THE BAYONNE, 159 U. S. 687 (1895)

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U.S. Supreme Court

The Bayonne, 159 U.S. 687 (1895)

The Bayonne

No. 215

Submitted November 18, 1895

Decided December 2, 1895

159 U.S. 687


The District Court of the United States for the Southern District of New York has monthly terms. The decree in this case was entered December 21, and an appeal allowed December 31, 1892. On the 17th of the following January, during a new term of the court, the assignment of errors was directed to be filed nunc pro tunc as of December 31, 1892. Held that if that assignment could be treated as a certificate, it came too late, and, as there was nothing in the record prior to the expiration of the December term to indicate any attempt or intention to file a certificate during that term, and there was no omission to enter anything which had actually been done at that term, the case did not come within the rule that permits an amendment of the record nunc pro tout.

The filing of an assignment of errors in a circuit court, by order of that court and the taking a general appeal and its allowance by that court, is not a compliance with the statutory provision in the Judiciary Act of March 3, 1891, c. 517, 26 Stat. 826, and is not equivalent to the certificate required by that act.

In so deciding, the Court must not be understood as intimating any opinion upon the question whether jurisdictional questions existed within the meaning of § 5 of the Act of March 3, 1891.

In re Lehigh Mining & Manufacturing Co., 156 U. S. 322, and Shields v. Coleman, 157 U. S. 168, distinguished from this case.

This was a libel filed by the United States in the District

Page 159 U. S. 688

Court for the Southern District of New York to recover a penalty from the steamship Bayonne under the act of Congress approved June 29, 1888, entitled

"An act prevent obstructive and injurious deposits within the harbor and adjacent waters of New York City, by dumping or otherwise, and to punish and prevent such offences."

25 Stat. 209, c. 496. The first section of that act provides:

"That the placing, discharging, or depositing, by any process or in any manner, of refuse, dirt, ashes, cinders, mud, sand, dredgings, sludge, acid, or any other matter of any kind other than that flowing from streets, sewers, and passing therefrom in a liquid state, in the tidal waters of the harbor of New York, or its adjacent or tributary waters, or in those of Long Island Sound, within the limits which shall be prescribed by the supervisor of the harbor, is hereby strictly forbidden, and every such act is made a misdemeanor, and every person engaged in or who shall aid, abet, authorize, or instigate a violation of this section shall, upon conviction, be punishable by fine or imprisonment, or both, such fine to be not less than two hundred and fifty dollars nor more than two thousand five hundred dollars, and the imprisonment to be not less than thirty days, nor more than one year, either or both united, as the judge before whom conviction is obtained shall decide, one-half of said fine to be paid to the person or persons giving information which shall lead to conviction of this misdemeanor."

The act further provides for the punishment of every master, engineer, or person or persons acting in such capacity, respectively, on board of any boat or vessel, who shall knowingly engage in towing any scow, boat, or vessel loaded with prohibited matter, to an unauthorized place of deposit; requires masters of scows and boats carrying such matter to apply to the supervisor of the harbor for a permit defining the precise limits within which their contents might be discharged, and provides for a remedy in admiralty by the concluding paragraph of section four, which reads as follows:

"Any boat or vessel used or employed in violating any provision of this act shall be liable to the pecuniary penalties

Page 159 U. S. 689

imposed thereby, and may be proceeded against summarily by way of libel in any district court of the United States having jurisdiction thereof."

The supervisor of the harbor, assuming to act under and by virtue of the statute, directed that the prohibited matter must not be deposited

"except to the south and east of a certain white spar buoy, known as the 'Mud Buoy,' which buoy is three miles south of Coney Island and located as follows: Stone Beacon light bearing west 3/4 south, distant 4 1/2 miles; West Brighton observatory bearing northwest by south 1/2 north, distant 3 1/2 miles; Sandy Hook lighthouse bearing southwest, distant 6 miles; Scotland lightship bearing south 1/2 west, distant 6 1/4 miles; Sandy Hook light bearing south southwest, distant 7 3/4 miles."

Certain ashes were dumped from the deck of the Bayonne into tidal waters, not to the south and east of the Mud buoy, but to the southward and westward thereof at or near the mouth of Gedney's Channel at a point more than three miles from Sandy Hook and more than three miles from Coney Island and the shore of Long Island. These ashes were dumped by the direction of the mate for the relief of the ship in the usual course of her navigation, the vessel being at the time about twenty minutes beyond Sandy Hook, contrary to the orders of the master, which were that ashes should not be put overboard until the ship was an hour at sea after the pilot left her, and this constituted the alleged use and employment of the vessel in violation of the act of Congress.

It was adjudged by the district court that by force of the statute and of the definition of the limits by the supervisor where the deposit of ashes must take place, the steamship became liable to a penalty of $250, for which sum, with costs, a final decree was entered in favor of the United States, December 21, 1892. On the 31st of December, the claimant filed the following prayer for appeal:

"The above-named claimant, John Edward Payne, considering himself aggrieved by the final decree entered in this cause on the 21st day of December, 1892, hereby appeals

Page 159 U. S. 690

from said decree to the United States supreme court upon the ground that this Court was without jurisdiction to make the said decree, and thereupon he prays that his said appeal may be allowed, and that a transcript of the record and proceedings and papers upon which said final decree was made may be sent up, duly authenticated, to the United States Supreme Court."

This was endorsed by the district judge "Appeal allowed."

On January 17, 1893, the following assignment of errors was filed as of December 31, 1892, by direction of the district judge that the same should be filed nunc pro tunc:

"The learned court below erred in taking jurisdiction of the cause and entering a decree against the steamship Bayonne in the following particulars:"

"First. Because the act in question creates no lien enforceable in rem except as against a boat or vessel used or employed in violating some provision of the act, whereas the Bayonne was not used or employed in violating any provision of the act."

"Second. Because the act does not create a lien enforceable against the Bayonne in rem to recover the penalties to which the person or persons who committed the offense complained of may have been subject under section one of the act."

"Third. Because, if the act does create a liability on the part of the Bayonne for the pecuniary penalty to which the person or persons who committed the offense may be subject under section one of the act, such penalty is not recoverable against the Bayonne in rem without a previous imposition of the fine upon the offender or offenders."

"Fourth. Because the limits within which the deposit of refuse matter was intended to be prohibited have never been drawn by the supervisor of the harbor in accordance with the requirements and specifications of the act, or in accordance with law, and therefore the deposit of ashes at the place they were deposited by a person or persons from the deck of the Bayonne did not constitute an offense for which the Bayonne can be held responsible under the provisions of the act. "

Page 159 U. S. 691

The appeal was duly prosecuted and the record filed in this Court February 20, 1893.

A motion to dismiss having been made, appellant served notice of a motion

"to remand this cause to the district court for the purpose of having annexed to the record a certificate distinctly certifying to this Court the jurisdictional questions involved in this appeal, or, in the alternative, for a writ of certiorari to have such certificate annexed to the transcript of record."

Annexed to this motion was a certificate by the district judge, filed November 8, 1895, which, after stating the case, continued as follows:

"I further certify that the questions of jurisdiction involved in the said appeal of the claimant are:"

"1. Whether the said steamship Bayonne, by reason of ashes' being dumped from her deck by the order of her mate, contrary to the directions of the captain, was 'used or employed in violating any provision of this act' within the meaning of the fourth section of said statute, so as to create a lien against the vessel enforceable by proceedings in rem to recover the penalty therein and thereby provided."

"2. The first section of the statute provides as follows: [Here followed § already quoted.]"

"A further question of jurisdiction involved in the claimant's appeal is whether the supervisor of the harbor, by simply prescribing that all refuse, dirt, ashes, and other prohibited matter must be deposited to the eastward and southward of the said Mud buoy, has prescribed the limits within which the deposit of ashes and other prohibited matter is strictly forbidden, as required by the above first section of the act, and if so whether the limits so prescribed are within the 'tidal waters of the harbor of New York, or its adjacent or tributary waters,' so as to make the deposit of the said ashes from the deck of said steamer, under the circumstances stated, and at the place specified, a violation of the statute, subjecting the steamer to the penalty therein provided."

This certificate was directed by the district judge, November 8, 1895, to be filed nunc pro tunc as of January 17, 1893.

Page 159 U. S. 692

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