25 F. 601 | E.D.N.Y | 1885
Lead Opinion
This is a proceeding in admiralty to enforce a lien upon tbe steam-boat Hazel Kirke, for certain penalties alleged to have been incurred by reason of the taking on board said vessel a greater number of passengers than allowed by her certificate of inspection. Tbe libelant, Robert Elliott, seeks to recover these penalties by virtue -of sections 4465 and 4469 of tbe Revised Statutes of the United States, which are as follows:
“Sec. 44-65. II. shall not be lawful to take on board of any steamer a greater number of passengers than is stated in tlie certificate of inspection; and for every violation of this provision the master or owner shall bo liable, to any parson suing for the same, to forfeit the amount of passage money and ten dollars for each passenger beyond tlie number allowed.”
“Sec. 4469. Tlie penalties imposed by sections 4465 and 4468 shall be a lien upon the vessel in eacli case. * * *”
In pursuance of .these statutes the said corporation was in June and July, 1883, engaged in transporting passengers and freight between East New York and Far Rockaway, by means of a railroad running between East New York and Canarsie, by means of steamboats plying upon Jamaica bay, and by means of a railroad running between Rockaway beach and Far Rockaway. For the purpose of such transportation the said corporation used, the steam-boat Hazel Kirke to carry freight and passengers between Canarsie and various piers, four or five in number, which put out from Rockaway beach into Jamaica bay. The boat made five or six trips a day, stopping at one place in the bay between Canarsie and Rockaway beach, each trip requiring some two and a half hours of time. Rockaway beach is a place of summer resort upon the ocean. On one such trip made by this boat on June 24, 1883, there were taken on board and transported 289 passengers; on another such trip, made on the same day, 365 passengers .were taken on board and transported in said steam-boat. On another such trip, made July 1, 1883, 375 passengers were taken on board and transported on said boat.
At the time those passengers were so transported, the Hazel Kirke was running under a certificate of inspection granted May 24, 1883, on the application of her master pursuant to the provisions of title 52 of the Revised Statutes of the United States, which certificate states that the said steam-boat “is permitted to navigate for one year the waters between Canarsie bay and Rockaway, Long Island,” and “is allowed to carry 250 passengers.” Because of the transportation on the trips above mentioned of the above number of passengers, being 279 in excess of the number allowed by her certificate of inspec
No serious contest has been made in respect to the facts; but the liability of the steam-boat is denied, and it has been earnestly contended that the provisions of statute upon which this prosecution rests are not applicable to this steam-boat—First, because she was not engaged in interstate or foreign commerce; second, because she was a ferry-boat.
The first matter of inquiry presented by this defense is whether, upon the evidence in this case, this steam-boat, when she transported these passengers, was engaged in purely internal commerce. Certainly it does not follow that she was so engaged, from the fact that all the places at which the vessel touched were in the state of New York. It is entirely possible for a vessel to be engaged in interstate commerce, although all the ports touched by her are in the same state; and my opinion is that, in the absence of evidence to the contrary, it is to be inferred from the route pursued by the boat, the connection between the boat and a railroad at each end of her route, the manifest connection between tlie railroad terminating at Bast New York and the railroad system of the United States, that this boat was, to some extent at least,—to what extent is immaterial,—engaged in interstate commerce. She was used to enable the public to reach a well-known summer resort at the sea-shore, and her occupation affords assurance that, as matter of fact, she was used as an instrument for the transportation of passengers traveling between places out of the state of New York and places upon the sea within that state.
If, then, the inference above suggested he permissible, and it be found that the vessel was engaged in interstate commerce, the conclusion must follow that the provisions of statute above quoted were applicable to her, and that she, by virtue of these provisions, is subject to the lien sought to ho enforced by this proceeding.
But it has been contended here that such an inference is not permissible in a case of this character, and I therefore proceed to state some considerations which, as I conceive, compel a conclusion by this court that this boat is subject to the provisions of statute here sought to be enforced against her. And, first, I observe that the foundation of this proceeding is the violation of a certificate of inspection which had been granted to this vessel by virtue of the very statute now claimed to be inapplicable to her. When these passengers were carried the vessel was running under this certificate, by which a limit to the number of passengers she could legally carry was fixed, and this certificate had been issued upon the application of the master of the boat. This certificate was posted in a conspicuous place on the boat, and the boat was thus held out to the public as a vessel subject to, and which had complied with, the statutes of the United States un
The same conclusion is required by the other facts in the case, 'when to them is applied the law declared by decisions of the supreme court of the United States in cases to be now alluded to; for, according to these decisions, the provisions of statute upon which this prosecution is founded are applicable to this vessel, although it be found not proven that she was engaged in transporting passengers or freight passing between places outside of the state of New York and places within that state.
Here the inquiry, it will be noticed, is not whether this court, sitting in admiralty, has power to enforce a lien arising out of a transportation of passengers upon navigable waters of the United States. The power of the court in such a case is derived from the judicial grant of the constitution, in connection with the statute creating the district courts, enacted by virtue of that grant. Touching the jurisdiction of this court to enforce such a lien, if one be found to exist upon this vessel, no point is made. The question here relates, not te the jurisdiction of the court, but to the power of congress to create a lien upon this vessel, by reason of an act done when the vessel, although navigating navigable waters of the United States, is not shown to have carried passengers or goods moving from one state to another.
Such a power has been considered to have been conferred upon congress by the judicial grant,. (U. S. v. Burlington & Henderson Co. Ferry Co., 21 Fed. Rep. 332;) and, the grant of admiralty and maritime jurisdiction having been declared by the supreme court of the United States not to be limited by the commercial grant, (The Belfast, 7 Wall. 642,) it may be that when the transaction is declared by the judicial power to be within the admiralty and maritime jurisdiction of the United States, the power to make such a transaction the foundation of a lien, enforceable by courts having jurisdiction of all cases of admiralty and maritime jurisdiction, can be exercised by congress as incident to the power to create such courts. But the question
It may be said in regard to this decision that facts are stated in the opinion of the court justifying the inference that the vessel was engaged in interstate commerce; but the opinion makes no allusion to such an inference. The case contains no decision that the vessel was engaged in interstate commerce; and the vessel was held liable upon the sole ground that she was navigating public waters of the United States. The decision of the supreme court in the case of The MonteUo, therefore, seems to furnish authority for limiting the inquiry in this case to the question whether the Hazel Kirke was navigating public waters of the United States when she transported the passengers in question. If that he the limit of inquiry here, the decision is easy; lor the Hazel Kirke was navigating Jamaica bay,—an inlet of the Atlantic ocean,—which forms a continuous highway for commerce upon navigable water, both with foreign nations and among the several states. She was, therefore, transporting these passengers upon public water of the United States, and, according to the decision in the case of The MonteUo, was subject to governmental control. The
“She was navigating among the vessels of other nations. * * * True, she was not trading with them, but she was navigating with them, and consequently with them was engaged in commerce.”
That is to say, although not engaged in the same trade with the foreign vessels navigating the same ocean, the vessel was navigating with them upon a highway of commerce between nations, and therefore engaged with them in the' commerce there pursued. That was a case of the application of a statute of the United States to a vessel navigating the high seas, but engaged only in the transportation of goods and passengers moving between ports and places in the same state.
In view of these decisions I find it difficult to understand the positive assertion in behalf of the claimant that the law, as declared by the supreme court of the United States, forbids the application of the statute under consideration to this vessel unless it appears that she was engaged in transporting goods or passengers moving from one state to another state, or to some foreign port.
In this connection it may be well to observe that the statute under consideration was passed subsequent to the decision of the supreme .court in the case of The Daniel Ball, and its terms show that the power to subject vessels to such a statute was supposed by congress to depend upon the character of the navigation in which the vessel was engaged, and that congress intended to subject to governmental control all vessels navigating the public waters of the United States; for the statute in section 4400 declares that “all steam-vessels navigating any waters of the United States which are common highways of commerce, or open to general or competitive navigation, * * * shall be subject to the provisions of this title.”
But if these decisions permit a wider scope of inquiry than that above indicated, still the decision in the case of The Daniel Ball is an authority adverse to the contention of the claimant here. In that ease the act charged was done in a locality similar in its aspects to Jamaica bay. The decision in that case, therefore, compels a decision in this case that the waters of Jamaica bay are under the direct control of congress in the exercise of the power conferred by the commercial grant. That decision also declares that the commercial grant authorizes all legislation by congress appropriate for the protection or advancement of interstate or foreign commerce upon such waters;
“That power [the commercial power] authorizes all appropriate legislation for the protection or advancement of either interstate or foreign commerce, and for that purpose such legislation as will insure the convenient and safe navigation of all the navigable waters of the United States.”
Manifestly it is not possible for congress to fully control and adequately protect commerce with foreign nations and among the several states, when that commerce is pursued by means of vessels navigating the public waters of the United States, without controlling the navigation of all vessels navigating such waters, not only those engaged in commerce with foreign nations, and among the several states, but those engaged in domestic commerce, and those engaged in no commerce at all, like the yachts. Accordingly congress has undertaken to regulate the lights to bo carried by all vessels navigating such waters, and the courses to be pursued by all vessels meeting upon such waters, and these regulations are supreme and binding upon all vessels there navigating, because only by controlling in those particulars the navigation of all vessels navigating such waters, can the safe navigation of vessels engaged in interstate or foreign commerce upon such waters be secured.
Under this view of the law, declared by the supreme court in the case of The Daniel Ball, the decision of this case must depend upon the questions—First, whether the Hazel Kirkc was engaged in navigating public waters of the United States; and, second, if so, whether the provision of statute wdiich she has violated is a provision calculated to promote the convenient and safe navigation of such waters. Both these questions must be answered in the affirmative. The first does not admit of discussion; the second is free from doubt.
The object and effect of a provision forbidding the transportation upon a steam-boat of passengers in excess of her capacity is plain. It is a regulation respecting the load to be carried by the vessel, and it will-hardly be contended, I think, that the navigation of a vessel is not directly affected by the amount of her load. No doubt one effect of a regulation, confined as this one is to the number of passengers to be taken on board a vessel, is to promote the safety of passengers by insuring the safe navigation of the boat in which they are carried. But the safe navigation of other boats is, or may be, also directly affected by such a regulation. The ability of a vessel to stop, to turn, to give room in shallow water, depends, or may depend, upon her load; and her ability in these respects affects, not only the safety of her passengers, but the safety of passengers on other vessels navigating in the same locality. The ability of a vessel to navigate any water depends upon the capacity to navigate possessed by other vessels on
I have thus endeavored to show that the first ground of defense, based upon the character "of the travel for which this vessel was used at the time of transporting these passengers, is untenable. I now pass to the second ground of defense, namely, that the Hazel Kirke was a ferry-boat. Here the contention is, not that it is beyond the power of congress to prescribe regulations for vessels used in operating a ferry, but that, inasmuch as ferry-boats are by the express terms of the statute under consideration exempted from the operation of section 4465, this boat has incurred no liability under that section, because she was- a ferry-boat. Section 4464 provides as follows :
“The inspectors shall state in every certificate of inspection granted to steamers carrying passengers, other than ferry-boats, the number of passengers of each class that any such steamer has accommodations for, and can carry with prudence and safety. ”
And the question is whether, assuming that this boat was being used to maintain a ferry across Jamaica bay, the boat is therefore exempt from prosecution for violating in the matter of the number of her passengers the certificate of inspection under which she sailed. Here, again, my opinion is adverse to the claimant. The statute, by its terms, is applicable to “all steam-boats navigating any waters of the United States which are common highways of commerce, or open to general or competitive navigation, excepting public vessels of the United States, vessels of other countries, and boats propelled in whole or in part by steam for navigating canals,” and certain various regulations made by express words applicable to ferry-boats. It contemplates a separation of steam-boats engaged in carrying passengers into two classes for the purpose of inspection and approval. For ferryboats a special inspection is provided by section 4426, and by regulation 72 a special certificate designating the ferry route to which the navigation of the boat is to be confined. For general passenger boats inspection is provided by section 4464. Steam-boats of the latter class, when inspected, are to be inspected as to their capacity to transport safely a certain number of passengers, and to that number of
In the present instance, the master of the Hazel Kirke made application under the laws of the United States to have his vessel inspected and approved as a general passenger boat. Upon such application she was inspected and approved, and a certificate granted by which she was permitted to navigate the waters between Canarsie bay and Rockaway, and allowed to carry 250 passengers, and no more. By this application and consequent certificate, the character of the boat was fixed as a general passenger boat, allowed to carry 250 passengers. Whether the route which this vessel followed constituted a ferry, in the legal sense, is a question upon which no opinion is expressed; but assuming that it was a ferry, my opinion is that tho boat could not legally transport a greater number of passengers than she was allowed to transport by the certificate of inspection she carried. She did not become a ferry-boat within the meaning of tho statute merely by running upon a ferry route, but was a general passenger boat, subject to the limitation in the matter of her passengers which she had sought for herself and obtained when, upon the application of her master, she was inspected and approved as a general passenger boat, and not as a ferry-boat upon a particular ferry.
It follows from these views that a decree he entered in favor of the libelant for the sum of §2,803.95. The costs will follow the decree.
An action was also brought by the same libelant, Robert Elliott, against the steam-boat Rosa, to recover a similar penalty. The following is the opinion of the district court:
The facts in this case are similar to the facts in the case of the Hazel Kirke, except in respect to the number of passengers. The cases were tried together. In this case the excess in
The decisions of the district court in these cases, on appeal to the circuit court, were affirmed on July 15, 1885, the court delivering the following opinion:
Concurrence Opinion
I concur with the district judge in holding ’that the sections of the Revised Statutes on which these suits are founded apply to these vessels, although it is not shown that they were engaged in transporting passengers or freight passing between places outside the state of New York and places within that state. They were at> the time engaged in carrying passengers on the waters of Jamaica bay, which were public navigable waters of the United States, because they were open to the Atlantic ocean, and were thus a highway over which commerce might be carried on with other states and foreign countries. They were such waters as section MOO embraces. Congress undertook to assert its power of regulating vessels navigating such waters, and, under the grant of the power of regulating such commerce, it could prescribe what number of passengers vessels navigating Jamaica bay should carry.
I also concur with the district judge in the view that, as these vessels obtained certificates of inspection as general passenger boats, and not as ferry-boats, their character was thereby fixed; and their use on a ferry, if this transit was a ferry, did not make them ferry-boats, quoad the statute, or bring them within the exception in section 4464, or free them from the penalties imposed by section 4465.
In the case of The Hazel Kirke there must be a decree for the libel-ant for $2,803.95, and his costs in the district court, taxed at $58.05, and his costs in this court to be taxed; and in the case of The Rosa there must be a decree for the libelant for $1,236.15, and his costs in the district court, taxed at $58.05, and his costs in this court to be taxed.
