: THE EMPEROR.
75t
If the )llltcome 'to the. conclusion that the a valid that there has been infringementori the part of-the defendantsthey can award damages to the plaintiff, but not to exceed the amount cliiimed, $1,600. The iliq,'returned a favor of the plaintiff in the of $1.600..
THE EMPEROR. UNITED STATES t1.
THE
EMPEROB.
(DI8trict aourt.1il. D. New York. ,February 29, 1892.) PBxALTJ1!lB AND, DUMPING-ACT OJ' JUNB II "PERSON OJlFIINDING"-WUBN TUG NOT "USED OR EMPLOYED"INVIOLATING'ACT.
:The act of June 29, (25 St. at Large, p. 209.) provides that'muq shall not be du,mped within certain around the port of New York; that ,every person, firIn, or cQrporation engaged in removinjt mud shall be responsible for its deposit outside'of such limits; that for every violation of the law the person o:l!ending shaUbe deebled guilty of an o:l!ense against the act; and that any boat used or emP10Yedin,.v,iola,ting theIH',aviSion,s of the alltshall be,liab1lt, "\;0,, a,penalty · , on,suit brougbt to recover such penalty against a tug which, with scows, was on bel' way to tbe ground in tbe usual course, and well out to sea, but still within t1le prohibited limits, when the llCOw·men. who were in 110 way connected With the tug, with their own volition, and, without the knowledge of tholleOnthll tug, and contrary, to her captain's express, orders, dumped the scows, held, that neither was the master of the tug a "person o:l!ending," within the meaning of the act, nol' was the tug "used or employed n in the illegal act. of the scow-men. '
In Admiralty. SUlt to recover a penalty for dismissed. Je88e Johnson,U. S. Dist.Atty., for libelant. Ch7penter for claimants.
tibel
BROWN, District Judge. The above libel was filed under the 'act or June' 29, 1888,c. 496, (25 St:'at Large, p. 209,) to recover against the tug EItlperor the penalties prescribed by that act for dumping within the prohibited limits certain mud excavated in the\'North river. The mud had beenloaded upon two,scows Nos. 19 and 34, belonging 'to thE:' Morris & Cumming Dredging Company, which after being loaded made to the stake-boat below Liberty 'island. The steam-tug EiIlperot; not belonging to that company, was employed to tow the two'S(l()WS' out to sea to the prescribed duIhping ground. Between12anlt'l o'clock on thenigpt of July 25th, she took the two scow-menbelbngingto'the scows from Jersey City, landed them aboard the scows, and: then proceeded down the bay "with the scows in tow on along hawser,having preViously obtained the permit {or dumping as required by the act. ':,,; i: The :eyiden<!e shows ':that when the tug took theacow-nlen' 'aboard 'at of them Bsid to theeaptilin of the. tug that hewtmld, give Ii whistle f)r show a light when the scows The'Clt'ptiliri re-
752
FEDERAL. REPqRTER,
vol. 49. had been in trouble
signals. of three or four whistles after he arrived at the dumping ground. While the tug was on the way to the dumping ground in the usual course and w.ell out. sea, but before arriving at the dumping ground, and while within the prohibited limits, the men on the scows, of their own volition and without the knowledge of those in charge of the tug, and without any signal from the tug, and contrary to the captailJ.'S previous orders, dumped the loads of mud through the bottom of the scows by drawing the fastenings of the bottom and allowing the mud to fall through in the easy way provided for that purpose. The scow-men were in no way connected with the tug. I must therefore treat the case as one in which the unlawful:dumping of the scows was in no respect by the act or volition of the owners of the tug, or of any person on board of her. The question submitted is whether the tug is nevertheless made liable for a Violation of the act. section .oithe act of 1888 provides as follows: "AU'mud," etc., "excavated from any slip," etc....and placed on any boat, 8CClW Clrvessel pnrpose of being taken or towed.upon the waters of the harbor: of New York to a place of deposit, shall be deposlted '" '" ... within such limits as shall be defined and specified, ... '" !It. '.and not otherwise. "Every person, firm or corporation being the owner of any slip, basin or shoal from which such lIlud," etc.· "shall be taken, dredged, or excavated, and every penon, firm or ,col'poration in any manner engaged in the work of dredging or excayatingany such slip, basin or shoal. or of remOVing such mud," .etc.,. "therefrom,' sll.all severally be responsible for the deposit and discharge of such mUd," etc., "within such limits so defined and prescribed; II< II< ... and for eVE'ry violation of the provisions of this section the person offending shall be guilty of an offense against this and shall be punished by a fine equal to the sum of $5 for every cubic yard of mud," etc., "not deposited or discharged as required by this section. "Any boat or vessel used or employed in Violating any provision of this act shall be liable to the pecuniary penalties imposed thereby, and may be proceeded against summarily by way of libel in any district court of the United etates, having jurisdiction thereof." . ;The lastsentence quoted, though forming a part ofsection t, is equally applicable to all sections of the act. The previous parts of section 4 are of section 4. The controverted quesconfined. exclusively tionis whetheJ;'the Emperor in this case was in violating" the act. It is urged that it should be so regliJ.'ded, because by the previous language 4 it is provided that every person, firm or corp()ration engaged in removing such, mud shall be "responsible for its liisqbarge" within the prescribed liQlits.' It is not easy to determine :what is the intent of this section as respects th,e use of the word for the sucqeeding clause of the same sentence is the only enacts any penalty or consequence ofvioll1-tion; that clause confines the penalty to tbe"person offending," and prescribes no punjsbmellt or fine except the per$on offeqding. I think the last :aIld limitation upon the "responsibility" enacted. clause is a by previous clause, in .so far at least as to prevent any conviction of
be!0f8; and that the scows should not ,be dumped until be gave the usual
plied that he would have no such thing done; that
THE EMPEROR.
753
an offense, or any punishment by fine, of any person who is not in some way connected by proof with the performance of the illegal act. The Emperor in the present case was proceeding in good faith to the prescribed dumping ground. .she could not reach it except by first going across the proHibited limits. There was nothing unlawful in her act or intent. Everything that she did was dC;>ne in the performance of her duty to take the scows to the proper placie; She was "used and employed" for that purpose, and for no other purpose. The beproper place was by no act, omission, or privity of the tug; britby' the willful and criminal act of the men on the scows, wholly. itid,ependent' Of the tug, and against the express orders of the captain: 1t seems to me very clear that neither the captain, nor any person on board of the tug, was the" person offending" under the preVious sentence ofsection 4; and that the tug was not "used or employed" in the of the scow-men. To hold her liable would to punish the innocet1t for the guiltYj a result never to be reached upon any ambiguous construction of the statute, but only upon its clear and unmistakable meaning. To hold the tug, I must construe the expression used as equivalent to saying that the tug shall be liable for any violation of the act by the scow, or by those on board of the scow, while in tow of the tugjwbich is certainly a very different and broader expression thali that used by the statute. Had this libel been brought against the SCOWb themselves,instead of the tug, it might have been urged with much more force'that the scows were" used or employed" in violating the act; because the mud was loaded upon the scows, and because it was directly by means of unfastening the bottom of the scows that the mud. was dropped intothe sea within the prohibited limits. But that was not the purpose for which the tug was used or employed, nor was it by any act or omission of hers. She was used and employed to take the scows to the proper dumping ground and was faithfully performing that duty and could' go in any other way. The illegal act was done independently of her, and outside of the scope of her "use and employment;" and I must, therefore, dismiss the libel.
v
.:;".'
Pl1'TMAl\Set
ale
MABsHAti;' .,I,.. f.
Under the general maritime law, nolien exists for supplies fUl;nished at tbe port of a state of which the ship.o\lVner ,is' a resident. and qtttel!e·. whether the rule is not the same where paI1i of the owners ,residein the state in which is situated such pon.. and others reside in foreign states, the facts beingkndwri to the party furnish. mg the vessel. ' . ,i ' , oontrol or others than the bwner whioh fact is or ought to have been known to a pan.y ,furnishing sUPPlies., a.nd the, p. s.o having the possess.ion. of the vessel resides at the pon,where the sUPl?lie& are furnished, tlJere the same sumption that oredit was not given' to the vessel as in cases where the owner resides at sllch PQrt.. : " '" .',
NON.RESIDIlNT.
2. SAME-CHARTERED VEssJilL,-ltEsWBNT, CHARTEBEB-;f'RBSUMPTION. . . If a'vessel, at the time llupplies her, is in tb.e\lse, possession, and
8.SAMB-BTATU'J:ORY LIBNS-:EJ;OW' ENli'OBOEDnt ADMIBALTY.'
,
It is because the contract for supplies is maritime that an admiralty court has and e.xereises itS ju.riSdi.ctlon in. enfoi-ci.ng the lien given bytM law of a state for . its security, alld, courts construe and enforce ,such lien in harmony with theirgeneralprincip,lesl and under the same limitations and qualifications as per· tain to'ml\ritlmeliensln'general: ' A ma-terial.man, seeking to enforce against a vessel a lien,for· slJPplies given hy the statute of a state, must establish by proof, as in the case of one furnishing sup. .. , : plies to a foreign vessel, that credit was given to the ship. '
"
SAME....STATUTOBY Llml'S......NIlOESSABYPBOOI'.
II. SAME-CHABTERED VESSEL-ENFOB<:lEMENTOI' LIEN-EQUI'1Y.
Go
The owner of a &team.sliip baving ohartered ·her to a oompany which was a , dent of the same town.. as libelant; chanerexpressly against the creation of any liens on the the oircumstances indicating that libelant supplied 00&· to the vessel knl)Wing that she was under charter. and ·on the credit of the charterers, who subsequently faHeli. heW, .that u<lli$n attached to the ves8el, either under the general maritime lIiw or the statute 1l,nv otMichigan. . ;",.'" T. PBAenoB-AMENDING LIBEL. HeW, that the libel in this case, which claimed alien under the general maritima law, might be amended 80 as to assen a lien under the law of the state. :
SAME-STATEM1ilNT Oll' CAll& .
In Admiralty. Suit to recover the price of coal furnished the steamship Samuel Marshall. BOWfin, Dougla88 &- Whiting, for libelants. Shaw &- Wright, for claimants. Before SEVERENS, District Judge. SEVERENS, District Judge. The libel was filed in this case for the purpose of enforcing a lien upon the steamer, the respondent in the case, for coal supplied by Pittmans & Dean for the steamer's use, in September and on the 1st day of October, 1890. The libelants were coal mer-