Ex parte Gerlach

• Decision Date: 10 December 1917
• Citation: 247 F. 616
• Parties: Ex parte GERLACH.
• Court: U.S. District Court — Southern District of New York

247 F. 616

Ex parte GERLACH.

United States District Court, S.D. New York.

December 10, 1917

Silas B. Axtell, of New York City, for petitioner.

Francis G. Caffey, U.S. Atty., and Ben A. Matthews, Asst. U.S. Atty both of New York City, for respondent.

AUGUSTUS N. HAND, District Judge.

Charles E. Gerlach, an employe of the United States Shipping Board went to Europe as mate on the steamship McClellan, a vessel apparently in use as a military transport, though this fact was not definitely proved. He was there discharged, and sent back on the El Occidente, an army transport, to New York. He volunteered to stand watch, and for several days did this but finally refused to continue. For this disobedience to the order of an army officer, who was in command of the transport, he was tried by a court-martial and sentenced to five years' imprisonment.

The second Article of War (R.S. Sec. 1342, as amended by Act Aug 29, 1916, c. 418, 39 Stat. 651 (Comp. St. 1916, Sec. 2308a)) reads as follows:

'The following persons are subject to the Articles of War: * * *

'(d) All retainers to the camp and all persons accompanying or serving with the armies of the United States without the territorial jurisdiction of the United States, and in time of war all such retainers and persons accompanying or serving with the armies of the United States in the field, both within and without the territorial jurisdiction of the United States, though not otherwise subject to' the Articles of War.

I think Gerlach was a person accompanying the army of the United States, and also voluntarily serving with the armies of the United States at the time he disobeyed the order. I further hold that he was 'in the field' and without the territorial jurisdiction of the United States within the meaning of the article. The words 'in the field' do not refer to land only, but to any place, whether on land or water, apart from permanent cantonments or fortifications where military operations are being conducted. In this case he was on an army transport, and peril from submarines existed when he refused to stand watch. The captain in charge of the vessel had, in my opinion, the right to call upon all persons on board to protect the transport in any way that seemed best in view of the danger. The section of the Articles of War subjecting persons accompanying armies to military authority not only enables military officers to preserve order on...