The 6 S.

• Decision Date: 28 May 1917
• Citation: 247 F. 348
• Parties: THE 6 S.
• Court: U.S. District Court — Southern District of New York

247 F. 348

THE 6 S.

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

May 28, 1917

John Hunter, Jr., of New York City, for the United States.

A. Leo Everett, of New York City, for claimant.

LEARNED HAND, District Judge (after stating the facts as above).

The jurisdiction of this court depends upon the following language of section 4 of the act of June 29, 1888 (Comp. St 1916, Sec. 9937):

'Any boat or vessel used or employed in violating any provision of this act, shall be liable to the pecuniary penalties imposed thereby, and may be proceeded against, summarily by way of libel in any district court.'

Normally a civil suit for penalties is in the form of an action for debt, the qui tam action at common law; it lies only when the penalty is fixed in amount, except for a certain latitude for easy calculation. Stockwell v. U.S., 13 Wall. 531 542, 20 L.Ed. 491; Carrol v. Green, 92 U.S. 509 513, 23 L.Ed. 738; Hepner v. U.S., 213 U.S. 103, 108, 29 Sup.Ct. 474, 53 L.Ed. 720, 27 L.R.A. (N.S.) 739, 16 Ann.Cas.

960. That a civil proceeding will lie for the collection of an unliquidated penalty, if the purpose be plain, is of course true enough. United .states v. Atlantic Fruit Co., 206 F. 440, 124 C.C.A. 322. In that case the decision seems to have turned upon the fact that any criminal prosecution under the statute was at least doubtful; besides, the suit was in personam, and it does not follow that a libel in rem would have lain, before the fine had been assessed.

In The Strathairly, 124 U.S. 558, 8 Sup.Ct. 609, 31 L.Ed. 580, it was pretty clearly indicated, however, that the lien was a security only for the fine, and that no libel would lie until it had been assessed. On page 572 of 124 U.S. (8 Sup.Ct. 609, 31 L.Ed. 580) the court spoke of an unliquidated penalty as though it must first be directly liquidated, and the final disposition of the cause on page 580 of 124 U.S. (8 Sup.Ct. 609, 31 L.Ed. 580), though perhaps not actually involving a decision, clearly shows that the court considered the criminal prosecution as a condition precedent. Were the section here in question drawn like Revised Statutes, Sec. 4270, I should therefore feel bound to hold under that case that a criminal prosecution was such condition. It is a doubtful question, but I incline to think that the language used in section 4 of the act of June 29, 1888, was intended to be more drastic. That section does not in terms impose only a lien, though of course a lien arises; it imposes the penalties-- i.e., the fines-- upon the boat de novo, a change of expression, perhaps, not without significance.

Moreover it provides that the boat 'may be proceeded against summarily.' I cannot quite see what the meaning of the word, 'summarily' can be, if it does not include a libel without the condition precedent of a criminal prosecution. The statute is not, it is true, drawn with scientific paucity; but...