The Scotia
| Decision Date | 03 July 1889 |
| Parties | THE SCOTIA. [1] v. THE SCOTIA. UNITED STATES |
| Court | U.S. District Court — Eastern District of New York |
M. D Wilber, U.S. Atty., for libelant.
R. D Benedict, for the steam-ship.
This case comes before the court upon exceptions to the libel. The libel is plainly defective in that it fails to disclose what statute of the United States is relied upon. This defect may be amended.
Treating the libel as if amended by setting up the first and thirteenth sections of the passenger act of August 2, 1882 as the provisions of statute relied upon, there remain the third and fourth exceptions to the libel taken by the master. These exceptions present the question whether the provisions of the first section of the act of 1882 can be enforced against the master of a vessel by a civil proceeding. The present is a civil proceeding in admiralty, and must, of course, be dismissed as to the master if by the statute the acts charged against the master constitute a criminal offense under the statute. On this point it is sufficient to refer to the words of the statute in question, where it is declared that, if the master of the vessel commits the act here charged, 'he shall be guilty of a misdemeanor, and fined fifty dollars for each passenger in excess, and may also be imprisoned not exceeding six months. ' This language is too precise to permit it to be contended that the statute can be enforced against the master by a civil proceeding like the present. The exceptions of the master to the libel must therefore be allowed, and the libel must therefore be allowed, and the libel dismissed as to him.
It remains to be determined, upon the exceptions taken by the owners, whether the libel can be maintained as against the vessel. The libel being taken to aver a carriage by the steam-ship Scotia of 29 passengers in excess of the number allowed to be carried by the first section of the act of 1882, and also to aver that by virtue of the thirteenth section of the act a lien attached to the ship for an amount equal to $50 for each of said passengers, to-wit, the sum of $1,450, the objection is raised by the claimant's exceptions that the libel is fatally defective, because it omits to set forth that the master of the steam-ship has been tried and convicted for the carrying of such passengers, and in such criminal proceeding fined in the sum of $1,450. While it must be admitted that the language employed...
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United States v. James W. Elwell & Co.
...Fed. Cas. No. 16,973; McAfee v. The Creole, Fed. Cas. No. 8,655; United States v. The Queen, 4 Ben. 237, Fed. Cas. No. 16,107. The Scotia (D.C.) 39 F. 429, was slightly different case, but indicates the same rule. In The Strathairly, 124 U.S. 558, 580, 8 Sup.Ct. 609, 31 L.Ed. 580, while the......