66 F. 63 (E.D.La. 1895), Cuban Steamship Co. v. Fitzpatrick

Citation:66 F. 63
Party Name:CUBAN STEAMSHIP CO., Limited, v. FITZPATRICK, Mayor, et al.
Case Date:February 16, 1895
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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66 F. 63 (E.D.La. 1895)



FITZPATRICK, Mayor, et al.

United States Circuit Court, E.D. Louisiana.

February 16, 1895

Farra, Jones & Kruttschnitt, for plaintiff.

E. A. O'Sullivan, for defendants.

PARLANGE, District Judge.

Complainant, an alien corporation, domiciled in London, England, avers that it is the owner of the steamship Cayo Mono, of about 1,750 tons burden, duly registered as a British ship; and said ship is now lying in the port of New Orleans, where she has come to take on a general cargo to be transported from the United States to London and Antwerp; that she is engaged in commerce between Great Britain and the United States; that, while her officers and crew were lawfully and properly engaged in loading said ship with cargo, under the law of nations and the general rules of maritime law, the captain of the vessel was approached by a police officer belonging to the police force of the city of New Orleans, acting under instructions from the mayor of the city, and from the chief of police of the city; and that said police officer ordered said captain to desist from stowing or loading

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said ship, under threat of arrest and punishment. Complainant avers that it is informed that the police officer, mayor, and chief of police claim to be acting under article 255 of the constitution of the state of Louisiana adopted in the year 1879, and also under Act No. 76 of the legislature of the state of Louisiana, approved April 7, 1880, both of which article of the state constitution, and act of the legislature complainant avers to be null and void, as being a regulation of commerce with foreign nations, and therefore in contravention of paragraph 3 of section 8 of article 1 of the constitution of the United States. Complainant avers that in the treaties between the United States and Great Britain, no restrictive provisions of any nature have been imposed upon commerce between the ports of the two countries, or upon the ships plying between said ports; that a strike is now going on in the city of New Orleans by the screwmen and longshoremen who are generally engaged in the business of loading ships, and that such screwmen and longshoremen refuse to work themselves, and also refuse to permit any one else to work; that said ship is under engagements, limited as to time, and that, if complainant is not allowed to load its vessel with its own officers and crew, it will suffer irreparable damage and injury, as there is no person from whom it could recover the enormous damage that it would suffer by forcing its vessel to remain here day after day, unable to load; that said mayor and chief of police intend to harass complainant's officers and crew by daily and hourly arrests, and by numerous prosecutions, under the pretense of enforcing said void and unconstitutional legislation, and will continue to so harass said officers and crew, so as to make it impossible to load said vessel. Complainant prays for an injunction to issue to said mayor, chief of police, and all their subordinates, restraining them from interfering with the loading of said ship, or any other ship belonging to complainant, under color of said legislation averred to be null and unconstitutional.

To the rule nisi, the defendants answered that, the injunction could not issue, because of article 255 of the constitution of Louisiana, and Act No. 76 of the state legislature of 1880; that said legislation does not attempt to regulate commerce, or to interfere therein, but was adopted and passed for the purpose of regulating the internal affairs of the state of Louisiana, and protecting the citizens within its territory; and that the said legislation is not in contravention of the constitution of the United States, because it is a police regulation for the maintenance of the well-being of the citizens of the state.

Article 255 of the constitution of Louisiana is not self-operating. It reads as follows:

'Art. 255. The general assembly shall pass necessary laws to prevent sailors or others of the crew of foreign vessels from working on the wharves and levees of the city of New Orleans, provided, there is no treaty between the United States and foreign powers to the contrary.'

Act No. 76 of the state...

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