The Candace

LOWELL, District Judge. Upon a careful consideration of the statute, I am satisfied that the penalties referred to in section IQ are the numerous pecuniary penalties imposed by sections 2 and S, and not the fines imposed by sections 1 and 6. By section 2, if the berths are not sufficient and suitable, the owners and master shall severally forfeit five dollars for each passenger, to be recovered by the United States in any port where the vessel may arrive or depart. By section S, the owners and master shall severally forfeit and pay to the United States two hundred dollars for each violation of any one of the three preceding sections, and fifty dollars for each violation of still another section, to be recovered in any circuit or district court within the jurisdiction of which the vessel may arrive or from which she may be about to depart, or where the owners or master may be found. It is clear that the fifteenth section gives a right of action against the vessel itself as well as against the master and owners personally, to recover these sums or any of them; a point which was very doubtful upon those sections alone, because [8] they do not, in terms, give an action against the vessel, though they do give jurisdiction to the courts of the district in which she may he found. But to apply the fifteenth section to the fines which may he imposed upon the master when convicted of a misdemeanor under the first-or sixth section is more difficult. In the first place, the penalty is or may be partly imprisonment. By the sixth section, for wilful failure to supply and distribute provisions, the master must be both fined and imprisoned, and both are discretionary with the court within certain limits; and both together are spoken of as a penalty; but it is a penalty which could not be enforced against a vessel. The case as applied to the first section is not so free from doubt; here the fine is a fixed amount, and could be ascertained before conviction, and is called a penally, and whether there shall be any imprisonment for a violation of this section is discretionary with the judge; but if imprisonment is imposed, it is certain that both that and the fine are but one penalty for one misdemeanor, and no doubt they would have been so termed in this section if the context had required them to be mentioned together, as it does in the sixth section. It seems, therefore, that the penalty imposed by this section is not of a nature to be recovered against the vessel. But even if we could separate the punishment, and consider the fine by itself as the "amount of the penalty,” referred to in the fifteenth section, there would be great difficulties and objections remaining. Suppose this fine to be recovered of the vessel in the first instance, how could the master on his trial for the misdemeanor avail himself of the fact? Not in bar certainly, for it is neither an acquittal nor a conviction, nor does it go to the whole of his punishment. Or suppose the master tried and acquitted, how could that judgment avail the owners of the vessel in a civil suit for the penalty? Again, a lien is commonly, if not always, a security for a civil debt or responsibility, including civil forfeitures under the revenue laws. To hold a lien over the property of a wrong-doer as security for a fine which may be imposed upon him after conviction of the offence is unusual, anil would not often be useful, because the defendant always stands committed 3 until his fine is paid; and this is the highest security known to the law for any pecuniary liability; but that such a fine should be sued for before it is imposed, and against the goods of a third person, is surely without precedent. Again it is to be observed, that what I have called the civil penalties of sections 2 and S may be recovered by a personal action as well as by proceedings against the ship, ánd are imposed upon the owners [in terms],4 as well as the master; but the fines of the first and sixth sections are imposed upon the master only, and are to be recovered only by indictment, and no allusion is made in these two sections to any other remedy, nor to a proceeding in the district where the vessel may be found. When, therefore, I consider the kind of penalty mentioned in the first section, which may be partly imprisonment, the person upon whom it is imposed, being the master only, the mode of its enforcement by a criminal trial and sentence, the absence of allusion to any responsibility of the owner or vessel; in all which respects it differs from the mere pecuniary civil penalties imposed by the other sections; and further that the ordinary office of a lien is to be security for a debt or civil liability, and the great difficulty of applying it in fact in aid of the criminal responsibility of a third person, and find that there are in the statute many civil pecuniary' forfeitures or penalties to which the fifteenth section giving these liens is properly and exactly applicable; and that to the only other criminal'penalty mentioned in the act, it cannot possibly be applied, before conviction of the master, because the amount is not fixed until then, — I am constrained to conclude, that it does not [at least before the conviction of the master,]4 give a lieu upon the vessel for the fines which may be imposed upon him for a violation of the first section of the act. Decree for the claimants. Footnotes [3] [S Am. Law Rev. 575, gives “convicted.”] [4] [From 3 Am. Law Rev. 575.] [4] [From 3 Am. Law Rev. 575.]