58 F. 694 | 9th Cir. | 1893
The plaintiff in error was, hy a criminal information presented by the United States attorney for the district of Oregon, and filed in the United States circuit court for that district, accused of committing an offense against the laws of the United States, in this: that for a period of 27 days, in said district, he did unlawfully harbor and secrete five seamen belonging to a vessel called the Invergarry. A jury was waived, and the case was tried before Hon. William B. Gilbert, Circuit Judge, who made his findings in writing, and thereupon adjudged the defendant to be guilty, and sentenced him to pay the penalty prescribed by section 4601, Rev. St. U. S., and costs, amounting to the total sum of $919.44, and committed him to jail till said penalty and costs be paid, or until he be discharged according to law. The information does not mention I he nationality of the Invergarry, hut hy Hie findings and opinion of the court it appears that she is a British vessel.
Binding that the judgment must be reversed, regardless of any conclusion to which we might; arrive concerning the points covered by tbe opinion of the circuit judge, we pass without consideral ion thereof to a question not discussed in the circuit court, but which nevertheless arises from the facts presented 'hy the record, viz. whether the harboring or secreting of seamen belonging to a foreign vessel is a violation of the statute upon which this case is founded. The nature of this question prevents application of the doctrine of waiver. We are obliged to give it consideration.
Section 4601, Rev. St., was originally enacted as the fourth section of the act of July 20, 1790, entitled "An act for the government and regulation of seamen in the merchant service.” 1 Stat. 133. In the revision it is included in the seventh chapter, entitled “Offenses and Punishments,” of title 53, entitled “Merchant Seamen.” This chapter is composed of the sections and clauses relating to offenses and punishments contained in said act of 1790; the act of September 28, 1850, (9 Stat. 515;) the act of July 27, 1866, entitled “An act to prevent the wearing of sheath knives by American seamen,” (14 Stat. 304;) and the act of June 7, 1872, entitled “An act to authorize the appointment of shipping commissioners hy the several circuit courts of the United States, to superintend the shipping and discharge of seamen engaged in merchant ships belonging to the United States, and for the further protection of seamen.” These several statutes were made to govern the conduct of American seamen within the territorial limits of the United States, and on hoard American vessels elsewhere within the admiralty and maritime jurisdiction of the United States. The title and context of each shows forth the intention of congress to make laws for the vessels and seamen of the United States; and hy section 4612 a definition of terms and rule of construction is given, which limits the application
In this opinion we are supported by a preponderance of the authorities. In Ex parte D’Olivera, 1 Gall. 474, (decided in 1813,) Mr. Justice Story, referring to the act of 1790, says:
“We are of the opinion that the act for the regulation of seamen exclusively applies to seamen engaged in merchants’ service of the United States. It may be a serious inconvenience that congress has not extended the provisions to eases of foreign seamen in foreign vessels, in compliance with that comity which it is understood many foreign nations exercise in favor or this country. Whatever may be the evil, we can only regret it. It is for another tribunal to apply the remedy.”
In 1873 Mr. Attorney General Williams, in a communication to the secretary of the treasury, gave the following opinion:
“The provisions of the act of 1872 relating to ‘discipline of seamen’ are nearly identical in language with, and appear to have been copied from, the provisions of the British merchant shipping act of 1854, relating to the same subject. In a case arising under the latter act, its provisions concerning that subject were held by the court of queen’s bench to have reference to British ships alone, (see Leary v. Lloyd, 3 El. & El. 178;) and I am inclined to the view that the provisions of the act of 1872, adverted to above, were intended by congress to apply only to seamen lawfully engaged for service on American vessels.” 14 Op. Attys. Gen. U. S. 326.
Judge Wallace, in the case of U. S. v. Kellum, 7 Fed. 843, and Judge Billings, in the case of The Montapedia, 14 Fed. 427, held the same way. In U. S. v. Minges, 16 Fed. 657,—a case exactly in point, —Judge Bond held that section 4601 does not apply to cases of harboring or secreting seamen belonging to foreign ships. To the contrary are the decisions by Judge Deady in U. S. v. McArdle, 2 Sawy. 367, and U. S. v. Sullivan, 43 Fed. 602, and the decision of Judge Benedict in U. S. v. Anderson, 10 Blatchf. 226, in which Mr. Justice Blatchford concurred.
By the act of June 9, 1874, (18 Stat. 64,) and again by the act of August 19, 1890, (1 Supp. Rev. St. [2d Ed.] 780,) congress has declared the effect to be given to the shipping laws upon domestic vessels in the coasting trade. But notwithstanding the fact that public attention was, by the opinions above quoted from, called to the omission to extend these laws to foreign vessels and seamen, it has failed to change them, in this respect, either in the revision or subsequent amendments. From this we think that acquiescence on the part of the legislative branch of the government in the interpretations given by Story and Williams may be fairly 'inferred. Judge Deady gives excellent reasons for the making of suitable laws
Judgment reversed, and cause remanded, with directions to discharge the defendant.