The Strathairly United States v. the Strathairly

Citation124 U.S. 558,31 L.Ed. 580,8 S.Ct. 609
PartiesTHE STRATHAIRLY. UNITED STATES v. THE STRATHAIRLY
Decision Date13 February 1888
CourtUnited States Supreme Court

This is a libel of information in rem, filed in the district court of the United States for the district of California, July 1, 1882, on behalf of the United States against the British steamer Strathairly. The claimant having interposed peremptory exceptions, a decree in the district court was entered August 30, 1882, sustaining the exceptions and dismissing the libel. From this decree the libelant appealed to the circuit court of the United States for the district of California, in which October 3, 1882, a decree was entered sustaining the exceptions and dismissing the libel. From that decree the libelant has appealed.

The libel contains three counts. The first is for the recovery of $16,300 for an alleged violation of the provisions of sections 4252 and 4253 of the Revised Statutes. In this count it is alleged that the steam-ship Strathairly was a British vessel owned by citizens of Great Britain, and propelled in whole or in part by steam; that W. B. Fenwick, the master thereof, brought on said steamer, from Hong Kong, China, 326 steerage passengers in excess of the number fixed by law in proportion to the space or tonnage of said vessel; that by reason thereof, Fenwick, the master of said ship, became liable to a fine of $50 for each of said 326 passengers, amounting to $16,300, which amount, it is alleged, is made a lien by the laws of the United States on said vessel, her tackle, furniture, engines, and apparel. It is further alleged in the same count, that prior to the promoting of said libel a criminal information was filed in the district court of the United States for the district of California, charging Fenwick, the master, with the offense of unlawfully bringing from said port of Hong Kong into the port of San Francisco the said 326 passengers in excess of the number that he could lawfully bring on said vessel; that said Fen wick was duly arraigned on said information, and pleaded guilty to the offense of bringing on said vessel 223 steerage passengers in excess of the number than he could lawfully bring on the same; that thereupon said Fenwick was duly sentenced to pay a fine of $50 for each of said 223 passengers, amounting in all to the sum of $11,150. To this count, McIntyre, the claimant of the ship, filed a peremptory exception, on the ground that the facts stated were not sufficient to constitute, create, or give rise to a lien on said vessel under any law or statute of the United States. The second count of the libel is for the recovery of the sum of $5,280 for an alleged violation of the provisions of section 4255 of the Revised Statutes. In this count it is alleged that on April 17, 1882, at Hong Kong, China, there were taken on board of said steam-ship Strathairly 1,056 steerage passengers for transportation to the port of San Francisco, California; that said 1,056 steerage passengers were by said vessel transported to and landed at said port of San Francisco; that said vessel, at the time said steerage passengers were so transported From Hong Kong to San Francisco, did not have the number of berths required by law for the accommodation of said passengers, nor were said berths constructed in the manner required by law, by reason whereof the master of said ship, and the owners thereof, became liable to a penalty of $5 for each of said 1,056 passengers, amounting in all to $5,280, no part of which had been paid, and that the same constitutes a lien upon said vessel. To this count the claimant also excepted—First, because the facts stated therein were not sufficient to constitute, create, or give rise to a lien on said vessel under any law or statute of the United States; second, because the ship Strathairly, being at the time a vessel propelled in whole or in part by steam, neither the master nor owners thereof are subject or liable to the penalty provided for by section 4255 of the Revised Statutes, and that no lien does or can attach on said vessel under section 4270 of the Revised Statutes. The third count of the libel is for the recovery of the sum of $1,000 for the alleged violation of the provisions of section 4266 of the Revised Statutes, taken in connection with section 2774. In this count it is alleged that W. B. Fenwick, the master of said steam-ship, on April 17, 1882, took on board of said ship, at Hong Kong, China, 1,056 steerage passengers, and transported them in said ship to the port of San Francisco; that, on arriving at said last-named port, the said master neglected and refused to deliver to the collector of customs at said port of San Francisco a list of all the passengers taken on board of said vessel and brought in her to the port of San Francisco; also that said Fenwick knowingly and willfully made out and delivered to said collector of customs a false list* of said passengers, in which he reported that the whole number brought was 829, and no more, instead of 1,056, the number alleged to have been actually brought and landed, by reason of which said Fenwick became liable to a fine of $1,000, whick, it is alleged, is also a lien upon said vessel. To this count the claimant excepted, on the ground that the facts stated were not sufficient to constitute, create, or give rise to a lien on said vessel under any law or statute of the United States.

Asst. Atty. Gen. Maury, for appellant.

Milton Andros and Wm. W. Morrow, for appellee.

[Argument of Counsel from pages 561-567 intentionally omitted] Mr. Justice MATTHEWS, after stating the facts as above, delivered the opinion of the court.

The first question for consideration is whether the fine imposed upon the master of a vessel by section 4258 of the Revised Statutes, for the violation of that and the preceding section, is a lien upon the vessel itself, to be recovered by a proce ding in rem. Section 4252 of the Revised Statutes provides that 'no master of any vessel, owned in whole or in part by a citizen of the United States, or by a citizen of any foreign country, shall take on board such vessel, at any foreign port or place other than foreign contiguous territory of the United States, passengers contrary to the provisions of this section, with intent to bring such passengers to the United States, and leave such port or place and bring such passengers, or any number thereof, within the jurisdiction of the United States.' It then prescribes the number of passengers which may be lawfully carried by reference to the tonnage and space of the vessel. Section 4253 declares that whenever the master of any such vessel shall carry and bring within the jurisdiction of the United States any greater number of passengers than is allowed by section 4252, he shall be deemed guilty of a misdemeanor, and shall, for each passenger taken on board beyond such limit, be fined $50, and may also be imprisoned for not exceeding six months. Section 4270 is as follows: 'Sec. 4270. The amount of the several penalties imposed by the foregoing provisions, regulating the carriage of passengers in merchant vessels, shall be liens on the vessel violating those provisions, and such vessel shall be libeled therefor in any circuit or district court of the United States where such vessel shall arrive.'

It is argued that the penalties referred to in section 4270 do not include the fine imposed by section 4253. There are other provisions following section 4252 and prior to section 4270, it is said, imposing penalties which are embraced by section 4270, exclusive of all others. Of these, the first is mentioned in section 4255, which particularly prescribes the number and construction of the berths for the use of passengers on any such vessel, and provides that for any violation of the section 'the master of the vessel, and the owners thereof, shall severally be liable to a penalty of $5 for each passenger on board of such vessel on such voyage, to be recovered by the United States in any port where such vessel may arrive or depart.' This, it is argued, is a penalty eo nomine, for which not only the master, but the owners of the vessel are liable, and to be recovered, not in a criminal prosecution, but in a civil action, and is thus distinguished from the case of the fine imposed by section 4253. Section 4259 also imposes a penalty of $200 upon the master and owner of any such vessel which shall not be provided with the house or houses over the passage ways, or with ventilators, or with cambooses or cooking ranges, with the houses over them, required by previous sections, for each and every violation of or neglect to conform to each of these requirements, to be recovered by suit in any circuit or district court of the United States within the jurisdiction of which such vessel may arrive, or from which she may be about to depart, or at any place within the jurisdiction of such courts, wherever the owner or master of such vessel may be found. So section 4263 provides for maintaining discipline and habits of cleanliness among the passengers for the preservation and promotion of their health by the master, who is required to cause the apartments occupied by such passengers to be kept at all times in a clean, healthy state; and the owners of every such vessel are required to construct the decks and all parts of the apartments so that they can be thoroughly cleansed, and to provide a safe and convenient privy or water-closet for the exclusive use of every 100 of such passengers. The master is also required to disinfect the quarters for the passengers. The section then further provides: 'And for each neglect or violation of any of the provisions of this section the master and owner of any such vessel shall be severally liable to the United States in a penalty of fifty dollars, to be recovered in any circuit or district court within the jurisdiction of which such vessel may arrive, or from which she is about to depart, or at any place where the...

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11 cases
  • Sawyer v. Barbour
    • United States
    • California Court of Appeals Court of Appeals
    • July 6, 1956
    ...the term 'fine' and the term 'penalty' synonymously. Weideman v. State, 55 Minn. 183, 56 N.W. 688, 689; United States v. The Strathairly, 124 U.S. 558, 8 S.Ct. 609, 31 L.Ed. 580, 583; United States v. Nash, D.C., 111 F. 525, 527-528; United States v. Birmingham Trust & Savings Co., 5 Cir., ......
  • The 6 S.
    • United States
    • U.S. District Court — Southern District of New York
    • May 28, 1917
    ...247 F. 348 THE 6 S. United States District Court, S.D. New York.May 28, 1917 [247 F. 349] ... In The ... Strathairly, 124 U.S. 558, 8 Sup.Ct. 609, 31 L.Ed. 580, it ... was pretty clearly ... ...
  • United States v. James W. Elwell & Co.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • April 10, 1918
    ... ... Fed. Cas. No. 16,107. The Scotia (D.C.) 39 F. 429, was a ... 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 point was not raised, the decision, so far as it ... concerned Revised Statutes, ... ...
  • United States v. Cobb
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • March 31, 1906
    ... ... owner, or master be first prosecuted, and that it has ... resulted in the imposition of a fine by the sentence of the ... court. The Strathairly, 124 U.S. 558-580, 8 Sup.Ct. 609, 31 ... L.Ed. 580. In the present case there is no particular steamer ... of the Hamburg-American Line named, so ... ...
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