i26

Wallace delivering the opinion, that in torts of misfOOisanMi like the violation of a trade-mark, agents and serVants are' persotlf1:1iJiy;lia'ble, to citil1g.. v. GrltY, ly.fit,Q4ellv. HarmofJX, 13 78. ,It is there, is ,8 class of as me're ,the ca?be: ,although have, pated Ill. Wellets ordinadJy the infringer q\lIluot tneresponsibility by wasact,ing for !lnother. 14 Blatchf,: 4 455. tn,'view,9f the authoribe .overruled. . '

,y..

-

.

,.

.

I

I'"

';!

THE

KODIAK.

December 5,'1892.),

.' "

UNITED :STATES v. THE KODIAK.

1:

c'

(District

Alaska.

WATERS

,Where lLvesselis;lieIaedtor violation; JOt Rev. St. § 1956; fQrbldillng the of ter!iOOry, or the, wa!iel"',thl'lrepf,$uchseizpre being DlaAewitbintheentr3I\.C!I' otCoolt's inby ,a Una dra"l'A ,froID ,Cape to Bede. bJ' a l;;w;tes in of ordersfr()P:I; the ,government, it must be'prestuned that suchordetswere given in the'as'sertlon ot territorial jurisdiction over the waters of the inlet; and, ilSJthe right to such a .Poll.tlpal,Q.uestioD, thecl¥lrts lnquJ,re ILOO ,but will jUrisdiction as thus by the pollticit1' branch ot the government. ' ' ,
2. ALAsJUlir !Fttn' FISHllltuE:S....FISHING BY NATIVES-TREkStmY·. RlllGULATIONS. ltev· St. "I 1956, forbids the k:iJllng ot fur.bearingaIlimllls within. :the

llmits, ,ot.A,l.l!.ska terrltQry, or. the wlJ.ters thereof, thesecretary Qtthe 'treasUJ.t tQ' the kllllng of such ,a.n1p1als; except tnr seal.rlndersuch regn14tforlsashe may prescribe. By an otder of April 21, 1879; "tbe .seeretary fOllbade the kllllng of such animalJJ' by any other perSOIVJ1;l!.8.l\ use of during cer· tain p1OIl#ls,and deC)H,Lred that no vessel wouldbeall0\Ved to anchor in. the otter-killing grounqs, except n:ssels parties of natives to: 0'11 from SUch killlng grounds.: Held, that this,regulation was not vi(jI$.tf1(li'by a fur ,COlDPll'J;ly which, 1n. pW'suance of withnati"es at the l;>eglnn1ng of the' seaaon, took On ,board of its. sbiPParties of such natives, aDd anchored with them in the 'killlng grouiids, fUrllL'Ihlng l them with clothing, provlsioI1$, and the necessary outfit, andal": lowlug,them to live on board andI)1ake huntingexcurl:!ilillS theretrom in tb,elf and at ,the end of the ,season usually ,pUrchasing the skins from, them' thougheaeh native was free to sell ills skins elsewhere; no firearn1sbeing used, arid no white men taking any partm the huntirig or killlng, and the natives not being in any way hired or engaged by the comVany.

Libel filed in behalf of the United States for the forfeiture: .(ilf·the schooner Kodiak for a violation of· Rev. St. § 1956, forbidding1;Jlekilling.of fur-bearing a:nimalswithin, the Alaska Writory, or the waters thereof., Libel dismissed. C. S.J16liIison, Atty. . : :A. C.' na:rry'ltnd John S. Bugbee, for claimant.
In Admiralty.

THE KODIAK.

127

TRUITT, Pi,strict Judge. The libel whi.ch was, dIed· in this case on the 15th'of June, 1892, alleges that the schooner Kodiak, on or .about the 6th of June,1892, was seized by HenryL. Johnson, commander of tl;le United 'States ,ill Cook's inlet,in the waters of Alaska, and jurisdiction of this court, and then sets out the cause of said seizure as follows:
"That saler vessel, her capta1lJ., officers, and crew, asBiBted by a large' num· berot natives of Alaska, were at'saJdtlme unlawfully engaged in killing, and did kill, tur-bearing animals, knOwn as 'otter,' within the Jim,its ot Alaska. territory, in the thereof, in violation Qt the provisions of. section 1956 of the' Revised Statutes of' the United States in such caseS made. provided-" . ., .

aecijon is as follows:

"No person shall kill any otter, mink, marten, sable, or fill' seal, or other tur-beariD,g. animal,. within the, limits of. A,laska territory, or in the waters thereof, 'and: .evei:yperson guIlty. 'thereof shall; for each otrense, be fined not less'thM two hundred nor DlO're than one thousand dollars, or imprisoned not more Il1x months, or both; and all vel'lselS,' their tackle, apparel, fUrniture, and cargo, found engaged in violation of tl).is.section, shall be forfeited. But the secretary Of tho shall have power to anthorize the killing of any maHen, sable; Or other tur-bearing animal, e:x:cept fur seal, under such regtllations as he may prescritie; and it shall be the duty of the secretary to prevent the kUling of any fur seal, and to provide for the execution of the provisions of this sectlon, untlilt is otherwh,e provided by law. Nor shall he grant any privilegesullder this section,"

After theifiling of the-libel herein, on,June 18, 1892, the master of the Kodiak, intervening for and in behalf of the vessel, her tackle, apparel, furniture, and, cargo, appeared and alleged that at the time of the seizure of said property he was in possession thereof, and that it belonged to the Alaska Commercial Company, a corporation duly organizedUBder the laws of·California. This company in subsequent proceedings appeared as claimant, and on the 4th day of October, 1892, filed an answer to the libel. In this answer, by failing to deny, it admits, the allegations of the libel as to the time, place, manner, and authority of the seizure, but denies any violation of the proviSions of section 1956, or any other statute whatever, or the commission of any act which it might not .lawfully do under and in pursuance of the authority conferred by regulations of the secretary of the treasury of the United States, issued and prescribed on the 21st of April, 1879. The regulations referred to in this answer were issued by Hon. John Sherman, and are given in the following notice or circular:
"Treasury Department "Washington, D.O., April 21, 1879. "Section. 1956 of the Revised Statutes of the United States provides that no person shall, without the consent of the secretary of thll treasury, kill any otter, mink, marten, sable, or fur seal, or other fur-bearing animal, within tb:e limits of Alaska territorY, or in the waters thereof, and that any person convicted of ,a violation of that section shan, for each otrense, be fined not less than twohtmdred nor more than one thousand dollars, or be imprisoned not more than six DlontllS, or both, and that all vessels, with their tackle, apparel, furnitUre, and cargo, found engaged in violation of that section, shall be forfeited.; - No fur-bearing animal will, therefore, be allowed to be killed, by persons otb:er than the natives, within the limits of Alaska territory, or in -the, .ttJ.ereof, except fur seals taken by the Allulka· Oommercial Oompany in pursuance of tlJ,eir lease. The use of firearms by the natives, in. kill-

FEDERAl, REPORTER;

vol. 53.

!1ng1oftef:.f

of June, JulY', 'AugttSf,arlli is will' be allowed to anchor,mthe well·1C1own t1b.ose ,"Ibl9!l JDaycarry 9f natiyes,to pr fl'qmsuch ldlUug, gi,0lWds' ..lUid. it wlll be· the duty of· the ·officers. of t1l0 United States, who pili,- be in that locaijfy, to take all . measures. to enforce all the pattiS· and' penalties Of the'lll.w,against,per86ns found guilty of :t violation thereof. White men lawfully married. to na1l1TeB, and residing within the territory. are considered nati;vell. wit1:lln the m6lUling of this order. , "John Sherman, Secretary of $e Treasury."
llerebY,:iicOblblted!.'n·No'

Two prineipal questions arise in this case: .' . ' (1) Was the the <:If, her seizure, witp.in waters pver which the United States had jurisdiction to make the same? and (2) If so, were the acts proved by the evidence to,have been committed a violation of section 1956, under the circular 'of the secretary of the treasury? , ... The evidence touching the first question is that ,the vessel on June b 6;,1892, .atthe timeof·the seizure, was in latitude 59 9' N., longitude 152 41' W., well inside of Cook's inlet, lying in a ca;lrn, within sight of the shore, but about 20 mllesdistant from it, at the Jlearest pofut. Cook's iruet is on the eastern of that portion, of Alaska which bOl'del's on the Gulf of Alaska. It is about 47 miles wide at its entrance, and extends northward futothe mainland a distance of, perhaps;'HO miles. The Kodiak, when seized, was, as shown from the map in evidence, at leaSt three four mUes inside of a line drawn ,across the entrance to theiIdet from Cape Douglall to Point Bede, the nearest headlands,>and almost equally them, but. Somewhat nearer to Cape Douglas. It was distant contended: on behalf of.the claimant that these'facts show that this court has no jurisdiction to try the case, for the reason that the municipal laws of the United States have no force upon the sea beyond a marine league or three miles from the shoreline, and, that the statute prohibiting the killing of fur-bearing animals withfu the limits of Alaska territory, or"1n the waters thereof," only means; so far as it applies to the aea, ad1smnceof three miles from the mainland or islands. If this position is correct, congress did a vain and useless thfug :when it enacted the statute under which this prosecution is had; for, from the nature and habits of the sea otter, if hunteL'S are allowed to come with their vessels and hover along the coast within a few miles of shore, though beyond a marine league therefrom, and kill them, without molestation, then the laws for, their protection are futile, and might as well be repealed. But the position is not correct. The contention is nota valid one. In Church v. Hubbart, 2 Cranch, 187, the doctrine is. announced that nations may prevent the violation of their laws by seizures on the high seas, fu the neighborhood ,of their own coast, and that there is no fixed rule prescribfug the distance from the coast within which such seizures may be made. However, it can hardly be claimed that any portion of Cook's inlet is ''high sea," within the accepted meanfug of the phrase, for it is well landlocked by island's extendfug from Kadiak island to Cape :Elizabeth, on the east, and can only. be entered by coming fu near some of these islands, or' by the way of Shelikoff straits. In Kent's CoIIltllentaries,(volmne 1, p. 30,) it is stated that0

"or

TH'E KODIAK.

129

,. "The extent of jurtsdiction oyer adjoimn,g seas. ls . a qUeE!tion ot. 4i1nculty and of dubious· right. As ff1.r as a nation can conveniently occupy, and that occupancy is· .by priO'r . or treaty, the jurisdiction,:fs exclusive, Navigable rivers which flow 'through a territory and the sea coast it, and the navigable waters included in bays and between headlands and arms of the sea,. belong to the sovereign of the adjoining. tory, as being necessary to the safety of the nation and· to the undisturbed 11l:le of the neighboring shOl'es.".

And on the same subject this learned author says:
"Considering the great extent of the American c<.ast, we have a right to claim for fiscal and defensive regulations a 11beral extension of maritime jurii;diction. It would not be unreasonable, as I apprehend, to assume, for domestic purposes conuected with our safety and welfare, the control of the waters on our coasts, though included within lines stretching from quite dilltant headlands, as, for instance, from Cape Ann to Cape Cod, and from Nantucket to :Montauk point, and from that point to the capes of the Delaware, and from the south cape of Florida to the Mississippi."

In 1849 Mr. Buchanan, secretary of state, declared the claims of the United States to maritime jurisdiction to be embodied in the following proposition:
"The exclusive jurisdiction of a nation extends to the ports, harbors, bays, mouths of rivers, Ilnd adjacent parts of the sea inclosed by headlands, and also to the distance of a marine league, or as far as a cannon shot will reach from the shore, along its coasts."

1 Whart. Law Diet. § 32. The case of The Louisa Simpson, 2 Sawy. 57, was a lmit to enforce forfeiture of said vessel for a violation of section 4, Act July 27, 1868, extending the laws relating to customs, commerce, and navigation over the territory of Alaska, and the executive order of February 4, 1870, prohibiting the importation of "distilled spirits into and within the district of Alaska." In the decision by Judge Deady, which was affirmed on appeal, it was, held that the simple act of taking these spirits within Kotzebue sound was a violation of the law"Because it was an 'importation of distilled spirits into and within the district of Alaska.' The phrase, 'district of Alaska,' as used in this act and executive order, in my judgment, includes that portion of the sea along its coasts which 11e.s inside ot a line drawn from the promontory of Point Hope to the Cape Prince of Wales."

Now, it is true that all the waters of this sound are far east of the western line described in the cession of this territory by Russia to the United States by the treaty of March 30, 1867, but the Russian government claimed and exercised the same authority and jurisdiction over the waters of which Cook's inlet is a part as it did over the waters along the western coast of its American possessions, and if the United States now maintains jurisdiction over Kotzebue sound, which is about 160 miles between projecting headlands, not landlocked, and in size more than three times the area of Cook's inlet, it certainly can, with much better claim. of right, maintain jurisdiction over the latter. In re Cooper, 143 U. S. 472, 12 Sup. Ct. Rep. 453, which was an application to the supreme court of the United States for a writ of prohibition to the district court of Alaska to restrain the enforcement of a sentence of forfeiture and condemnation against the schooner W. P. v.53F.no.1-9

180

FEDERAL:lltlll"ORT!lllh vol. 53.

M:r;

'Ill

that the court

Isaid

theUlnn,i01} of Say·

:<0,:

"f ", f,

thtj'rj:icOt<'l'shows thelooality, of the alleged otrmme'and 'it also'fd1oWs that tlle ofrltlel's' cit· the'United States, acting under the orders of their government, seized tll!s ellgl1ged in catching seal, and took her into the.,nearl¥!t port" and, that ofllcers of the gov· ernment libeled ller, ADd 'pf$e(nM agairlst 'liel' foi'1he·violatiM, of tIre laws of tbei1:.,":l1ited States, in the distrlet oourt,l'PlIUlting in l1#r condemnatioll. How did'it:hitppen. that the,ofllCef,s.received such, ordeli'sl It must be admitted, that "they ,were given in ,t4e iallSertion on the part, of"t)l1s gpvernment of te r7 ritorialJdllr1sdiation, over Beblling sea. to an, ,ex,te:ntexoeeding fifty·uine miles shores. of Alaska... ' ,

,said that Commander JohnsoD,I,withtthetJnited BtateSSWpMohican, ,was, by g()vel1illle:p.t, cruising along the. c9asf, of . and ?rder,s of withi.ri :ili, ,'t,erspf ,Cbo,,k:'S ,inlet at the ' 'lie,';:m,,ade,' thiS,' l:Iow;!tlleit,'did'it happ@l!tlidthe recei-roo'sue'h . It Dn1St M presumed) I think, that they were given in the issertion on the part of· thisg()'ye1'nIDent of, teiTltdrial jurisdiction these waters. And,
wa,

risdiction or dominion, for they are of a political nature, and not judicial. National dominion and sovereignty fuay'be extended over the sea as: well as over :tb.elaDd, mId inouil' governmeI,lt,when congress a.n.d tha:prestdent assert dominion W. sovereignty over any portion of the 8.OOlt OJ,l,overanybody,of water, the courts are bound by it. In re TheJaane$G. Swan,,50 Fed.o'Bep.l08. ,These·. oonsiderations' dispose of the first qUe$tion raised by the claimant./ l,thinkthis lCO.urthas .jUrisdiction of the case. The next question is ,suffieiency ot the evidence, when applied to thel!lUltute ,a,n.d,.Q:t'der of the iSecretal'y, the treasury, to of prayed for in the warrant libel, ofWf,6wation., Theclaima,tiiCQi'pora'tio:n"was the first ,lessee of theright::to take under the, act ofJu,ly l,,1870, entitled "An act ,to: ,prevent the extermination of fur-betwing animals in Alaska." This lease was executed and delivered August 31, 1870, for the:temn'of20 yearsdlromMay 1,.1870. ;In1oonducting this busi· n 8Illd,jjj cOnn.ection with it, thm. company established trading ss, postsanQ1s:tores at different points ifuthe territory,f<i:lrtrading with the native2l 8JDd b)lyi:lil:g. furs, and also: {lwned and operated a number of vessel$ 'foruttse goods"waresi'and different kinds of freight to., these trading posts, and in ·bringing. away' from them furs and other :articles of' co1J:lD1eree ,purchaSed.. the plant for conduct· ing thfg extensive business Ifhe company ill-vested, a large amount of lllon.ey,md'at ithe expmwtion of its lease it still kept up these trading .posts,and continued to :do J>usiness along; its lines, except -as to. pri:vilep.granted. by the lea$B, .and .obligations thereby in· cUlTed. 'Whe: K'Miak was one ofitB:vessels used, in the ordinary demands .of its, busmess. The testimony. bearing directly upon the (lase 1$ not;voluminoUS', And "there is noeon£lict, as to the 'material facta.

THE KODIAK.

The locality of,the vessel at the time 'of her seizure has already been stated: further shows that at saidtime she had onbonrd 8 white men,consistingof her necessary officers and crew, and 10 natives or 30 more, whdwere out hunting, coming On board later in the day; that these natives had their "bedarkes" or canoes with them, and were armed with spears, clubs, and bows and arrows, used by them in hunting and killing·fur-bearing animals, especially'sea otters; that they had. on board the vessel 12 sea otter skins caught on the voyage, and 5 brought on by natives at English bay, and three of these animals, just killed that day, were brought on after the seizure, but that all had been killed by natives, and without the use of firearms. It is positively shown that none of the white men took any part whatever in, hunting from the time the vessel started on this trip until seized at Oook's inlet. Oonceding these facts, however, the prosecution contends that there was such an arrangenient or such collusion between the claimant and the natives as to make it a real party to the killing of these sea otters, and liable to the penalties of the statute. But I do not think the testimony SU!!tains this contention. All the direct evidence there is on this subject comes from the witnesses for the claimant, and from them it appears that the skinElof sea ottel'S'are very valuable, and the taking of them by the natives is the principal source of revenue from which they make their liwng. M. S. Washburn is the agent of the claimant at Kadiak, Alaska, and has been in its employ for over 13 years. He 'testifies that he is well acquainted with the habits and customs of the natives, and of their relations to the company, and its manner of doing 'business with them; that during the winter the natives sometimes organize hunting parties for taking sea otters,and in the spring, through their chief or some of their principal men, apply to the company's agent for transportation on one of its vessels to the well-known hunting grounds, and also for advances of provisions and clothing necessary for the hunt; that sometimes they wish to be landed near the hunting grounds selected, and hunt from the beach until such time as the vessel can return for them and take them to other grounds or back home; that until the last four or five years it was their custom to hunt from the beach, but since that time they usually remain on the vessel, sleep, cook their own food, and eat there, and go out from it in their bedarkes to hunt. He further testifies that the master of the schooner keeps an account against each Indian for all goods furnished; and for each skin brought in, and turned over to him for safe-keeping, he gives out a check or receipt, and at the end of the hunt, when the Indians leave the boat, they return these checks, and draw the skins which they represent. The natives can then sell these skins to any one who will give them the best price for them, as the company has no contract for their purchase, but they usually, though not always, sell them to its agent. But the company never hires or in any way engages them to hunt, and has no claim nor lien whatever on these skins. This witness and the master both testify that the natives who were on the Kodiak at the time of her seizure were there and were operating, under the plan, or arrangement as stated, and in no other way. This arrangement certainly accommodates the natives,

132

FEDERAL REPORTER,

vol. 53.

and no d()Ubt enables them,to make larger catches than they could l\Ssistance; but the company geta its benefits from the without profits on, goods sold and furs purchased, 'and, as it secures most of the trade,these profits probably pay it well for all trouble with the native hunting parties. And it is argued in its behalf that under the order of tl1e. secretary of the treasury, dated April 21, 1879, it had the right to do what the evidence shows it was doing. The portions of this order relied upon fortbis purpose-read as follows: "No fur-bear· ing animalswUJ, therefore,be allowed to be killed, by persons other than the natives, within the limits of Alaska territory, or in the waters thereof;" and, ''No vessel will be allowed to anchor in the well· grounds, except those which may carry parties of known natives to or from such killing grounds." There is no room for con· struction or verbal finesse in the first clause quoted. It excepts the natives from the general prohibition against all persons in section 1956, and is of the secretary of the treasury" that they may kill, under the restrictio:ns of the order, such fur-bearing animals. And the sec.ond clause also seems plain enough. It amounts to a permIt for vesl;leIs to carry natives to and fJ,'om the otter-killing grounds, and, whell so engaged, to anchor there. The Kodiak was doing nothing more than is permitted by this clause,unless allowing the natives to remain on board, to sleep and eat there, instead of landing them on the beach, am:\ selling them food and clothing, constitutes a violation of the law. ':6ut in IllY opini()ll, tlilese aCts do not, of themselves, con· stitute, noreyen import"a violation o( the statute. They might, in connection with othEn'eyidence, tend to prove such violation. But in this such other evidence, if any, is,. very slight., .It follows from these views that thelibel must be and it is so ordered.

THE ROSA.

In

re NEW'rORk HARBOR TOWBOAT CO.

(District Court, S.

n. New

York.

November 30, 18Q2.)

SlIIPPING-LnnTATION OF LIABILITy-SINGLE CLAIM-COMMON-LAW ACTION. WHEN NOT STAYED.

Where there is but, I/o . damage claim, full relief, under Rev. St. § 4283, can be had by answ/'lrillacommon-law suit. Hence a petition in an admiralty court to limit liability and to restrain the prosecution of a pending common-law action mUtltshow the eXistence. or probability of existence, of more than one damage claimant, and the need of an apportionment, in order to make such a special pr9ceeding either necessary or appropriate, under Rev. St. 4284, 4285; or els" it must show such a special case as does not admit of the full statutory remedy upon a sin,Q:le claim in a common-law suit. Failing such averments. this court must observe Rev. St. § 563. which saves to the suitor his common-law remedy, and refuse to entertain the proceeding or to enjoin the common-law action in the state court on a single claim, though such claim may exceed the value of the vessel. ·

In Admiralty. On exceptions to petition in limitation of liability. Wilcox, Adams &. Green, for petitioners. a,nd Edwin G. Davis, opposed. Henry Cleveland