THE NELLIE MAT.
IMs further insisted that the procE:edings before the clerk of the cir(luit court were defective and insufficient to effect a removal of the case from "the state court, in that no writ of habeas corpus cum causa was issued by said clerk; As the defendants were on bail. and not in actual custody, a writ of habeas corpus was unnecessary. The bail bond filed in the state court, by express provision of law, was effectual to secure the appearance of the defendants in the circuit court. The defendants made no application in their petition for a writ of habeas corpus. Before such a writ can be properly issued, it must be applied for, and the petition must allege that the party is im prisoned or detained against his will. without authority of law. I have prolonged this discussion further than I at first intended. The judgment of the superior court against the defendants for the offense with which they were charged and convicted by a jury was not oppressive or unreasonable. I feel sure that the judge of the superior court, in his ruling, was prompted by a high sense of judicial duty. I entertain the highest respect for the state supreme court, and read with pleasure and benefit its able, learned, and instructive opinions; and I sincerelyregret thatan occasion has arisen which has produced a conflict of judicial opinion and authority.
(District Court, D. Rhode IsZana. May 27, 1899.)
'PBNALTIES AND FORFEITURES-PA.SSENGER ACT-LIBEL IN RE)r- WHEN MAINTAI1UBLE.
Under the passenger act of August 2, 1882, (22 St. at Large p. 186.} a libel against a IIhip_ to-recover the penalties for violation of that act can only be maintained after the shipmaster's trial and conviction of the same offense, and for the purpose of enfofdng payment of the fine imposed upon him.
In Admiralty. Libel to recover penalty for violation of the passenger act of 1882. Dismissed. Rathbone Gardner, Dist. Atty., for the United States. Amasa M. Eaton and Walter B. Vincent, for claimant.
CARPENTER, District Judge. This is an information and libel filed by the attorney of the United States for this district against the schooner Nellie May, wherein it is alleged that the said schooner is an American vessel, belonging to a citizen of the United States, and that Joas J. Godinho, being master of said schooner, has transported from Brava to Providence 48 emigrant passengers without there having been provided for said passengers the accommodations required by an act to regulate the carriage of passengers by sea, approved August 2, 1882, and in violation
of tbiDd, and fifth sections of.thi.h.ctj' and' that byfea8on,the1'8ofltlYfJvesW has become' Iiable to the pelil&ties.providedrby said Mt.:'lClahn,is\madeby AntonidCoelho, partownerofith.e vessel"who dismissed, becatlseit is not therein, alleged that moves :thll.tthldibel Godinho haS ,been convicted oLthe alleged infraction of the statute. I am clear that the libel must ,be dismissed. The whole scheme of the statute (22 St: 'at Large, p. 186) is to forbid the' performance of certain acts by the master of a vessel, and to denounce against him various penalties for :disobediencej :and it further provides in "That of the several fines and penalties imposed by any sectionol this act upon the master ... ... ... for any violation of the provisionA ofthis act upon, such· vessel. and· such vessel may be Ii.beled therefor district court of the United states where shall in any arrive or depart." ThevesseUl;l thus ,liable tor the fines imposed by But the act n9,fine except upon such as hav:e,beeJ:l convicted. It su!. for e;lliaPlple, in. the· fil'St section, that "tqe master of a States in violation of either vessel cO[lling:,to a por,tor place in the of this. section *. ** shall be .fine<i fifty dollars, * * * and may also be not six months." Doubtless, however, in this and all similar clauses of the act the words "being duly convicted" are necessarily implied. The words of t,he statute therefore do not impart a primary liability of the vessel. And a consideration of the whole scope of the statute, I think, makes it clear that the liability of the vessel ollly ancillary, and that the purpose of the remedy by libel against the vessel is only' to enforce the payment of a penalty already primltrily denounced by judgment against the master. The lien on the vessel "is a security for the payment of the fines. If it be not so, then the owner of the vessel might be compelled in the admiralty to pay the penalty for acts which, according to the judgment of law side, have not been committed. Results such as the court 0.0 this do sometimes happen as the result of lawiul proceedinlts in court, but they ought not to happen in consequence of the Judicial construction by the same court of two .clauses in the Bame statute. Libel dis. missed.
, '1'BE 'VENEZUELA. '
OJ' NORTH AMERICA
MERRI'l'T et 'al. ". SAME.
Court, B. D. New Yor7c. May 14, 181lS.)
IhLVA8l1-STltANDING-MUJTS OP DJPP!!RBNT BALVORS..,...sUBORDJNATB
The steamship Venezuela went'ashore on Brigantine shoals, oifthe ooast of New Jersey. Heragentll in New YorkeIUployed tbelibelants Merritt et al. to 1l0at her, and several were at once dispatched by the latter with wrecking appliances. , Prior,t6 their arrival at the ship, a wrecking steamer and lighter belonging to tbe,Ubel811ts the Insurance Company of North America et al. had arrived at the had oifered their services, were declined bY,the master of the Venezuela on the ground'thatthemattel" had been referred to the agents in New Ydrk. :On the arrival of tli,e Merritt services of the vessels of the otber libelants were accepted ,by the master in charge of the Merritt boats, but in no o,tberW8,y than, as" assisting him, and as subordinates to him,' and in his employment, The ship was taken oft by the united efforts of all the libelants. Separate li1:)els were thereupon filed by the salvors, to recover compensation for the service. ThEi evidence showed that the oontrol of the service rested entirely with the Merritts; also that their appliances were two or three times greater than thQsEl of the other liblllants. The value of the Venezuela and her cargowas$lJOO,OOO. Herownera did not deny the salvage service. and oifered $40,000 as total salval\'e, which was agree<l,to.H(!ld. that the libel of the insurance comp,any. though that oompany acted as ,a subordinate helper only, could not be dismissed; that the only question 'remaining was as to the shares of the difterentlibelants; and that Merritt & Co. ahould receive $83.000, and the other libelants $6,500.
In Admiralty. Libel for salvage. Decree for libelants. George A. Black, for Insurance Company of North America. Benedid Benedict, for,I. J. Merritt and others. <hudertBr08., for the Venezuela.
BROWN, District Judge. On the 5th of February, 1892, the Venezu.ua, a/lteamship of 2,900 tons, went ashore on Brigantine shoals, off the coast of New Jersey. The value of the steamship, cargo and freight, upwards of $900,000. She was got off between 2 and 3 o'clock A.H. of February 7th, through the united assistance of the aboveDaDled libelants as salvors, all of whom are engaged in that business. The above libels were filed to recover salvage compensation. The answerto each libel admits the rendering of a 118lvage service, but denies [lome of the matters stated in the libels, ,and alleges that the ship was got off mainly by the use of her own engine. The causes were heard together. At the commencement of the trial the defendants offered to allow decrees for $40,000 for the whole service, which has been agreed t9 by the libelants as a fair compensation for the whole work; and the trial proceeded with reference to the respective rights and shares of the two libelants. The evidence shows that at about 4 o'clock in the afternoon of February 5th" a telegram was )'eceived by the agents of the Venezuela in New York, stating that the steamship was aground; that the Merritt Wrecking Company was on the same afternoon employed by them to get the