United States v. Monstad, 10163.
| Decision Date | 26 March 1943 |
| Docket Number | No. 10163.,10163. |
| Citation | 134 F.2d 986 |
| Parties | UNITED STATES v. MONSTAD et al. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Francis M. Shea, Asst. Atty. Gen., Leo V. Silverstein, U. S. Atty., James L. Crawford and John Marvin Dean, Asst. U. S. Attys., all of Los Angeles, Cal., Esther B. Phillips, Asst. U. S. Atty., of San Francisco, Cal., and Allan B. Lutz, Atty., Dept. of Justice, of Washington, D. C., for appellant.
L. K. Vermille and Overton, Lyman & Plumb, all of Los Angeles, Cal., for appellees.
Before DENMAN and MATHEWS, Circuit Judges, and McCORMICK, District Judge.
This is an appeal from a judgment of the district court denying to the United States recovery of a penalty against appellees, owners of the fishing barge Kohala, claimed by the Government to have been navigated without a certificate of inspection of the local inspectors of steamboats, required by 46 U.S.C. § 397, 46 U.S.C.A. § 397,1 a certificate issued after the inspectors have satisfied themselves that the barge is of a "structure suitable" for her venture, here carrying fishing passengers and her crew, and that she is "in a condition" that makes her use in navigation "with safety to life."2 The complaint also alleged that she was without any part of the equipment prescribed by 46 U.S.C. § 396, 46 U.S.C.A. § 396.3
It is stipulated that no certificate of inspection prescribed by § 395 of Title 46 U.S.C., 46 U.S.C.A. § 395, has been issued "with respect to the Kohala," and that she did not "satisfy" the inspectors with respect to "safety to life," without which satisfaction that statute prevents the issuance of the certificate.
The statute claimed to be violated is as follows (46 U.S.C. § 398, 46 U.S.C.A. § 398):
The Kohala is a navigable seagoing barge, having been converted from a self-propelling vessel to a barge carrying fishermen, in that her means of self-propulsion and her superstructure, including masts and rigging, were removed, a deck house was erected to cover a restaurant, a pump installed, and to provide storage space for fishing tackle and other equipment, benches were built along the rail for the fishing passengers she carried, and a live bait tank was erected. That is to say, the barge retained her steering apparatus and her hull lines were those of any vessel made to meet the movement of the waves and currents against her while moored at wharf or at anchor or being towed, in which latter event she would be assisted by the use of her rudder.
The Kohala was anchored by two bow anchors and one stern anchor in the Bay of Santa Monica, approximately one mile west of Redondo Beach, California. She was then at sea. United States v. Newark Meadows Company, C.C., 173 F. 426, 428; United States v. Ross, 27 Fed.Cas. 899, 900, No. 16,196. As so anchored by her commander, she was enabled to rise and fall on the slack of her anchor chains with the rise and fall of the tide, and also within the slack of the chains to move from right to left through the water with the varying wind and tidal and other currents of the harbor. That Congress contemplated the regulation of passenger carrying barges appears from 46 U.S.C. § 490, 46 U.S.C.A. § 490, providing for "Every barge carrying passengers, * * *."
The vessel had been so anchored in the bay for a period of upwards of two years prior to the filing of appellant's complaint. To what extent she had gathered barnacles and other marine growth requiring her to be taken to shore for their removal does not appear. The court takes judicial notice of the fact that such fouling of the bottom would require such treatment. Also, should the barge leak beyond the control of her pump, she would have to be towed to shore for repairs. Obviously, a vessel so carrying passengers as much requires the statutory annual inspection of § 395, as any other seagoing vessel.
The size of the barge was upwards of 100 gross tons, capable of carrying the large numbers of fishermen using her arriving in boats operating from the shore and returning thereto in "about one-half hour."
The question before us is whether or not the Kohala, so carrying passengers on the high seas, was being "navigated" as under § 398 during the period she was moving in the currents on the slack of her anchor chains in the manner above described. We do not agree with the opinion of the district judge, who relied upon a definition in Webster's New International Dictionary, 2d Ed., for the meaning of the word "navigate."4 We think she was navigated even within the definition of such a non-maritime publication.
Here, within the dictionary definition, she was managed by those in command of the barge so that she was "directed" and "controlled" in the passing currents of the bay by her anchor chains, whether or not she was capable of being further guided in such moving currents by the use of her rudder in combination with the pull of the anchor chains. We do not believe that the word "navigate" should be confined to the moving of a vessel from one port to another for the purposes of transportation of goods or passengers. This vessel necessarily must have moved from one place to another in the water, under the control we have indicated above; that is to say, she necessarily moved her passengers across the ocean currents, and had a movement in them.
Not only was the vessel so moving in the water under the guidance and control of her anchor and chains, but the safety of the fisherman she carried and of the vessel herself might require at any moment that the anchor chains be slipped to avoid or ease a collision with a vessel approaching in the fog, or a derelict carried toward her by the current or wind with the likelihood of collision.
The appellees concede that if during the course of or at the end of a voyage a vessel is anchored or docked, she is...
To continue reading
Request your trial
-
In re Dearborn Marine Service, Inc.
...a trip out and a trip back, it was tied up at the moment of explosion and hence not being "navigated", is frivolous. United States v. Monstad, 134 F.2d 986 (CA9 1943); Carr v. Hermosa Amusement Corp., 137 F.2d 983 (CA9 1943), cert. denied, 321 U.S. 764, 64 S.Ct. 520, 88 L. Ed. 1060 Summariz......
-
United States v. 21 POUNDS, 8 OUNCES, OF PLATINUM, 5265.
...12 S.Ct. 511, 512, 36 L.Ed. 226; State of Maine v. United States, D.C.Me., 45 F.Supp. 35, affirmed, 1 Cir., 134 F.2d 574; United States v. Monstad, 9 Cir., 134 F.2d 986. Moreover, it is well established that "statutes to prevent frauds upon the revenue are considered as enacted for the publ......
-
Carr v. Hermosa Amusement Corporation, Limited
...States Code1 to comply with the requirements of the United States local inspectors as to her structure and otherwise. United States v. Monstad, 9 Cir., 134 F.2d 986, 987. The Los Angeles local inspectors had required of the Olympic and other pleasure fishing barges operating in the neighbor......
-
United States v. GAHAGAN DREDGING CORPORATION, 286
...certificate as to her safety while so being navigated in her occupation of carrying fishermen at sea." United States v. Monstad, 9 Cir., 1943, 134 F.2d 986, at page 988. "The evident aim of the federal statute § 10 of the Seagoing Barge Act is to promote the safety of those on shipboard, an......