Bryant v. Rucker, Civ. No. 1012.

• Decision Date: 27 March 1953
• Docket Number: Civ. No. 1012.
• Citation: 111 F. Supp. 309
• Parties: BRYANT v. RUCKER, Commander, U. S. Coast Guard.
• Court: U.S. District Court — Southern District of Alabama

111 F. Supp. 309

BRYANT v. RUCKER, Commander, U. S. Coast Guard.

Civ. No. 1012.

United States District Court S. D. Alabama, S. D.

March 27, 1953.

John H. Tappan, of Pillans, Reams, Tappan, Wood & Roberts, Mobile, Ala., for plaintiff.

Percy C. Fountain, U. S. Atty., Mobile, Ala., for defendant.

THOMAS, District Judge.

The complaint as originally filed was an action for a declaratory judgment brought by three plaintiffs under the terms of Sections 2201 and 2202, Title 28 U.S.C.A. The complaint avers that the plaintiffs are the owners (or masters) of certain vessels which are motor boats as defined by the Motor Boat Act of 1940, sections 526-526t, Title 46 U.S.C.A. It also avers that the boats in question are engaged in the carrying of passengers for hire on fishing trips, and that the defendant, who is the Officer in Charge of Marine Inspection of the Mobile District of the United States Coast Guard, has enforced, and does enforce on the vessels of these plaintiffs Section 4426, a section of Title 52 of the Revised Statutes, section 404, Title 46 U.S.C.A., as amended, and the sections of Title 52 of the Revised Statutes there referred to, generally known as the Steamboat Inspection Laws. Plaintiffs ask of this Court to declare that the Motor Boat Act of 1940, supra, and the Steamboat Inspection Laws, supra, do not both have application to them and to their vessels.

The plaintiffs Graham were dismissed on motion, inasmuch as they were not the owners of any boats to which the above mentioned statutes are said to apply.

Findings of Fact.

Captain Earl Bryant owns and operates the Yacht "Sportsman". The "Sportsman" exceeds 15 gross tons and is used in the carrying of passengers for hire on fishing trips. She is less than 65' in overall length, excluding sheer. She is operated out of the port of Bayou La Batre in Mobile County, within the jurisdiction of the Southern District of Alabama, and within the Mobile District of the United States Coast Guard, of which this defendant is Officer in Charge.

Captain James B. Rucker (Commander at the time this suit was filed) enforces upon the Yacht "Sportsman" the terms and provisions of Section 404 of Title 46, supra, Section 4426 of Title 52 of the Revised Statutes, and therefore the terms and provisions of Title 52 of the Revised Statutes, i. e., the Steamboat Inspection Laws, and the rules and regulations issued thereunder, referred to in said Section 404. He has enforced and does enforce upon the said "Sportsman" this statute pursuant to the authority of his office as Officer in Charge of Marine Inspection of the Mobile District of the United States Coast Guard.

Captain Rucker's official acts are under the supervision and direction of The Commandant, United States Coast Guard, Washington, D. C.

The said Yacht "Sportsman", her tackle and fittings, is and always has been in conformity with the requirements of the Motor Boat Act of 1940. Plaintiff does not protest the application of the said Motor Boat Act of 1940 to the Yacht "Sportsman".

The Yacht "Sportsman" is held by the authorities of the United States Coast Guard to be subject to annual inspection, pursuant to the terms of the Steamboat Inspection Laws, supra. In the past, changes in the construction of the Yacht "Sportsman" have been required as a result of said inspections. These changes have entailed quite a bit of expense to plaintiff Bryant. After the "Sportsman" has met the requirements of inspection, a certificate of inspection is issued which is subject to revocation. A photostatic copy of a certificate of inspection for the "Sportsman" was introduced in evidence, this certificate being valid and outstanding at the time this suit was filed. The certificate is over the signature of the defendant. Among other things, it restricts the time of operation of the "Sportsman" to thirteen hours out of a twenty-four day and to an area of operation within fifteen miles of land between Pensacola, Florida, and New Orleans, Louisiana; it also restricts to seventeen the number of passengers which the "Sportsman" may carry.

It is against the application of Section 404 of Title 46, supra, and the inspection, changes in construction, and restriction on the manner of operation that this plaintiff protests.

The "Sportsman" is now and has been in compliance with the terms, provisions and requirements of both of the foregoing acts and has not violated the terms of the certificate of inspection issued by the defendant in his official capacity.

Opinion with Conclusions of Law

This court has jurisdiction to inquire into the merits of this action by virtue of Section 1337, Title 28 U.S.C.A.

It is my opinion that the Yacht "Sportsman" is not subject to Section 404, Title 46, and the Steamboat Inspection Laws there referred to. Said Section 404 includes the following terminology:

"All vessels of above fifteen gross tons carrying freight or passengers for hire, but not engaged in fishing as a regular business * * * shall be subject to all the provisions of this section * * *." (Emphasis mine.)

I do not find any interpretation of the phrase "but not engaged in fishing as a regular business"; but if the phrase is to have any meaning at all, it would seem to intend the exclusion of a vessel such as the "Sportsman" from the terms of the section.

It is also my thought that a Yacht such as the "Sportsman", which is subject to the requirements of the Motor Boat Act of 1940, was not intended by the Congress also to be subject to the terms and requirements of the Steamboat Inspection Laws which are said to apply by virtue of said Section 404 which was last amended in 1906. Section 404 is included among the sections of Chapter 14 of 46 U.S.C.A., which Chapter is styled: "Inspection of Steam Vessels". Section 361 of Title 46 is the first section of Chapter 14 and formerly read:

"What are steam vessels. Every vessel

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