The opinion of the court was delivered by: KIRKPATRICK
The United States filed this libel against the steamship Barbara Cates for damages caused by the vessel running into a dike, constructed at government expense in the Delaware river and known as the Pea Patch Island dike. The libel avers that the cause of action is within the admiralty jurisdiction of the court; also that the respondent is further liable under sections 14 and 16 of the Act of March 3, 1899, as amended, 33 U.S.C. §§ 408 and 412 (33 U.S.C.A. §§ 408, 412). The prayer is for process "according to the course and practice of this Honorable Court in causes of admiralty and maritime jurisdiction, and/or as provided by said provisions of the Act of March 3, 1899. * * *"
I. Exceptions to the libel were filed upon the ground that its subject matter was not within the admiralty jurisdiction of the court. They were overruled without prejudice and the question reserved for further ruling. The Barbara Cates (D.C.) 8 F. Supp. 470. The plea of lack of jurisdiction was renewed in the answer filed in behalf of the Barbara Cates, without prejudice to its original exceptions. Subsequently a cross-libel was filed by the owners against the United States for damage to the ship.
At the beginning of the hearing the question of jurisdiction was again raised. At that time I was of the opinion that admiralty jurisdiction was wanting, but that the averments of such jurisdiction could be treated as surplusage and that the proceeding could be treated as a libel on the law side of the court under section 16 of the Act (33 U.S.C.A. § 412). What was said was, "I will take that position provisionally at the present time." Testimony was taken, and the matter is now before the court for disposition.
After a careful reconsideration of the question, I have now come to the conclusion that the cause is within the admiralty jurisdiction of the court, and so hold.
If this were simply a case of maritime tort, I would have little doubt that admiralty jurisdiction was wanting. In spite of the small opening in it (less than 100 feet in some 19,000), the dike was unquestionably an extension of Pea Patch Island and as such part of the land. While in a remote sense it was an aid to navigation, it was not the kind of direct aid (beacons, piles for anchorage, etc.) which the Supreme Court has recognized as giving rise to exceptions to the general rule that collisions between moving vessels and structures grounded on the bottom are not within admiralty jurisdiction. "The mere fact that its [the dike's] presence may affect the flow of the water and thereby ultimately facilitate navigation is not enough to bring the injury within the admiralty jurisdiction." The Panoil, 266 U.S. 433, 45 S. Ct. 164, 165, 69 L. Ed. 366.
But this action is an in rem proceeding for a penalty. Section 14 of the Act of March 3, 1899 (33 U.S.C. § 408 [ 33 U.S.C.A. § 408]), provides that it shall be unlawful to injure any dike built by the United States. Section 16 (33 U.S.C. § 412 [ 33 U.S.C.A. § 412]) imposes certain penalties upon any vessel used in violation of any provision of section 14. The penalties are specified. They are: (1) "The pecuniary penalties specified in the preceding section" (these penalties are fines and imprisonment); and (2) "in addition thereto * * * the amount of the damages done by said * * * vessel." If nothing beyond a tort liability had been contemplated, the added clause by which the vessel is made to respond in damages would have been wholly unnecessary, because that remedy already existed under general admiralty law, and Congress had no power to extend it to tort cases beyond admiralty jurisdiction.
In actions for fines and penalties for violations of revenue, navigation, and similar laws, admiralty jurisdiction has been universally recognized. It is derived from the subject matter, and is limited only by the requirement that the seizure be in navigable waters and not on land. "It is the place of seizure, and not the place of committing the offence, which decides the jurisdiction." Marshall, C.J., in U.S. v. The Betsy & Charlotte, 4 Cranch, 443, 452, 2 L. Ed. 673.
In The Scow 6 S, 250 U.S. 269, 39 S. Ct. 452, 63 L. Ed. 977, the question of admiralty jurisdiction was directly involved, and the jurisdiction was upheld. That was a proceeding for violating an act prohibiting illegal dumping in New York Harbor. The action was in admiralty. In the court below (D.C.) 247 F. 348, 349, Judge Hand began by saying: "The jurisdiction of this court depends upon the following language of section 4 of the act of June 29, 1888 (Comp.St.1916, § 9937 [ 33 U.S.C.A. § 450]): 'Any boat or vessel used or employed in violating any provision of this act, shall be liable to the pecuniary penalties imposed thereby, and may be proceeded against, summarily by way of libel in any district court.'" The Supreme Court states that "appellant * * * denied the jurisdiction of the court to entertain the suit." In upholding the jurisdiction the Supreme Court said: "The act of Congress here in question imposes a direct liability upon the vessel for the pecuniary penalties prescribed, and declares that it may be proceeded against summarily by libel in any District Court of the United States having jurisdiction thereof. * * * It treats the offending vessel as a guilty thing, upon the familiar principle of the maritime law, and permits a proceeding against her in any court of admiralty 'having jurisdiction thereof' -- meaning any court within whose jurisdiction she may be found. Libels of this character, without previous conviction of the responsible persons, have been entertained under this act from the time of its enactment, and dealt with upon the merits, without question as to the jurisdiction until now. * * * If it be not a proceeding for enforcement of a penalty or forfeiture incurred under a law of the United States within the meaning of the minth subdivision of section 24, Judicial Code [ 28 U.S.C.A. § 4169], the act of 1888 itself confers jurisdiction."
In The Scow No. 9 (D.C.) 152 F. 548, 549, in a similar case, the court said: "The proceedings against vessels for which the statute provides are proceedings in admiralty, and they are to be conducted in all respects as other proceedings in admiralty are conducted." To the same effect is The Scow No. 36 (C.C.A.) 144 F. 932.
It will be noted that the two cases last cited (the first in the District Court of Massachusetts and the other in the Circuit Court of Appeals for the First Circuit) were proceedings under section 16 of the Act of March 3, 1899 (33 U.S.C.A. §§ 411, 412), the same section of the statute under which the libel in the present case has been filed. The violation, of course, was of section 13 (33 U.S.C.A. § 407) prohibiting dumping, instead of section 14 (33 U.S.C.A. § 408) prohibiting damaging government structures. However, the point throughout them all is that the quasi criminal laws passed by Congress to regulate the behavior of vessels in navigable waters or to improve navigation and protect harbot facilities may be enforced by the courts of admiralty.
The conclusion here reached is certainly in conflict with some of the language used in Aktieselskabet Dampskib Gansfjord v. U.S. (The Gansfjord), 32 F.2d 236 (C.C.A.). The court said: "The injury alleged being to a structure which is to be regarded as land was not cognizable in a court of admiralty." But it is very important to understand just what was really decided in that case. The cause of action was the same as that in the present case. The libel was filed on the law side of the court. The Circuit Court said: "The libel did not purport to be one in admiralty." Exceptions to the jurisdiction of the court either as a court of admiralty or as a court of law were filed, and overruled by the District Court (25 F.2d 736, 737), which held that the libel was a proceeding sui generis in character, and that, although it was not strictly within the admiralty jurisdiction, Congress had the right, under its broad powers to regulate commerce, to prescribe procedural forms for the enforcement of remedial legislation and that "the seeming confusion of admiralty process for the enforcement of a declared lien with the legal form of attachment" was within its authority. The holding of the District Court, 25 F.2d 736, was that, though the action had been brought at law, admiralty procedure was allowable, and the Circuit Court of Appeals affirmed the decree.
In view of the question before it, I regard what the Circuit Court of Appeals said in the Gansfjord Case as dictum, and it seems to me so directly contrary to the long-settled principles upon which jurisdiction in case of proceedings against vessels for fines, penalties, and forfeitures rest that I am compelled to differ with it. I agree with the statement of the District Court in the Gansfjord Case, 17 F.2d 613, 614, that the Act of March 3, 1899 (33 U.S.C.A. §§ 408, 411, 412) belongs to "the category of those quasi criminal statutes which provide for the imposition of fines, penalties, and forfeitures" and that the unliquidated damages were intended as additional penalties imposed upon the vessel as the offending thing.
II. The practical importance of the question was not great either in the Gansfjord Case or in this one. In that case jury trial had been waived by stipulation. In the present case, even if the libel could be treated as on the law side, I think the claimant would have also clearly waived his right to jury trial. See Prince Line v. American Paper Exports, Inc. (C.C.A.) 55 F.2d 1053, 1057. The court in dealing with a very similar situation there said: "To be sure, it did not definitely appear at the outset on just what the libellant was relying; it is fair to construe the libel as possibly sounding in contract alone. But it became abundantly plain as the cause proceeded that the pleading spoke with two voices, and meant to rely upon the Shipping Act (46 U.S.C.A. § 814 et seq.), if a contract to carry at the established rates was not ...