924
FEDERAL REPORTER.
Pequot was coming, near the center of the river; and he was therefore bonnd to avoid crossing the center of the river and going to the left towards the Brooklyn side, under circumstances in which neither could see the other in time to avoid collision. The libelant is entitled to a decree against both vessels, with costs.
THE CITY OF MEXICO.
UNITED STATES
v.
THE OITY OF MEXICO.
(Diatriet Court. 8. D. New York.
November 30. 1880.)
1. 2.
ARREST-REASONABLE CAUSE-SECTION
970, REV. ST.-OFFICERS PROTECTED. Persons who carryon trade up to the brink of illegality must avoid at their peril additio,· .tl circumstances of suspicion, whether in the suppressio veri 01' suggestio fat8i. Reasonable cause, under section 970, Rev. St., Is the same as probable cause; and where reasonable grounds appear for the belief that the law has been violated, it is the duty of the officers to arrest apparent offenders; and that section makes it obligatory on the court to grant a certificate for their protec· tion.
SAME-PROBABLE CAUSE-CERTIFICATE.
8.
SAME-STATEMENT OF THE CASE.
The steamer City of M. was chartered for the benefit of the insurgents at Barranquilla to carry arms for their use. The manifest filed by her agents be· 'fore sailing did not state that she had arms aboard. The supplemental mani· fest was delayed long after the time allowed by law, and a false destination was given. An agent of the insurgents accompanied the ship. and as soon as her arms were discharged at Barranquilla she departed for Rio Hacha with a troop of soldiers, who captured the custom-house officers, and afterwards attempted to make use of the steamer to capture a Colombian vessel; and the mate made affidavit of the unlawful intent of the expedition. Held, that these. with other circumstances, afforded probable cause for arrest of the vcdsel, and that a certificate thereof should be issued, though upon the trial the vessel was discharged.
In Admiralty. William DOfsheimer, Atty., S. B. Olarke, Assist. Atty., for the United States. W. W. MacFarland for claimant. BROWN, J. The City of :Mexico having been seized by the collector for an alleged violation of the neutrality laws, and afterwards, upon trial, released by this court, (24 Fed. Rep. 33,) application is made on behalf of the collector, under section 970 of the Revised Statutes, for a certificate of reasonable cause. By that section of the statutes it is made obligatory upon the court, in case it appears that there was reasonable cause of seizure, to cause a proper certificate thereof to be entered; and, in that case, neither the person who made the seizure nor the prosecutor will be liable to suit therefor. The "reasonable cause" referred to in this statute means the same as prob-
THE CITY OF :MEXICO.
925 In Locke v. U. ,
able cause. Stacey v. Emery, 97 U. S. 642,646. 7 Oranch, 339, MARSHALL, C. J., says:
"The term 'probable cause,' according to its general acceptance. means less than evidence which would justify condemnation, and in all cases of seizure has a fixed and well-known meaning. It imports a seizure made under circumstances which warrant suspicion."
In Stacey v. Emery the court say: man of prudence and caution in believing that the offense has been committed, it is sufficient." "If the facts and circumstances before the officer are such as to warrant a
Upon a review of all the circumstances of this case, there appears to me to have existed such strong ground of reasonable suspicion as fully to justify the collector in making the seizure and putting the vessel on trial. It is true that nearly all the proofs that were afterwards produced in court, and upon which the court acquitted the vessel, were before the collector; but these facts and circumstances were such as might well give rise to diverse views; and though the court released the vessel, it was upon a favorable construction of numerOus circumstances upon which it cannot be said that even cautious minds might not have drawn contrary inferences. The circumstances unfavorable to the steamer were mainly those arising from the acts and of her own officers, and of her agents or representatives here. Had the court been satisfied that the Rio Hacha expedition was concerted before the vessel sailed from New York, her forfeiture would have been decreed. Whether that was so or not, depended upon inferences of fact to be drawn from all the circumstances. There were many unfavorable circumstances tending to create a strong suspicion that that enterprise was planned here. It was entered upon very shortly after the vessel arrived at Sabanilla. The violation by the vessel of the regulations upon clearing, her false destination, the false description of her cargo in the manifest filed before sailing, and the long delay in filing the supplementary manifest, in which the shipment of arms and military stores were stated under a false destination, coupled with the presence of a representative of the insurgents on board, and the departure from Sabanilla within a few days after arrivaUhere upon the unlawful expedition to Rio Hacha, were all acts of the officers and agents of the vessel. The affidavit of McCarthy, though untrustworthy alone, was corroborative of the natural inferences to be drawn from the above circumstances. The action of the collector in the case was conducted with deliberation and caution. He acted upon full consultation with the United States attomey, and under his advice. The circumstances, in my judgment, were such as to justify their decision that the vessel ought to be put upon trial for an apparent offense, and that could only be done through a seizure. The long custody of the vessel arose only through the claimant's failure to bond the vessel by the means provided by law. As it is not the province of the collector, or of
926
the United States attorney, hill adviser, to pallll final judgment in regard to the merits of cases in which there is suspicion of a violation of the law, so neither should they be required to take upon themselves the responsibility of forbearing prosecution where many circumstances concur in indicating that the law has been violated. The due administration of justice requires that such officers shall be vigilant and fearless in prosecuting all probable violations of law. On the other hand, it is but reasonable to hold that those who carryon trade along the very brink of illegality should avoid at their peril any additional . circumstances of reasonable suspicion, and all false declarations, whether in the suppressio veri or suggestio falsi, that afford natnral inferences of illegal pursuits. Notwithstanding the learned and able argument in behalf of the vessel, I think a certificate of reasonable cause should be issued.
THE
HATHAWAy.1
(Distr'lct Oourt, E. D. New York. June 8, 1885.)
1.
A steamer bound up the coast on a clear, starlight night, off Barnegat, made the green light of the I utch brig A. some three points off her port bow. The brig was sailing close-hauled on as. S. E. course, and the vessels were on crossing courses, and a collision took place. Held, that the conceded fact that the steamer did not slow at once cast doubt on her assertions that she immediately starboarded to pass under the brig's stern, and that the brig luffed, and frustrated her effort. On the evidence, the steamer did not make any effectual movement to pass under the brig's stern, and that the brig held her course until the instant of collision, and her luffing then did not tend to cause the collision, and the sole cause of the collision was the failure of the steamer to see the brig sooner. 2. SAME-FOREIGN VESSEL-TORCH-LIGHT-SECTION 4234. Section 4234 of the Revised Statutes creates no obligation on a foreign vessel on the high seas to show a torch to an approaching steamer, and failure to do so was not negligence on the part of the brig.
COLLISION-STEAMER AND BRIG-CROSSING COURSES-LOOKOUT.
In Admiralty. · Jas. K. Hill, Wing fi Shoudy, for libelant, W. H. Meursing. E. D. McCarthy, for the steamer. BENEDICT, J. The evidence shows that on a clear, starlight night the fishing steamer A. M. Hathaway, bound up the coast, and off Barnegat, made the green light of the Dutch brig Anna approaching, and some three points off the steamer's port bow. The brig was sailing close-hauled on a S. S. E. course, and the vessels were therefore on crossing courses. The steamer, upon seeing the brig's lights, did not immediately stop, but she says that she immediately starboarded her helm, intending to pass under the brig's stern, and she claims that 'Reported by R. D. & WyIlys Benedict, Esqs., of the New York bar.
THE A. M. HATHAWAY.
927
her effort was frustrated by a luff on the part of the brig. The vessels came in contact, the port bow of the brig striking on the port bow of the steamer, the brig's jib-boom bringing up near the foremast of the steamer. No damage of any consequence was done to the steamer. For the damage done to the brig this action is brought. Upon the evidence, I am unable to find that the steamer made any effectual movement to pass under the brig's stern. That she did not slow her engines immediately on seeing the brig is conceded. It is not improbable, in view of the proximity of the brig, that she would have kept up her speed jf her intention had been to let the brig pass across her bows, and the failure to slow at the instant, therefore, casts doubt upon her assertion that she starboarded when she says she did. The testimony of her lookout shows that she made no substantial change of course. If the steamer's course was not changed to port, a luff on the part of the brig, if made, would not have increased, but would have diminished, the danger of collision. Whether the brig luffed or not becomes, therefore, an immaterial question. The slight damage to the steam-ship indicates that the brig was near up in the wind at the time of striking. But I think there is no doubt that she held her course until the instant of collision, and that her movement then did not tend to cause the collision. In addition to the charge of luffing, the steamer charges thA brig with negligence, because she omitted to display a torch, as required by section 4234 of the Revised Statutes. It is a fact that the brig did not display a torch, nor was there anything in the surrounding circumstances to lead those on the brig to believe that the lights that were displayed would not be seen by those on the steamer. The night clear, and the brig carried the Ol'dinary red and green side lights, burning brightly. But the contention is that the failure of the brig to show a torch is conclusive proof of negligence, because she thereby failed to comply with a requireme.nt of the law. Failure to comply with the statutory requirement in question may be conclusive proof of negligence on the part of It vessel, subject to the provisions of the statute; but failure to comply with the statute by a vessel not bound by the statute does not prove negligence on the part of that vessel. In this case the brig was a foreign vessel sailing the high seas. Our statute, section 4234, created no obligation on her part to display a torch, because not applicable to her. Section 4234 of the Revised Statutes is taken from section 70 of chapter 100 of the Laws of 1871, (16 St. at Large, 459.) The original statute contained a proviso, found in section 41, expressly exempting foreign vessels from the requirements of the act. This provision is now found in title 52 of the Revised Statutes,-a title relating to steam-vessels,-but, notwithstanding its insertion in a title relating to steam-vessels, and the limitation of its effect to steam-vessels, as inserted in the Revised Statutes, it may, I think, by virtue of section 5600, be given the effect originally intended, and be held to exclude foreign vessels from the requirement in section
928
4234. At any rate, the existence of the provision in the original statute, coupled with the absence of any language in section 4234 indicating an intention to include foreign vessels within the scope of the section, warrants the conclusion that there was no intention on the part of congress by section 4234 to create an obligation upon a foreign vessel sailing the high seas to show a torch to an approaching steamer. Nor was such an obligation on the part of the brig created by the laws of her own country, nor by any rule of navigation ordinarily observed by those navigating the sea. Whatever conclusion might have been compelled by the omission on the part of the brig to display a torch, if she had been an American vessel, the brig, not being an American vessel,-a premise necessary for the conclusion that her omission to show a torch was negligence,-she has not in this particular disregarded any obligation binding upon her. I am well satisfied that the sale cause of the collision was the failure of those on board the steamer to see the brig sooner than they did, and as soon as they might have done, had they kept a vigilant lookout. Let there be a decree for libelant, with an order of reference to ascertain the amount.
Em>
OF VOLUME
25.
