670 THE LA NINFA.·
BlsAL
F'Ismmms.,-BmUN&Su-FoBPBITUaB 01' V ' B I ! S E L . , · . ' , a,nA.mElrl,can vE!ssel on a voyage t$ltEm tbe do, 'minion of' tbe UniWd l3tates, in Bering' sea, .sbe is subjec'ttc forfeIture, under . Acts. Congo July 27. lS68,.and MarClb 2. is not exempted by the foot that. after. the sllal,r slle lloarded \)ya U ni,w,t} revenue served with the pteS1dent'li proclamatIon, and warned to leave the se" after which abe makea nofulltber attempte to.make seal. " .' , . .' '. .'
"InAdmiralty. / ; The\Tesselwllsrlibeled for'8'Violation,of'section 1956, Rev. St. U. S. This section, as passed J u]y27,1868,providedthat "no person shall kill any * * ,fur 'seal ** '" :' "within the limits of Alaska territory, or. in the w!lters thereof,,' * * *, and all veSsels, their tackle, apparel, furniture, and cargo-, found in violation of this section shall be forfeit,M." By an act approved March ,2, 1889 t , the' section. above quoteq. wasdec]ared "to include and apply to all the,domihionof the UIiited Stales· in the waters of. Hehring!t!ea," and thSit it should be the duty:of the president, attLny timely seSiSon in each year, to'issue his 'proclamation, and:cause same to be published, warning all persons against entering said waters for the purpose of violating .the provisions 'of said section; and that he should cause one, or 'more vessels of the United States to diligently cruise said waters, and arrest all persons and :seize all vessels found to beortO.jhave been,engaged in any violation of the laws .ofthe United States ,therein. 25 U. S. St. at Large,p. 1009. Iffhe proolamlJ.tionabovepro'rided for was issued president on IApri1.4,1891. ld.p. On the 15th day of June,:1891, another pr()clamation was made by the. president, reciting that an agreement, had ibeen .made"between. the government of the United States and the gov,emment ,of her Britannic majesty for modus vivendi in relation. to the fur Elea1 fisheries. in Behring sea, fot· the purpose of avoiding irritating dif'ferences" and with a view to. promote the friendly settlement. of the qnestionpending between· the two· governments touching th$u: respecliye 'rights in Behringlilea, and for the preservation of the seal species." By that agreeJDent this government. bound itself to. the government of her 'Britannic: majesty to prohibit seal. killing until May, 1892, in that part of. Bering se,a lyingea.stwurd:the line of demarcation described in article No.1 oitha treaty of 1867 betwoonthe United States.and Russia, anuon the shores and islands thereof, the' property of the United States, ine:x.eeas., Qf a certain number, and tQ pl!om ptly use its best efforts· to tb.e:;observance of this prohibition by United States citizens and vessels. The agreement fUdherprovidad' that "every y,essel or pel.1'lOn offending against this prohibition in the said waters of Behring sea out. side of the ordinary territorial limits of the United States" might be
*
DDERALREPOBTER,vol.49. seized and detained by the naval or other duly-commissioned officers of either of the contracting parties. The evidence shows that on July 7, 1891, the schooner La Ninfa was boarded in Bering sea, about 30 miles off St. Pa,ul'iJ'ilrlalld, 1:Jyau\officer of the United States steamer Thetis, under orders from the government to board all vessels in that sea, and, if they were engaged in.:sealing,to give thent a copy of the proclamation of the president bearing date June 15, 1891, and a letter of warning to leave the sea.at once. ,The La Ninfahad then on ,board 19 seala, some Qf, which,th'e captain stated to the boarding officer had been killed in Bering sea. The president's proclamation and letter of warniug delivered by the officer to the captain, and a memorandum to that effect indorsed upon the ship's papers by the officer. Afterwards, on July 14, 1891, two officers of the United States revenue cutter Corwin, acting under the same orders, boarded the La Ninfa in Bering sea, 10 miles or more {rom and north of St. Paul's ,island; and it being found that· she had a sealing outfit of boats and' guns, and 19. fur seals on board, some of l'I'hichthe captain admitted also to these officers had been taught in Bering sea, and that she bad been previously warned, as above stated, to leave the sea, the vessel was seized. The log-boqk showed that 14 of the seals had been killed in Bering sea on 'July 6th, the day beforetbevessel was boarded by the Thetis, and the day after she sidled through Unimak pass, into the sea. It is not claimed that after that time any attempt was made to kill seals. The vessel had a complete whaling gear on board,and was bound on a whaling O.&Johnsfm, U. S. Dist. Atty. J.G.Heid, for claimants. BuuBEE, District Judge, (orally.) The only contention on the part of claimant is that the La Ninfawasnot liablefo seizure or condenination, because of the facts that after the delivery Of the letter of warning and the president's proclamation there was no violation of the law, and that the vessel, being a whaler, had a right to remain in the sea. But it is very plain that the law was violated when fur seals were killed within the d()main of the United States in the waters of Bering sea; that is, on July 6th, as shown by the log-book. The La Ninfa had an American register and an American owner. Whatever jurisdiction the United States may have over foreign vessels sealing in Bering sea, American bottoms are governed by the act of congress above cited. If the vessel had not been served with the warning and the president's proclamation she might still have been seized and was liable to condemnation. Indeed, it may be said that the president's proclamation cuts no figure in the case. It aimed at nothing except to proclaim the modus vivendi. It could· not alter the law. The fact that after the violation of the law the vessel, instead of being seized at once, was warned to leave ,the sea, gave it no immunity from punishment after the actual seizure. The vessel is therefore declared forfeited.
DB 1'. B. STANWOOD.
677
THE F. H. STANWOOD.! CooPER t1.
THE F. H. STANWOOD et ale
(C1Ircuit Oourt oj Appeals, Seventh Circuit. March 8, 1892., IUBITIJIB LIENS-SBRVICES-DAMAGE FOB TOBTS-PRIOBITY.
Amaritbne lien for damages arising from a collision caused by negligent navigation over the lien of the crew of theo:lfendlng vessel for wages earned by them on board such vessel before the collision, but is SUbordinate to the lien for suoh wages earned after the colll8lOn.
On Appeal from the District Court of the United States for the Northem District of Illinois. STATEMENT BY
JENKINS, DISTRICT JUDGE.
tember, 1890, and within the admiralty jurisdiction, negligently collided with and sank the canal propeller Whale. The crew of the tug consisted of three persons, a pilot, an engineer, and a fireman.. On the 20th of September, 1890, the owner of the Whale filed his lioot in the district court, seeking reparation for the wrong. The Stanwood was arrested, and afterwards, under decree of the court, sold by the marshal, and the proceeds covered into the registry of the court. The claimants of the tug intervened for their interests, and, upon hearing, a decree passed for the Iibelant sustaining· his claim and assessing the damages. On the 4th day of October, 1890, the engineer and the pilot filed an intervening Iibelto recover their wages, subsequently amended to include the claim of the fireman. These wages were mainly earned prior to the collision; a portion of them subsequently thereto, and before the filing of the libel. On the23d day of November, 1891, an order of distribution was made directing payment of the claims for wages for the season of 1890 in priority to' the claim for damages by the collision. The fund was insufficient to pay the libelant in full. He thereupon appealed frOIIl the order of distribution. Reversed. John O. RichbfJrg, for appellant. O. E. Kremer, for respondents. Before GRESHAM, Circuit Judge, and JENKINS, District Judge. JENKINS, District Judge, (after stating tk facts.) The record presents the single question whether a maritime lien arising out of damage done in a collision caused by negligent navigation should be subordinated, 'with respect to its payment, to the maritime lien of the crew of the offending vessel for wages earned by them on board of such vessel. It is undoubted, as a general rule, that, as against claims arising ex contractu, the claim for seamen's wages is preferred. This is stated to arise out of the needed protection extended by the admiralty fEll I
In Admiralty. The tugF. H. Stanwood, on the'18th day of Sep-
Reported by Louis Boi80t, Jr., EIq., of the Chicago bar.
v.49F.no.7-37
.