46 F. 665 | E.D.N.Y | 1891
This is a proceeding in rem to charge the steam-ship Bombay with a fine for dumping ashes in the lower bay of the harbor of New York. It is taken under the statute of the United States passed June 29,1888, (25 St. at Large, p. 209,) entitled “An act to prevent obstructive and injurious deposits within the harbor and adjacent waters of New York city, by dumping or otherwise, and to punish and prevent such offenses.” The libel in the first article charges that on the 8th day of October, 1889, the master of the steamer Bombay, being on board and in command of her, did unlawfully deposit ashes and cinders in the tidal waters of the harbor of New York, in violation of the provisions of the statute above referred to. In the second article the libel charges that the ashes and cinders deposited as aforesaid were brought and carried to said place where they were dumped in and-by the steam-ship Bombay, and the said steamer was then and there used and employed in violating the provisions of the statute aforesaid. By the second section of the statute referred to it is made a misdemeanor, punishable by fine and imprisonment, for any person to be engaged in, or aiding or abetting, or otherwise instigating, the deposit or discharge of ashes or cinders in the tidal waters of the harbor of New York; and the last clause of the fourth section of the statute declares that “any boat or vessel used or employed in violating any provision of this act shall be liable to the pecuniary penalties imposed thereby, and may be proceeded against summarily, by way of libel, in any district court of the United States having jurisdiction thereof.” The answer raises two issues: First, whether the violation of the act set forth in the libel was committed by the master of the steam-ship, or authorized or instigated by him, as charged; second, whether the steamer was used or employed in that violation, within the meaning of the statute.
It appears in evidence that while the steamer Bombay was proceeding through the harbor of New York on a voyage from New York to Baltimore, in the pursuit of her calling, which was that of a common carrier
It was contended in argument that in the case of The Anjer Head the decision was that under this statute it must appear that the ship was devoted by her owners to the business of dumping ashes before the ship could be held liable; in other words, that the act applied to dumping scows only, and not to steamers engaged in transporting freight and passengers through the harbor of New York. But I do not understand the decision in that case to go to that length. Such a decision would render the statute inoperative to remedy one of the serious evils intended to be reached, — namely, the dumping of ashes from steamers in the lower bay. The steamer Bombay, having thus been found to have been used in violating the provisions contained in the first section of the statute above referred to, is by that statute made liable to the pecuniary penalty provided by that section, which is a fine of not less than $250 nor more than $2,500. It will be sufficient, I conceive, to fix the amount of her liability at the lowest figure permitted by the statute, and it is accordingly fixed at the sum of $250.
Let a decree be entered, condemning the steamer in the sum of $250 and costs, and ordering that a decree be entered against the stipulators for such, in accordance with the practice of the court.