926
FEDERAL REPORTER.
I
THE GOVERNOR ROBERT
f1. UNITED STATES.·
(Oircuit Oourt,D. Maryland. March 27,'1888.) SmpPINa-INSPECTION-VESSELS BELONGING TO STATE.
(Syllabus by the Oourt.)
The steam vessels belon,ll'ing to the state. of ¥aryland, and used by its offi· cers in the enforcement of the state fishery laws in the Chesapeake bay, to protect the state oyster,beds and fishing rights. and to. give relief to vessels In distress. are required by sections 4417 and 44l8tohave their boilers and hulls ,inspected by the United States, steam-boat inspectors, and are liable to the penalties of section 4499 for non-compliance with the provisions of the United,States law regulating steam-vessels.
Appeal from district court. was a libel of information, filed by the United States against the stEJamer Governor Robert M. McLane. to subject said steamer to the fine prescribed by section 4499, Revised Statutes, for refusing to permit her hull and boilers to be inspected by the United States local steam-boat inspectors for the port of Baltimore, Md.; sections 4417 and 4418 being the sections of Revised Statutes requiring this inspection annually. The state of Maryland filed its claim as owner of said steamer, and resisted the enforcement of said libel, claiming that the said steamer was used as an instrument of state government, to enforce the laws of the state of Maryland. relating to the protection of the of the Chesapeake which were owned by the state; and also that the said steamer, being engaged in no commerce, either foreign or interstate, was not subject to the laws of congress. The opinion of the district court, (MORRIS, J.,) upon which the decree was passed from which the appeal was taken, is reported in 31 Fed. Rep. 763. Oharle8 B, Roberts, Atty. Gen., for appellant. The inspectors' charge of $10 for inspecting hulls and boilers of said steamel'is a tax levied by the United States on an instrumentality of state government. 1 Desty. Tax'n, 34, 45; Cooley, Const. Lim. 483. The said steamer was engaged solely in the naVigation of the navigable waters of the United States within the territorial limits of the state of Maryland, and was not 'engaged in foreign or interstate commerce, and hen,ce was not SUbject to the inspection law of the United States. The said steamer being owned by a sovand used solely as a police boat on waters within the state of ereign Maryland, to enforce the laws of the state of Maryland, is another ground of exemption of said steamer. The Seneea, 8 Ben. 509; 'l.'he Oconto, 5 Biss. 463; The Bright Star, Woolw. 274; The Thomas Swan, 6 Ben. 42; The Sylph, 4 Blatchf.24; The Protector, 20 Fed. Rep. 207; The Fidelity. 16 BIatchf. 569; The Daniel Ball,lO Wall. 557; U. S. v. Moore, 2 Bond, 34; BUffington v. Day. 11 Wall. 113; Gibbons v. O.qden, 9 Wheat. 1.
Thomaa G. HaYe8, U. S. Atty., for the United States. The charge of $10 for inspection was not a tax, but only a reasonable com. pensl'tion for the service rendered. 23 St. at Large. 59: Packet 00. v. KeoJ Amrming 81
Fed. Rep. 768.
, THE BITTERNE·
927
. kuk, 95 U. S. 80; Packet 00. v. st.Louis, 100 tr. S. 423. The fact thati the said steamer navigated the public waters of the United States rendered her liable to the requirements of sections 4417,4418, Revised Statutes, although sbe was not engaged in foreign or interstate commerce, nor navigated these waters outside of Maryland. The requirements of said sections, being regulations navigation, were enforceable against all steam-vessels navigating the waters of the United States, irrespective of the fact whether or not they were engaged in any commerce. Congress has the power to subject said steamers to this inspection, both under the commercial and admiraltyc)ause of the constitution. Const. U. S.art. I, § 8; Gibbonsv. Ogden, 9 Wheat. 190; U. S. v. Oraig,. 28 Fed. Rep. 795; Gilman v. Philad,elphta, 3 Wall. 724; Bherlock v. Alling., 93 U. S. 99; The Daniel Ball,10 Wall. 566; U. S. v. Jack-' son, 4 N. Y. Leg. Obs. 454; South Oarolina v. Georgia, 93U; S. 4; Ha1"tmn/t v. Du Pont, 118 U. S. 223, 6 Sup. Ct. Rep. 1188; Const. U. S. art. 3, §2; The Belfast,7 Wall,,624; The Margaret, 9 Wheat. 421; U. s. v. Ferry 00·· 21 Fed. Rep. 332; Waring v. Olarke, 5 How. 465. The United States has paramount and e'l:clusive control over the navigable oBhe United States. The fact that a state is the owner of the steam-vessel navigating these waters does not exempt said vessel from the inspection. The state has transferred to the United States the power of regulating the naVigation of the public ters. U. S. v. Duluth. 1 Dill. 469; McCready v. Vi1"gi'nia. 94 U. S.391; The Santi8sima Trinidad, 7 Wheat. 353.
wa:-
BOND, J. This cause, on appeal from the district court, having been subD;litted by the proctors on each side upon their briefs filed herein for the consideration and judgment of the circuit court, we are of opinion thll.t the decision of the district court should be affirmed; and the reasons submitted in the district court in support of its judgment, in its opinion filed in the cause, are so well considered and .ample to sustain its judgment,· that no further opinion is required in the case, and a decree will be signed affirming that judgment.
THE (Diatrict Court, E.
BITTERNE. 1
CRANDALL .". THEBITTERNE.
n. New
Y()'I'k. July 27, 1888.)
8BIPPING-DAMAGE TO CARGO-NEGLIGENT STOWAGE-RUE-SEED ABOVE CHALX.
It ill in a vessel to stow bags of rape-seed over chalk In the hold of a vessel, In view of the certainty of damage to the chalk in case the bag. of seed should be broken.
In Admiralty.
Horace Graves and R. D. Benedict, for libelant. Wing, Shoudy &: Putnam, for claimants.
BENEDICT, J. This is an action brought to recover upon a bill of lading for a failure to deliver in like good order a quantity of chalk shipped
lReported by Edward G. Benedict, Esq., ofthe New York bar.
928
on board the steam-ship Bitterne. The evidence shows that the chalk was stowed in a pile in the hold of the ship, there leveled over, and a sail and canvas spread over it, and upon these pine boards. On the boards bags of rape-seed were stowed. Upon the arrival of the ship in New York, the chalk, when taken into the lighter, seemed to be permeated with black specks, and soon after, when exposed to the air, it beeame covered with verdure; in faet,a very fair crop was growing upon it, thus rendering it valueless as an article of commerce. The reason of this was that, from some cause or other, the bags of rape-seed stowed over the chalk had broken during theYoyage, and so the seed waslet down upon the chalk, where of course it germinated, with the results stated. The question of the case is whether it was negligence on the part of the ship to stow bags of rape-seed over chalk. In my opinion it was negligence. The chalk being an earthy substance, common knowledge would inform anyone that rape-seed sown upon it would germinate under. favorable conditions. The possibility that the bags of rape-seed might be broken in the voyage, and that in that event the seed would fall upon the chalk, was a matter to be taken into account by the master, and it was his duty to guard against the possibility of such an 0<:-' currence. The shipper could not know that seed was to be stowed over his chalk, but both he and the master knew that if seed was so stowed a breakage of the seed-bags would sow the chalk with seed. No doubt it was proper to stow the chalk at the bottom of the ship, and no doubt it was proper to stow other merchandise in the same hold; but in my opinion, in view of the certainty of damage to the chalk in case the hags of seed should be broken, it was negligence to stow the chalk under seed, when a breakage of the sep-d-bags would necessarily result in sowing the (lhalk with seed. Some effort has been made on the part of the claimant to rest a defense upon a clause in the bill of lading which exempts the ship from liability for wastage, leakage, breakage, or strainage of packages, or injury to wrappers, however caused. But this clause does not exempt them from liability for breakage of packages other than the packages named in the bill of lading. It is further suggested in behalf of the clain}ant that it was the germination of the seed that caused the damage, and that, inasmuch as the seed did not germinate until after the (largo had beendischarged, there is no liability on the part of the ship. But the damage was done when the seed was sown upon the chalk; once sown, it could not be separated, and was sure to germinate. The libelant must have a decree for the amount of his damages, with a reference to ascertain the amount.
END OJ' VOLUlI.Il
8G.
