United States v. The "Grace Lothrop"

delivered the opinion of the court.

Persous other than a shipping commissioner are in certain' cases forbidden to perform or attempt to-perform the duti&s usually required of such an officer, as prescribed by thé acts of Congress.

Atwood, the respondent, as the information charges, was the master of. the brig' “ Grace Lothrop; ” that he,- on the 18th of December, 1873, as such master, did knowingly receive and accept to be shipped on board of the brig five seamen engaged and supplied for the purpose contrary to the act authorizing the appointment of shipping commissioners to superintend the shipping and discharge of seamen, and that the seamen were so engaged and accepted by an agreement in writing not signed by them in the presence of a shipping commissioner.

Due monition was issued and served' by seizing the vessel, and the master, appeared and filed an answer. Among other things, he admitted that the brig when arrested was bound on a voyage to a' port in the West Indies, that he shipped the five seamen for that voyage, and that the shipping agreement was not signed by the seamen in the presence, of such a commissioner ; but he denies that he has incurred any penalty by shipping the seamen named in the libel without the presence of such an officer.. Hearing was had in the Circuit Court where the libel was filed, and the decree of the Circuit Court was in favor of the respondent, dismissing the libel, and from: that decree the United States appealed to this, court.

Errors assigned are as. follows: 1. That the court erred in

lefore proceeding to examine the errors assigned,, it should be observed that the appellants contend that the wrongful act charged, if punishable at all, is punishable under the Revised Statutes, which, as they insist, went into operation eighteen days before the alleged wrongful act was perpetrated. Rev. Stat., sect. 5601.

Masters of every vessel bound from a port in the United States to any foreign port, other than such as are therein éx-. cepted, áre required by those statutes, before- they proceed on such a voyage, to make an agreement in writing or' in print with every seaman whom they carry to. sea as one of the crew, ■in the manner the act prescribes, which shall be as hear as practicable in: the form therein directed, to be dated at the time of the first signature, and to be signed by the master before any seaman -signs the instrument.

Vessels excepted from those requirements are all such as are engaged in trade between’ the United States and the British North American possessions or the West India Islands or- the Republic of Mexico ; nor do those requirements apply to masters of vessels where the seamen are by custom or agreement entitled to participate in the profits or result of a cruise or voyage, nor to masters of coastwise or of lake-going, vessels that touch at foreign ports, but they do apply without qualification to vessels of seventy-five tdns burden or upward bound from a port on the Atlantic to a port on the Pacific, or vice .versa; the vessels bound on such voyages being subject in that regard to the same rules, as those bound on -a voyage from a domestic port to "a foreign port: Rev. Stat., sect. 4511.

Detailed specification of the stipulation s and regulations which such an agreement shall contain are also set forth in the

Argument to show that vessels engaged in trade between the United-States and the West India Islands are not subject to the regulations enacted with: respect to-vessels employed in foreign commerce not falling within the' exceptions contained in the section, Is quite unnecessary, as it is as clear as language can make it that vessels engaged in trade between the United States and the British North American possessions and the West India Islands and-the Republic of Mexico are excepted from the operation of the clause made applicable to vessels bound from a p'ort of the United States to any foreign port,, by the words “ other than ; ” which clearly and to a demonstration exclude the voyages subsequently described from the category of those previously mentioned in the preceding part of the section.

Concede that the Revised Statutes do support that theory, still it may be suggested that, inasmuch as the cáse was adjudged in the court below as if it, was controlled by the previous acts of Congress, it ought to be determined here in .view of the same statutory provisions. Suppose that it is so, still it is certain that it will not benefit the libellants, as it is obvb ous that the antecedent legislation of Congress, when properly understood, must lead to the same conclusion.

Power to appoint shipping commissioners was conferred by the act of the 7th of June, 1872; and the act provides that the: general business of such a commissioner shall be as follows: 1. To afford facilities for engaging seamen, by keeping a reg

Where no such appointment has beeii made, the whole or any part of such business may be conducted • by the collector or deputy-collector of such place or port.

Appended to that section is a proviso that nothing in the act shall be so construed as to prevent the owner or consignee or master of any vessel, except such as are described in sect. 12 of the act, from performing himself, so far as the ship is concerned, the duties of shipping commissioner’ under the act. Id; 263.

Sect. 12 of the same act provides that the master of every ship bound from a port in the United States to any foreign port, or of any ship of the burden of seventy-five tons or-upward bound from a port on the Atlantic to a port on the Pacific, or vice versa, shall, before he proceeds on such voyage, make an agreement in writing or in print with every seaman whom he carries to sea as one of the crew, in the manner particularly set forth in the act, which’ shall be dated at the time of the first signature thereof, and shall be signed by the master before any seaman signs the same.

Agreements of the kind, subject to certain exceptions not necessary to be noticed, must be signed by each seaman in the presence of a shipping commissioner; and, when the crew is first engaged, the agreement must be' signed in duplicate, one part being retained by the commissioner, and the-other part to contain a place or form for the.'description and signature of persons engaged subsequently to the departure of the ship. •

Annexed to sect. 12 is a proviso equivalent to what is enacted in the Revised Statutes,, that the section shall not apply to masters of vessels when the seamen are, by custom or agreement, entitled to participate'in the profits or 'results of a cruise or voyage, nor to masters of coastwise vessels or of lake-going vessels that touch at foreign ports.

Explicit as that provision is, it may well be contended that it applies only to the twelfth section of the original act; but Congress', in the month of June, 1874, passed another amendatory act, by which it is provided that none of the provisions of the original act shall apply .to sail or steam vessels engaged in the coastwise trade, except the coastwise trade between the Atlantic anjd Pacific coasts, or in the lake-going trade touching at foreign ports or otherwise,' or in the trade between. the United States and the British North American possessions, or in any case where the seamen are by custom or agreement entitled to participate in the profits or result of a" cruise or voyage. 18 id. 64.

• Though the act last referred to is subsequent in date to the supposed wrongful acts' of the respondent, .as alleged in the libel, yet. the language of the act is in terms an explicit declaration that Congress never .intended-that the original act should apply to vessels engaged in any part of the coasting trade, except that between the Atlantic-- -and Pacific coasts. Nor is it necessary to refer to that act to support the decree -below in this .case-, as the prior act expressly provides that sect. 12 of the .original act shall not apply to masters of vessels when engaged in trade between the United States and the. British North American possessions or the West' India Islands or the Republic of Mexico, which affords a' demonstration that the decree below, whether tested by the provisions of the Revised-Statutes or by the previous legislation of Congress, is correct.

.Masters of vessels bound from the portuf a State to a port in any other than an adjoining State were required by an early act.of Congress, before the- vessel proceeded on her voyage, to make an agreement in writing of" print with every.seaman of the crew, declaring the voyage and the 'term of time for which such seaman was shipped. 1 id. 131. Attempt is now made to support the theory of the libel, by invoking the provisions

Beyond all doubt, that amendment and the twelfth .section' of the original act must be read together iri disposing of-the present case, as the amended act was passed' before the supposed wrongful act of • the respondent was committed. When those two provisions áre read together, it is an easy matter to specify the cases in which shipping commissioners must act, or in which the agreement of the seaman is required to be signed' in the presence of such, a commissioner. They are as follows: 1. Where the ship is bound from a port in the United States to a foreign port, not including the ports of the British provinces or the ports' of the West India Islands or the Republic off Mexico, or lake-going vessels touching at foreign ports. 2 Ships of seventy-five tons burden or upward bound from a port on the Atlantic to a port on the Pacific, or vice versa.

Provision was made by the second proviso' in sect. 12 of-the original act that that section, should not apply- to masters of vessels where the seamen are by custom or agreement entitled to participate in the profits or result of. a cruise ‘or voyage, nor to masters of coastwise voyages or masters of lake-going vessels which, as before explained, touch at foreign ports. Three- other exceptions to the operation of the twelfth section of the original act were added to the preceding list by. the amendatory act, which provides that the twelfth section of- the act shall not apply to masters of vessels when engaged in trade •between the United States and the British North American possessions or the West India Islands or- the Republic of Mexico.

Duties are- assigned to shipping commissioners which all other persons are forbidden to perform, under the penalty therein prescribed; but the same section provides that nothing in the act shall be so construed as to prevent the owner or consignee or master qf anyfship, except such as are described in

Tested by these considerations, it follows that the provision requiring the agreements of seamen to be' signed in the presence of a- shipping commissioner refers only to the agreements described in sect. 12 of the original act; nor does it include those which are' excepted from the.operation of sect. 12 by the second proviso to the same section, nor either of the three cases excepted out of the operation of the same section by the amendatory aet subsequently adopted.

Penalties are imposed for shipping seamen contrary to the regulations which the original act prescribes; but it is' clear that the elause imposing the penalty doe? not refer to seamen who have agreed to make a voyage other than one of the two classes within thé operation of sect. 1-2, as modified by the amendatory act subsequently adopted. 17 id. 410.

Where the voyage to be made does not fall within the operation of sect. 12 as amended- by the subsequent aict, the owner or consignee or master of the ship may himself perform, so far as the ship is concerned, the duties of shipping- commissioner which the act. prescribes, as .the same is expressly authorized by the proviso to the eighth section of the act.

Shipping articles, called agreements in the original act under consideration, are to be made in writing or in print with every seaman shipped for the voyage before the ship proceeds from the port-of shipment; and if the voyage is a foreign.one in the sense already explained, or one' from a port of the Atlantic to a port of the Pacific, or from a port of the Pacific to a port of the Atlantic, in a vessel of the burden of seventy-five tons or upward, the agreement must be signed in presence of a ship, ping commissioner, unless it appears that the shipment was made fin a port or place in which no "shipping - commissioner has been appointed, in which event the whole or any part of the business of such a commissioner may be.conducted by the co llector, of the-customs or his deputy at the port or place of shipment. • ,

Such agreements with each and every seaman must be made before the ship or vessel proceeds 'for the .port .of destination

Ships may be liable to the penalty prescribed by the fourteenth section of the-act in case a seaman is carried to sea as one of the crew on board, though making a voyage excepted out of the operation of sect. 12, if it appears that tbe ship proceeded on such voyage before the master made the required agreement with the seamen in writing or in print,-provided the charge in the information covers such a delinquency; but the -sole charge in the libel in this case is, that the agreement was not signed by the seamen in the presence of a shipping commissioner. It contains no' allegation that the agreement was-not in due form, nor that it was not signed in presence of the owner or consignee, or of the master of the ship..

Enough-has already been remarked to show that the voyage was one excepted out of the operation of the twelfth section of, -the act, and that it was one where the owner or consignee, or the master of the ship himself, might lawfully perform the duties of shipping commissioner. Nothing being alleged to the contrary, it must be presumed that the required agreement was made in due form, and that it was properly signed by the seamen in the presence of some one of the three' persons authorized by the act to perform that duty, before the ship proceeded on the described.) voyage.

Decree affirmed.