Cuban Steamship Co. v. Fitzpatrick

• Decision Date: 16 February 1895
• Citation: 66 F. 63
• Parties: CUBAN STEAMSHIP CO., Limited, v. FITZPATRICK, Mayor, et al.
• Court: U.S. District Court — Eastern District of Louisiana

66 F. 63

CUBAN STEAMSHIP CO., Limited, v. 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 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 legislature of 1880 was apparently intended to carry out the constitutional article. Section 1 of said act provides: 'That no sailor, or portion of the crew of any foreign sea-going vessel, shall engage in working on the wharves or levee of the city of New Orleans beyond the end of the vessel's tackle.'

Section 2 provides the punishment of imprisonment for the violation of section 1.

Section 3 reads:

'That the provisions of this act shall not apply to the officers, sailors or others of the crew of foreign vessels hailing from countries having any treaty or treaties with the United States to the contrary, nor to any contract, or contracts of which the United States courts have jurisdiction.'

The mere reading of section 3 of Act No. 76 of 1880, immediately prompts the inquiry whether, regardless of any question of conflict with the constitution of the United States, the state statute affords the police authorities any warrant to prevent the crews of foreign vessels from loading and unloading their own ships in the port of New Orleans. Does the state statute, which the defendants plead as their warrant, command or authorize them to make the threatened arrests? In ascertaining the purpose and scope of Act No. 76 of 1880, we are materially assisted by the language of Act No. 73 of the legislature of 1874, entitled 'An act to prohibit the unlawful employment of sailors at work upon the levees or banks of the rivers in this state, and to punish violations of this act. ' The act of 1874 does not confine its operation to the wharves and levees of New Orleans, and is directed against officers or stevedores who employ sailors 'at work on the levees of the state of Louisiana not strictly belonging to and included in regular sailor's duty, as fined and prescribed by the maritime law governing the employment and duty of sailors. ' It is perfectly plain that the work which this act intended to prohibit sailors from performing, was work other than loading and unloading their own vessels, because it specifically exempts from its operating work 'included in regular sailor's duty, as defined and prescribed by the maritime law. ' Of course, whether loading and unloading their own ships in a foreign port, are among the regular duties of sailors, is not a debatable question. What the other work intended to be prohibited was, it is idle to inquire.

Act No. 76 of 1880 is exactly on the same lines as Act No. 73 of 1874, so far as concerns the work which it was intended to prohibit. Section 3 of said act, providing that the statute should not apply to 'any contract or contracts of which the United States courts have jurisdiction,' was an amendment to the original bill by the senate judiciary committee. The amendment was meant to say, and does say, precisely what the language of the act of 1874 expressed when it excepted from its operation work 'strictly belonging to and included in regular sailor's duty, as defined by the maritime law governing the employment and duty of sailors. ' In the matter at bar, an express contract requiring complainant's sailors to work cargo when required, has been proven. An extract from the shipping articles is on file. But, even if there were no express contract, loading and unloading cargo in a foreign port are implied conditions of every sailor's employment. Fland. Mar. Law (Ed. 1852) p. 411, Sec. 502; Judge Peters, in the case of The Happy Return, 1 Pet.Adm. 254, Fed. Cas. No. 13,697; Maude & P. Merch. Shipp. pp. 177, 178; Justice Story, in Cloutman v. Tunison, 1 Sumn. 373, Fed.Cas.No. 2,907. It is perfectly apparent that Act No. 76 of 1880 did not attempt to prevent sailors of foreign vessels from loading and unloading their ships, but, on the contrary, specially excepts them. The act, regardless of any question of conflict with the constitution of the United States, affords the defendants no authority or warrant whatever to consummate the threatened arrest of complainant's sailors.

If this view is erroneous, and if the state statute does not except sailors of foreign vessels when loading and unloading their own vessels, then the question arises whether the statute could stand as against the provisions of the consitution of the United States, appealed to by complainant. The power to regulate commerce with foreign nations being exclusively vested in congress, can a state enact a law discriminating as between foreign and domestic vessels, and declaring that the crews of foreign vessels loading or unloading their own vessels in a port of the state shall be imprisoned? Is it true, that, while a state cannot prevent a foreign vessel from entering its ports, it has the power to imprison its officers and crew if the ship unloads or reloads a single parcel of cargo? If this be so, the right to enter an American port is an utterly barren one, for the whole object of the enterprise is not to enter the port with cargo, but to land the...