Canadian Pac. Ry. Co. v. United States

• Decision Date: 13 November 1934
• Docket Number: No. 7366.,7366.
• Citation: 73 F.2d 831
• Parties: CANADIAN PAC. RY. CO. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

73 F.2d 831 (1934)

CANADIAN PAC. RY. CO. v. UNITED STATES.

No. 7366.

Circuit Court of Appeals, Ninth Circuit.

November 13, 1934.

Bogle, Bogle & Gates, Norman M. Littell, and Edward G. Dobrin, all of Seattle, Wash., for appellant.

J. Charles Dennis, U. S. Atty., and John Ambler, Asst. U. S. Atty., both of Seattle, Wash.

Before WILBUR, SAWTELLE, and GARRECHT, Circuit Judges.

GARRECHT, Circuit Judge.

This action was brought by the United States against the Canadian Pacific Railway Company to recover $4,331.13 for "overtime" services rendered by inspectors and employees of the United States Immigration Service in connection with the examining and landing of passengers and crews from the company's vessels. Judgment was for the government for the full amount claimed less $86.33, paid before trial, as to which there was no dispute.

The statute (8 USCA §§ 109a and 109b) covering overtime compensation for employees and inspectors to be paid by the captain, master, owner's agent, etc., contains a proviso which excepts from payment of the overtime compensation, among others, international ferries when operating on regular schedules at designated ports of entry for passengers to the United States.

Appellant claims its boats are "international ferries" operating on regular schedule and, as such, exempted from payment of the overtime compensation.

From the findings of the District Court it appears that the appellant operates between Vancouver, B. C., Victoria, B. C., and Seattle, over waters classified by the United States Department of Commerce and by the Pilot Rules for Inland Waters as a portion of the high seas, the following vessels, termed by its advertising circulars "The Princess Liners":

                                       Gross    Passenger  No. of  No. of  Dining Rm
                                       Tonnage  Capacity   Beds    Strms.  Capacity
                  Princess Kathleen      5875     1500      290     136      166
                  Princess Marguerite    5875     1500      290     136      166
                  Princess Louise        4200     1200      261     132      129
                  Princess Charlotte     3924     1200      230     118      118
                  Princess Adelaide      3060     1200      206     103       84
                

Of those enumerated, the Princess Kathleen and the Princess Marguerite are apparently regularly assigned to the run, with the other boats filling in the schedule when needed. The above boats are the only vessels of appellant against which the overtime charges were levied. These vessels are not the conventional open-end ferry boats, but are designed with a bow and stern and have side ports for the accommodation of automobiles and freight. The run from Seattle to Vancouver is set out to be 145 miles; that from Vancouver to Victoria as 83 miles; and that from Victoria to Seattle as 81 miles. The night steamers travel direct, between Vancouver and Seattle, while the day steamers go via Victoria. It was testified by the government's witness that the Princess Marguerite, Princess Kathleen, and Princess Charlotte were daily entered and cleared by the Deputy Collector of Customs, as they came in and went out of the Port of Seattle. He also testified that the vessels were classified by the Steamboat Inspection Service as foreign passenger vessels.

The proviso (8 USCA § 109b) under which appellant claims exemption from payment for overtime immigration inspection charges reads as follows: "* * * Provided, That this section shall not apply to the inspection at designated ports of entry of passengers arriving by international ferries, bridges, or tunnels, or by aircraft, railroad trains, or vessels on the Great Lakes and connecting waterways, when operating on regular schedules. (Mar. 2, 1931, c. 368, § 2, 46 Stat. 1467.)"

Appellant admits that its activities are not covered by any ordinary definition of a "ferry," but insists that its operations come within the exemption intended by Congress to be extended to "international ferries." It argues that the decisions usually applied to ferries should not be invoked, since admittedly it does not come within such designation. But it is urged that Congress by the inclusion of the words "international ferries" intended to cover the activities of its vessels and to except it from the overtime charge. So far as we have been able to ascertain, there has been no judicial construction of the term "international ferry," and, in arriving at the legislative intent in the use of these words, assistance by way of analogy may be derived from definitions and decisions as to what ordinarily constitutes a "ferry." We must also have in mind the purpose of the enactment, the character of the service rendered, the length of the run, the place or locality served, and the manner in which the trips of the vessels in question are made.

Bouvier's Law Dictionary (1928) p. 408 defines "ferry" as follows:

"* * * Ferry properly means a place of transit across a river or arm of the sea; but in law it is treated as a franchise, and defined as the exclusive right to carry passengers across a river, or arm of the sea, from one vill to another, or to connect a continuous line of road leading from township or vill to another. * * *

"In England, ferries are established by royal grant or by prescription, which is an implied grant; in the United States, by legislative authority, exercised either directly or by a delegation of powers to courts, commissioners, or municipalities. * * *"

At common law a franchise was necessary to the creation of a ferry and, as appears from Bouvier, an integral part of the definition. "In England the power of granting ferry franchises emanates from the crown. In Canada the right is vested in the provinces, except as to ferries between a province and any British or foreign country or between two provinces, which are subjects of Dominion legislation. In the United States ferries are established by the legislative authority of the states, which is exercised either directly by a special act of the legislature, or through some inferior body to which power has been delegated under the provisions of a general law. * * * The power of establishing ferries is never exercised by the federal government, but lies within the scope of those undelegated powers which are reserved to the states respectively." 25 C. J. § 5, p. 1052. See Conway et al. v. Taylor's Executor, 1 Black (66 U. S.) 603, 17 L. Ed. 191.

"The states, and not the federal government, have the authority to establish ferries upon waters forming a boundary between the states, or between a state and a foreign country. The franchise of one state can confer no rights as to landing upon or ferrying from the other state, but is valid as far as the jurisdiction of the state which grants the franchise extends, without any concurrent action on the part of the other state. The franchise of either state may be made exclusive as to ferrying from its own shore, but it cannot be made to exclude ferries operating under franchises granted by the state on the opposite shore. The jurisdiction of a state over a ferry is determined by its point of departure, and the fact that the landing place is in another jurisdiction does not take it out of the jurisdiction of the authority which granted the franchise. * * *" 25 C. J. § 9, p. 1055.

Appellant concedes the common-law definition of "ferry" as a franchise right, but cites City of Sault Ste. Marie v. International Transit Co., 234 U. S. 333, 34 S. Ct. 826, 828, 58 L. Ed. 1337, 52 L. R. A. (N. S.) 574, as authority to the effect that a state has no power to issue a franchise for international ferries, and that therefore a franchise which was an essential element in the establishment of a ferry at common law is not required in the operation of an international ferry. The case cited is not authority for the proposition advanced. The transit company held a license from the Dominion government to operate a ferry between Sault Ste. Marie, Ontario, and Sault Ste. Marie, Mich. The point in controversy was whether the city of Michigan could require the company to take out in addition to its franchise a local license for the privilege of carrying on interstate or foreign commerce. The court said:

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