THE PILOT.
437
loss of one day more for the use of only two hatches, instead of three, from the 13th up to the afternoon of the 16th, there would be but 21 days lost time chargeable against them, which is less than the amount saved by night work. As there is no proof that the ship was not allowed to discharge as fast as she could from the hatches used, the charterers did not exceed, therefore, the time at their disposal under the charter. The extra expense caused by working the ship at night amounted to $139.70. Such extra expense, by the ter111S of the charter, was to be charged to the charterer. The "latter, however, contends that it was chargeaWe tohim only in case night work was "required by himj" and that such night work was not done upon the requirement of the charterer, but because the ship demanded it, and was assented to on condition that the ship should pay the extra expense. Language to that eJfect appears in a letter of the respondents in answer to the shi.p's claim for a quicker discharge, and in reply thereto. The discharge at night, however, was as much for the benefit of the charterer as for the ship. In the demurrage account the charterers are given the ben'efit of the night work, which has saved them a.bout$434, which they would otherwise have been liable to pay the ship for demurrage. This night work was" required" by them in order to avoid the amount of demurrage. Under such circumstances,it is the plain intent of the charter that the charterer should pay the extra expense of night work. It is like a substituted expense. Jif'heelwright v. Walsh, 44 Fed. Rep. 380. The libelants are, therefore, entitled to a decree for that amount, together with one towage to Eighteenth street, and one to Forty-Second street, amounting to $35;. in all $174.70, with interest. The libelants not being successfulon the principal item of the claim, namely, $1,358, for demurrage, .no costs are allowed.
THE Pn.oT. UNITED STATES
v.
THE STEAM TUG PILOT. Apllil 19,1892.)
(Oircuit Oourt of AppeaZs, Ninth Oircuit. ,FOREIGN WATERS-TOWAGE BY FOBEIGN TUGBOA'J'S.
'fhe treaty between the United States and Great Britain of June 15, 1846, fixes the boundar)' between the two countries in the straits of San Juan de Fuca by a line ,following the middle of the strait, but also secures to each nation a right of free navigation over all the waters of the strait. HeZd, that all the waters north of the boundary line are "foreign waters," within the meaning of Rev. St, 4370, which excepts fromthe penalty therein imposed against foreign tugboats towing vessels of the United States. cases where the towing is, in whole or ill part, within or upon foreign waters. 48 Fed. Rep. 319, reversed.
,{SyUabus by the Court.}
Appeal fl'om the District Court of the United States for the District of WashingtoLl, Northern Division.
488
FEDERAL
REPUTED.' vol.
50.
Libel by,th& United Statesagainst'lihe British tug· Pilot;f()r ,"<?latlon ofsection 4370, 'Rev. St. ' Decree tOT libelant for $643 'and: CoIJt$; '(48 Fed. Rep. 319. The owner appeals. Reversed. . Burke, Shepard &;. Wooda, (Thos. R. 'Shepard, of counsel,) for appellant. P. H. Winston, for appellee. Before GILBERT, Circuit Judge, and DEADY and HAWLEY, District . Judges. GILBERT, Circuit Judge. On the 2d day of May, 1891, the British tug Pilot spoke the American bark Valley Forge in the straits of San Juan de Fuca at a point about ten: miles from the entrance of the straits, and three miles off Port Vancouver, in the province of British Columbia. The bark was an enrolled vessel, engaged in coastwise trade, and was proceeding on her from San Francisco to Port Angeles. A contract Was m:ade between the captains of the two vessels, by which it was agreed that the tug should tow the bark to Port Angeles, where the bark would exchange her certificate of enrollment for a register to entitle her to clear for a foreign port, and then should tow her to Departure bay, a British port, thence back, through tliestraits, to the sea. After picking up the bark, the tug towed her along the Vancouver shore, a distance of 38 or 40 miles, and thence across the straits to Port Angeles. The greater part ofthe towing was upon waters north of the middle line of the channel which the state of Washington from Vancouver's island. The bark lay at Port Angeles until the 6th day of May, when the tug was libeled by the United States for violation of section 4370 of the Re\'!sed Statutes. That seotion contains the act of July 18, 1866, entitled I!An act toprt>ventsmuggling and for other purposes," and the amendment to the same by the act of February 25,1867. It reads as follows: "Sec. 4370. All steam tUA'boatsDotllf the United 8tates, found employed in towing docnmented vessels of the United States plying from one port or place in the same to another, shall be liable to a penalty or fifty cents per ton on the measurement of every suchvlissel 80 towed by them, respectively, which sum may be recovered by way of libel or suit. This section shall not apply to any case. where the towing, in. whole or In part, .is within or upon foreign waters." . The waters of the straits of San Juan de FUCll, lying north of the dividing line between the United States and British Columbia, are "foreign waters," within the meaning of the statute. By the·treaty the and Great Britain of June 15,1846, the boundary line between the possessions of the two nations isroade to run through the middle of the straits. 'By the same treaty, however, itis stipulated that the entire, straits shall be open and free to both oountries·for thepurlJoses of navigation, so that the vessels of each may sail anywhere upon either side of the line; and under this provision it is contended that the waters north of the line cannot be considered fOreign waters, but straits are common tD both nations. We do not so construe the effeQt of the treaty. Notwithstanding the license of iree navigation over the whole of the straits, which is
'rHE PILOT.
i,
439
reserved to each of the contracting parties, a definite line of division is adopted, which determines the limit of jurisdiction of each nation. All waters north of the line are British waters, subject to the control and do-minion of Great Britain. All waters south of the line are American waters, and are under the jurisdiction of the United States. The privilege of free navigation exercised by eachl1ation of the waters of the other is in the nature of an easement, which in no way affects the question of the jurisdiction. The decree of the district court which is appealed from is itself a declaration of the doctrine of the exclusive jurisdiction of each nation over its own half of the waters ofthe straits; otherwiseit is not perceived that a British tug could, for an act committed upon the American side pf the line, be made subject to a penalty imposed by the laws of the United States. The word" foreign" means belonging to another nation or. countrYi belonging to or subject to another jurisdiction. The waters of the straits north of the boundary to and are subject to the jurisdiction of Great Britain, and hence are foreign waters. The United States, although having aright of free navigation, has no jurisdiction over them, except so far as its own citizens. The case of The ApoUon, 9 Wheat. 362, is relied upon by the appellee as supporting the doctrll1e that no part of the waters of the straits can be considered foreign to either British or American vellsels. The question which arose in that case was whether a French vessel, which had entered and anchored in the St. Mary's river, and then proceeded out to sea and to a Spanish port, had entered American waters, so as to be required to make entry at the customhouse of that district, under section 29 of the collections ,of; The St. Mary's river being the boundary between the United States and the Spanish possessions, upon the general principles of the law ofnation.s its waters were common, to both .nations for the purposes of navigation. The court, without deciding whether any of the waters of the river were American w,atE1rs; held that the true exposition of the section was that it meant to compel an entry at the customhouse of all vessels coming into our waters, being bound to our ports, and that the Appollon had not entered American waters, within the meaning oHhat statute. It is proper to note that the evident object of the amendmeQt contained in section 4370 of the statute is in harmony with the ,construction which we have adopted. The law, as originally enacted, ,did not embody the exception in regard to towage, in whole or in part, foreign waters. Upon the petition of "owners of tugs and ve.ssels on the,,lakes ri,!,ers of the northern frontier," the amendment of February 25, 1867, was niade. Its purpose .was to avoid the difficulty and incon,vepience .which the application of the statute upon the lakes of the northern frontier, where, as in the straits of San Juan de Fuca, the boundary line is a fixed line, but in practical navigation its position upon the waters would always be difficult to locate with certainty. The decree is reversed, and the case is remanded, with instructions to dismiss the libel, and to enter a decree for claimant.
440
FEDERAL REPORTER t vol. 50. DUNSMUIR BRADSHAW. Collector of Customs.
tI.
(Oircuit Oourt 4f AppeaZs, Ninth Circuit. April 19,1899.) BHIPPTNG-PUBLJO REGULATIONS-TOWAGE
BY FOREIGN TUGS. Under Rev. St. U. S. '§ 4870, imposing' a penalty against foreign tugs towing American veRsel!' from one,American port to another, except where the towing is pa.rtly in foreign waters, a Britiqh tug is not liable where the towing is done partly on the British side of the of San Juan de Fuca, even though it might have been done entIrely on tile' A merican side, hI the absence of any allegation that the British waters were entered collusively or for the purpose of evading the statute. .
. Appeal from the Distriet Court olthe United States for the District of Washington, Northern Division. The Lome, a British :tug, was seized by the collector of the district of Pugetsound, under the provisions of section 4370, Rev. St. U. S., for an,alleged illegal towing' of the ship Oriental, a documented vessel of the United States, from the seas through the straits of San Juan de Fuca and the waters ofPuget sound to Tacoma, in the state of Washington. The owner of the tug paid under protest a fine of $884, and brought this libel to recover the same as having been illegally exacted. The respondent answered, alleging that, although a portion of the towing ;was upon: the British side of the boundary line between the United states and the British possessions, it was not necessarily so, and that it nrigbt's.ll have been done upon the American waters. A demurrer to this defense was overruled, and a decree entered dismissing the libel, Dpolt.the ground' that none of the waters are" foreign waters," within the meaning of the statute. Burke, Shepard « Wooda,(Thom(J)J<B. Sllepard, of counsel,) for appellant. Patrick H. Winston, U.S. Dist. Atty., for appellee. Before GILBERT, Circuit Judge, and DEADY and HAWLEY, District . Judges. GILBERT, CitthlitJudge. The principles decided by this court in the case of The Pilot, 50 Fed. Rep. 437, Kovern the decision of this case. The additiona:l defense that the towing might all have been done upon the American side of the boundary line, and without entering foreign waters, can make no difference with the result. It is not alleged that the foreign waters were entered collusively, or for the purpose" on the part of the tug, of evading the statute. The decree is reversed, with instructions to sl1stain the demurrer tb the answer and for further proceedings.