In re Berue, Civ. No. 777.

• Decision Date: 09 February 1944
• Docket Number: Civ. No. 777.
• Citation: 54 F. Supp. 252
• Parties: In re BERUE.
• Court: U.S. District Court — Southern District of Ohio

54 F. Supp. 252

In re BERUE.

Civ. No. 777.

District Court, S. D. Ohio, E. D.

February 9, 1944.

William L. Standard, of New York City, and Edward Lamb, of Toledo, Ohio, for petitioner.

Sheldon E. Bernstein, Department of Justice, and Archibald King, Colonel J. A. G. D., United States Army, both of Washington, D. C., and R. J. O'Donnell, Asst. U. S. Atty., of Columbus, Ohio (Tom C. Clark, Asst. Atty. Gen., and Myron C. Cramer, Major General, United States Army, The Judge Advocate General, of Washington, D. C., on the brief), for respondent.

UNDERWOOD, District Judge.

This cause comes into this Court for consideration upon a petition for a writ of habeas corpus filed by Frances Berue, wife of Jacob M. Berue. For convenience, Jacob M. Berue, the prisoner, will be referred to herein as the petitioner.

By agreement of counsel, the evidence before the Court has been limited to certain stipulated facts and certain documentary exhibits. The case has been submitted upon this evidence and the briefs of counsel.

The facts of the case as shown by the stipulation and the exhibits may be stated as follows: Jacob M. Berue was a merchant seaman employed on a merchant vessel, the S. S. Anthony Wayne, having been hired at a union hall pursuant to a union agreement. His status being that of civilian deferred from military service by reason of his occupation as a seaman.

The Anthony Wayne was the property of the United States, being operated by the Matson Navigation Company, a private corporation, under the terms of a general agency agreement with the War Shipping Administration. Prior to the time in question, the vessel had been assigned by the War Shipping Administration to the Army by a letter of allocation, although this allocation was unknown to the petitioner.

On or about November 29, 1942, the petitioner boarded the vessel then lying at Pier 2 of the New York Port of Embarkation which is sometimes referred to as the "Army Base", located at Brooklyn, New York; from that time forward, he served as messman until the commission of the acts for which he was tried by court-martial. While the vessel was lying at Pier 2 subsequent to November 29, 1942, and while the petitioner was on board, the Anthony Wayne took on army cargo which constituted its entire cargo.

During the voyage in question, the vessel carried one officer of the United States Army, a Lieutenant designated as "Cargo Security Officer", whose duty was to prevent larceny of, or damage to the cargo.

On or about December 8, 1943, sailing orders "by command" of a Major General, and signed by a Colonel, Transportation Corps, were delivered to the Master of the Anthony Wayne. Pursuant thereto, the vessel left the pier at the army base, December 10, 1942, and proceeded to a point in New York Harbor, anchoring off Stapelton, Staten Island, New York. On December 13, 1942, she sailed with a convoy bound for Casablanca, Morocco.

The convoy of which the vessel was a part, consisted of some thirty vessels, all carrying cargo of the same type. Each, with one exception, carried a Cargo Security Officer. Every vessel in the convoy was operated under sailing orders from the Commanding General of the New York Port of Embarkation and all of them were bound for Casablanca.

On December 15, 1942, while the convoy was yet on the high seas, an incident occurred between the petitioner and certain officers and members of the crew. As a result, the Master put the petitioner in chains for a few hours and demoted him from messman to dishwasher.

The convoy arrived at Casablanca, December 30, 1942, and the petitioner was confined in the port stockade. He was charged with violating the 96th Article of War, 10 U.S.C.A. § 1568; a general court-martial was convened and he was brought to trial. His counsel objected to the jurisdiction of the Court; the objection was overruled and he was convicted and sentenced. The sentence was thereafter reduced and approved as reduced. The record was transmitted to the Judge Advocate General of the United States Army and proceedings were had thereon as shown by the record introduced in this proceeding. Pursuant to said sentence, the petitioner was confined in the Federal Reformatory, Chillicothe, Ohio. This action is brought to obtain his release therefrom.

As a matter of agreement between counsel, and perhaps as a matter of law also, there is but one issue in the case before this Court, and that is whether or not the military court convened at Casablanca had jurisdiction. If jurisdiction existed, this Court can inquire no further and must deny the writ; on the other hand, if it did not exist, the sentence imposed was void, and it would be the duty of this Court to grant the writ and discharge the petitioner.

Courts martial are courts of limited jurisdiction and if jurisdiction existed in this case, it must be founded upon the Second Article of War, subdivision (d), 10 U.S.C.A. § 1473(d), defining certain classes of persons subject to the Articles and reading as follows: "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 these articles."

In this particular case, we are concerned with only the latter part of the Article. This Court takes judicial notice of the fact that the United States of America is now at war with the Axis Powers. It is conceded that if the petitioner was subject to the jurisdiction of the court-martial, it was because he was a person "accompanying or serving with the Armies of the United States in the field * * * without the territorial jurisdiction of the United States, though not otherwise subject to these articles."

It has been vigorously argued on behalf of the petitioner that he was a merchant seaman and was in no sense a member of the armed forces of the United States. This may be conceded as an established fact, but if the phrase "though not otherwise subject to these articles", used in the Second Article, has any meaning at all, it must mean to include those who are not members of the Armies of the United States. Both the words themselves and their context so indicate. If the petitioner were a member of the Army, he would be "otherwise subject to these articles."

Admittedly, the high seas constitute an international highway and are in nowise "within * * * the territorial jurisdiction of the United States". It is not, however, necessary to discuss this...