39 F. 429 | E.D.N.Y | 1889
This case comes before the court upon exceptions to the libel. The libel is plainly defective in that it fails to disclose what statute of the United States is relied upon. This defect may be amended.
It remains to be determined, upon the exceptions taken by the owners, whether the libel can be maintained as against the vessel. The libel being taken to aver a carriage by the steam-ship Scotia of 29 passengers in excess of the number allowed to be carried by the first section of the act of 1882, and also to aver that by virtue of the thirteenth section of the act a lien attached to the ship for an amount equal to $50 for each.of said passengers, to-wit, the sum of $1,450, the objection is raised by the claimants’ exceptions that the libel is fatally defective, because it omits to set forth that the master of the steam-ship has been tried and convicted for the carrying of such passengers, and in such criminal proceeding fined in the sum of $1,450. While it must be admitted that the language employed in framing the thirteenth section of the act is poorly adapted to carry into effect the design indicated, still I incline to the opinion that it can be held sufficient for that purpose. Looking at the theory upon which the act of 1882 fs framed, each section of the act may be taken as a statute by itself. In this instance the libel is to be taken as framed under the first section, by which section a definite fine of $50 for each passenger in excess is required to be imposed by the court on the master upon his being convicted of having done the acts forbidden. This provision is supplemented by the provision in the thirteenth section, a provision applicable to all the sections of the statute, where it is provided “that the amount of the several fines and penalties imposed by any section of this act upon the master of any steam-ship * * * for any violation of the provisions of this act shall be liens upon such vessel, and such vessel may be libeled therefor in any circuit or district court of the United States where such vessel shall arrive or depart.” Upon this language it has been argued that the statute requires allegation and proof of a conviction of the master in a criminal proceeding and the imposition upon him of a fine equal to the sum claimed to create a liability on the part of the vessel. But it will be observed that the statute does not speak of