United States v. Cobb

• Decision Date: 31 March 1906
• Parties: UNITED STATES v. COBB.
• Court: U.S. Court of Appeals — Fourth Circuit

163 F. 791

UNITED STATES v. COBB.

United States District Court, D. Maryland.

March 31, 1906

John C Rose and Morris A. Soper, for the United States.

Jno. J Donaldson and Wheeler, Cortis & Haight, for defendant.

MORRIS District Judge.

The indictment sets forth that a certain John L. Alcock was engaged in the business of exporting lumber from the port of Baltimore to the port of Hamburg, Germany, and the defendant Cobb was the agent of a line of steamships called the 'Hamburg-American Line,' engaged in transporting merchandise between ports of the United States and said port of Hamburg, Germany, and that on April 17, 1905, at Baltimore, Cobb, as agent of said line of vessels, issued to said Alcock a bill of lading for 31 walnut logs to be carried from Baltimore to Hamburg, and did insert in said bill of lading certain clauses and agreements whereby the said vessels and the owners thereof were relieved, and were intended to be relieved, from liability for loss and damage from negligence, fault, failure in proper loading, stowage custody, and proper delivery of the said 31 walnut logs committed to their charge, which said clauses were 'Contents and Condition of Contents of Packages Unknown,' 'Shipper's Load and Count,' that 'the carrier shall not be liable for loss or damage occasioned by breakage'; 'that the carrier shall not be concluded as to the correctness herein of quality, quantity and contents'; 'that the carrier shall not be liable for risk of craft, hulk or transshipment'; that said Alcock did then and there demand of said Cobb as agent as aforesaid a bill of lading omitting the said clauses, and stating therein the marks necessary for the identification and the quantity of said merchandise, and said Cobb refused to issue such a bill of lading contrary to the statute.

By subsequent counts based upon each of the before-mentioned clauses the insertion of each of the clauses by Cobb contrary to the demand of Alcock is charged as a distinct offense. In the seventh and last count of the indictment the bill of lading is set out verbatim as it was actually issued, with a like charge as in the first count.

The demurrer assigns as causes for demurrer:

'(1) That the indictment and each and every count thereof is insufficient in law.

'(2) That each and every count fails to allege facts constituting an offense against the laws of the United States.

'(3) That the insertion in the bill of lading of the clauses mentioned did not constitute an offense against the United States.

'(4) That each and every count fails to allege that the defendant was manager, agent, master, or owner of any vessel transporting merchandise or property from or between ports of the United States and foreign ports.

'(5) That it appears by the seventh count that the bill of lading alleged to have been issued by the defendant was not issued by him, but was signed by one 'C.W.S.', and that it is not alleged that said 'C.W.S.' was thereto duly authorized by the defendant or by the Hamburg-American Line.

'(6) That it appears from the bill of lading that it did, in fact, state the marks necessary for identification and quantity of said merchandise.

'(7) That each and every count is in other respects informal, insufficient, and defective.'

The indictment must rest upon the first and the fourth and fifth sections of the Harter act. Act Feb. 13, 1893, c. 105, 27 Stat. 445, 446 (U.S. Comp. St. 1901, p. 2947). The first section declares, in substance, that it shall not be lawful for the manager, agent, master, or owner of any vessel transporting merchandise or property from or between ports of the United States and foreign ports to insert in any bill of lading any clause whereby it, he, or they shall be released from liability for loss or damage arising from negligence, fault, or failure in proper loading, stowage, custody, care, or proper delivery of any and all lawful merchandise or property committed to its or their charge. Any and all words or clauses of such import inserted in bills of lading or shipping receipts shall be null and void and of no effect. Section 4 enacts that it shall be the duty of the owner or owners, masters, or agent of any vessel transporting merchandise or property from or between ports of the United States and foreign ports to issue to shippers of any lawful merchandise a bill of lading stating the marks necessary for identification, number of packages, stating whether it be carrier's or shipper's weight, and apparent order or condition of such merchandise or property delivered to and received by the owner, master, or agent of the vessel for transportation, and such document shall be prima facie evidence of the receipt of the merchandise therein described. Section 5 enacts that for a violation of any provisions of the act the agent, owner, or masters of the vessel guilty of such violation, and who refuses to issue on demand the bill of lading provided for, shall be liable to a fine not exceeding $2,000.

The amount of the fine and costs for such violation shall be a lien upon the vessel whose agent, owner, or master is guilty of such violation, and such vessel may be libeled therefor in any District Court of the United States within whose jurisdiction the vessel may be found. One-half of such penalty shall go to the party injured by such violation and the remainder to the government of the United States.

It is first urged in support of the demurrer that the language of the act is not appropriate and sufficient to declare the doing of anything forbidden by it, or the failure to do anything commanded by it, an offense to be punished by criminal indictment; that the language indicates that the penalty is to be recovered in a civil suit by a qui tam action; that the Harter act is not a criminal statute, but deals only with civil rights and duties. There can be no doubt that Congress has the power to regulate transportation between the United States and foreign ports, and has the power to make the acts which by law it forbids, as between shipper and carrier, criminal acts. Considering that this legislation of Congress declares it to be unlawful for the carrier to insert certain clauses in any bill of lading relieving the carrier from responsibility for negligence, and declaring it to be unlawful to refuse to state therein certain matters intended to be for the protection of the shipper, and considering the fact often declared by the courts that the shipper in accepting the bill of lading which the carrier is willing to issue acts under a practical compulsion and is not at liberty to accept or decline the proposed contract as one who is a free agent, it is quite clear, I think, that the intention of Congress was to come to the relief of the shipper by affording him an effective remedy. The intention, it is apparent, was to make it an act punishable by fine for the carrier to refuse to issue to the shipper such a bill of lading as the act of Congress declared was lawful and was a compliance with the duty of the carrier. The language used is:

'For any violation of any provisions of the act, the agent, owner, * * * guilty of such violation and who refuses to issue on demand the bill of lading herein provided for shall be liable to a fine not exceeding two thousand dollars. * * * One-half of such penalty shall go to the party injured by such violation, and the remainder to the Government of the United States.'

Under our system, the approved proceeding for enforcing the liability to a fine imposed upon any one who has been guilty of a violation of law is by indictment, conviction, and sentence in a criminal court. To be liable to a fine is to be punishable by a fine, and to enact that an unlawful act is punishable by a fine is to declare that it is contrary to the public justice of the enacting sovereign. U.S. v. Reisinger, 128 U.S. 398-402, 9 Sup.Ct. 99, 32 L.Ed. 480.

Section 5 also provides that:

'The amount of the fine and costs for such violation shall be a lien upon the vessel whose agent, owner or master is guilty of such violation, and such vessel may be libeled therefor in any District Court of the United States within whose jurisdiction the vessel may be found.' This requires that the recovery by libel against the vessel be limited to the...