THE CHASSAHOWITZKA, 253.

• Decision Date: 15 February 1933
• Docket Number: No. 253.,253.
• Citation: 3 F.Supp. 40
• Parties: THE CHASSAHOWITZKA.
• Court: U.S. District Court — Southern District of Texas

3 F.Supp. 40

THE CHASSAHOWITZKA.

No. 253.

District Court, S. D. Texas, Houston Division.

February 15, 1933.

H. M. Holden, U. S. Atty., and M. S. McCorquodale, Asst. U. S. Atty., both of Houston, Tex.

Edwin H. Grace, of New Orleans, La., and Weaver Moore, of Houston, Tex., for claimant.

KENNERLY, District Judge.

While the United States Coast Guard vessel CE115, in charge of George H. Gustafsen, officer in charge, was en route on June 23, 1932, from Morgan City, La., to Trinity Shoal Buoy in Texas, and about seventeen miles offshore, the officer in charge sighted two vessels, close together, about four or five miles away and in the direction (southwest) in which the CE115 was moving. At the time the two vessels were sighted, they were about seventeen miles off the Louisiana coast. Immediately thereafter, the vessels separated, one going to sea, and the other towards the shore. There is some suggestion, but no evidence, that the vessel which went to sea was a "rum runner" with intoxicating liquor aboard which it expected, or was making an effort, to deliver to the other vessel.

The CE115 pursued the vessel which started towards the shore, fired several blank, and a large number of real, shots at her, none of which struck her, and overhauled her within four leagues of the Louisiana shore, and boarded her. She was found to be the American gas screw vessel Chassahowitzka, in charge of Wilbur Fabre, the owner. She was boarded and searched by the officers of the CE115, but no intoxicating liquor, nor contraband merchandise, was found.

During the chase, in addition to the shots fired at the Chassahowitzka, the siren whistle of the CE115 was blown, and it is clear that the Chassahowitzka was trying to avoid being overhauled and searched. The statement of Fabre, at the time she was overhauled, makes this certain.

This is a libel by the United States government against the Chassahowitzka, the basis of which can best be set forth by quoting from the government's amended libel, filed September 9, 1932 (italics mine):

"V. That by virtue of the refusal of the said Wilbur Fabre to stop the said Chassahowitzka, No. 231459, and submit to search, inspection and examination of said Chassahowitzka, No. 231459, the said Wilbur Fabre incurred the following fines and penalties, to wit, a fine of Two Thousand Dollars ($2,000.00), as provided by 18 U. S. C. 121; a fine and penalty of One Thousand Dollars ($1,000.00), as provided by 19 U. S. C. 483; and a fine of Five Hundred Dollars ($500.00).

"VI. That said fines and penalties constitute a lien on the said Chassahowitzka, No. 231459.

"That all and singular the premises are true and within the admiralty and maritime jurisdiction of this Honorable Court."

The prayer is that upon a hearing, such vessel and her owner (Fabre) be decreed liable for such fines and penalties, and that the vessel, etc., be forfeited to the United States. And further that the vessel be sold to satisfy said lien, and for such other and further relief as to the court may seem just.

By its pleadings, the government limits its case to a recovery of the fines and penalties alleged to have been incurred by Fabre, under the three named sections of the Code, and to a fixing of such fines and penalties as a lien against the vessel. No other case is made by, and no other relief asked in, the pleadings.

Fabre has filed exceptions, raising the questions hereinafter discussed, which exceptions were presented, and decision thereon postponed until the case be heard on the merits. Without waiving his exceptions, Fabre answers, claiming the boat and denying the allegations of the government and that it is entitled to the relief sought.

This is a hearing on such exceptions, and in the event they be overruled, of the case on the merits.

1. Whether this court may, under the Barracouta (D. C.) 42 F. 160, 161, The C. G. White (C. C. A.) 64 F. 579, and The Paolina S. (C. C.) 11 F. 171, 173, cited by the government, determine, in this proceeding, whether Fabre, the owner, has, as claimed by the government, incurred a fine under section 483, title 19, USCA¹, need not be decided. It is at once apparent from an examination of the wording of such section that, under the facts which are alleged and which we have here, Fabre, the owner, has not incurred a fine of $1,000 or less, as provided in said section, because such section deals with vehicles, teams, trappings, etc., and not with vessels. That Fabre has not rendered himself liable to a fine under such section referring to vehicles, etc., by what he has done here respecting the vessel in question, is clear.

2. Section 121 of title 18 of the Code² is a part of the Criminal Code, and provides a maximum fine of $2,000 and/or a maximum imprisonment of one year, for a violation of its provisions. Libelant does not charge that the vessel libeled has violated this section, but charges that Fabre, the owner, has violated same, and incurred the fine therein fixed. But it is neither pleaded nor shown...