MILLER, Circuit Justice.
This is an appeal from a decree of the district court for [141]*141the eastern district, dismissing the libel of the United States against the steamboat “Bright Star.” The “Bright Star” is licensed by the proper authorities of the state of Missouri, to run as a ferry-boat in the interior of the state, between the town of Washington, on the Missouri river, and the opposite bank of that river. She is charged, in various counts of this information, with carrying passengers and merchandise to towns on the opposite side of the river, both above and below Washington; and this fact is admitted by stipulation filed in the case. This suit is instituted upon the theory that she is subject to the various acts of congress requiring vessels, impelled in whole or in part by steam, to undergo periodical inspection, and to obtain a coasting license, with which provisions it is adm’tted that she had not complied.
The defences set up are: First, that the vessel is a ferry-boat, and for that reason is not included within the scope of these laws; second, that the acts of congress do not apply to vessels engaged exclusively in the internal commerce of the state; and third, that if they were intended to apply to this class of vessels, the acts are to that extent unconstitutional.
The first ground of defence cannot be sustained for two reasons: First. The boat was used, in the cases mentioned in the libel, outside her ferry limits, making many voyages between towns so distant as to forbid the idea that she was exclusively engaged in ferrying. Second. While it is true that by section 42 of the act of August SO, 1852, ferryboats are excluded from its provisions, the 4th section of the act of June 8, 1864, declares that the provisions of the act of 1852, which require the inspection of hulls and boilers, shall apply to all ferry-boats which may be engaged in commerce with foreign nations, or among the several states. It is not, therefore, a sufficient defence in this ease to say, that the vessel is a ferry-boat, and no more.
In order to determine what was the intention of congress in requiring this class of vessels to submit their hulls and boilers to inspection, it is not necessary to go further back than the act of June 8, 1864. The provision contained in the section already cited, including, as it does, ferry-boats, tugs, towboats, and canal boats, propelled by steam, was evidently intended to cover all vessels of those classes to which the constitutional powers of congress extended; namely, all such as are engaged in commerce with foreign nations or among the states. The omission to mention commerce with the Indian tribes may be attributed to the fact that there is no such commerce carried on by steam vessels. But there is commerce within the several states wholly internal to each, largely carried on by steamboats, and vessels exclusively engaged therein are carefully guarded from the operation of the act by its ¡ very terms. Gilman v. Philadelphia, 3 Wall. [70 U. S.] 713. It is claimed, however, that this qualification of the act of June, 1864, is removed by the subsequent act of July 25, 1866. The two sections of the act last mentioned which are relied on to sustain this view are the 7th and 9th. The first of these enacts, that steamers used as freight boats shall be subject to the same inspection and requirements as, by the act of 1864, are provided for ferry, tug, and canal boats. From this language we can draw no inference that it was intended to include freight boats not engaged in commerce with foreign nations or among the different states. The intention was merely to extend to other boats the provisions which had, by the act of 1852, been limited to passenger boats.
Section 9 reads as follows: “That all vessels navigating the bays, inlets, rivers, harbors, and other waters of the United States, except vessels subject to the jurisdiction of a foreign power, and engaged in foreign trade, and not owned in whole or in part by a citizen of the United States, shall be subject to the navigation laws of the United States; and all vessels propelled in whole or in part by steam, and navigating as aforesaid, shall also be subject to all rules and regulations consistent therewith, established for the government of steam vessels in passing, as provided in the 29th section of an act relating to steam vessels, approved the 30th day of August, 1852. And every sea-going steam vessel now subject or hereby made subject to the navigation laws of the United States, and to the rules and regulations aforesaid, shall, when under way,. except upon the high seas, be under the control and direction of pilots licensed by the inspectors of steam vessels: vessels of other countries and public vessels of the United States only excepted.”
There are in this section three distinct purposes declared by congress in regard to three distinct subjects. Taking them inversely, the last clause refers alone to sea-going vessels, and enacts that when under weigh, except, on the high seas, they must be “under the control of pilots licensed by the inspector of steam vessels.” The object of this was, no doubt, to meet the decision of the supreme court of the United States, which had ruled in Pacific Mail Steamship Co. v. Joliffe, 2 Wall. [69 U. S.] 450, that pilots in the harbor of San Francisco had a right to navigate sea-going vessels, although not licensed by the inspector of steam vessels; and to make it plain that all harbor pilots must be so licensed.
The next clause subjects all vessels propelled by steam, while navigating any of the waters of the United States, to the rules of vessels passing each other established under the 29th section of the act of 1852. Whether this clause was intended to include vessels not engaged in commerce with foreign nations or among the different states, [142]*142tt is not necessary to inquire, as there is no charge in the libel of any violation of these rules. It is ably contended by the district attorney, that congress has the right, in order to protect sea-going vessels, to impose upon vessels not engaged in commerce with foreign nations or between different states, such rules as may be necessary for the safety and security of such vessels, and of the persons and property thereon; and that the provision here mentioned was designed to apply to all vessels- passing each other in the navigable waters of the United States. We are not prepared to say that this is not a sound view of the provision; nor do we decide that it is. It does not immediately • concern the case.
The other provision of this section applies to all vessels navigating the waters of the United States, whether they are propelled by sails or steam; and is intended to furnish a rule, by which it may be known whether they are to be treated as foreign vessels or as American vessels. That rule is, that vessels, subject to the jurisdiction of a foreign power, and engaged in a foreign trade, and not owned in whole or in part by citizens of the United States, are not American vessels, and are not subject to our navigation laws; and that all other vessels, however propelled, found navigating our waters, are to be subject to those laws. Does the clause mean anything more than this? What is meant by our navigation laws? If it means all the laws enacted for the protection of the lives of passengers, why were the two subsequent clauses used? For they apply only two of the provisions of the act of 1852 to two classes of vessels navigating the waters of the United States, when the first clause says that all American vessels shall be subject to the navigation laws of the United States.
Free access — add to your briefcase to read the full text and ask questions with AI
MILLER, Circuit Justice.
This is an appeal from a decree of the district court for [141]*141the eastern district, dismissing the libel of the United States against the steamboat “Bright Star.” The “Bright Star” is licensed by the proper authorities of the state of Missouri, to run as a ferry-boat in the interior of the state, between the town of Washington, on the Missouri river, and the opposite bank of that river. She is charged, in various counts of this information, with carrying passengers and merchandise to towns on the opposite side of the river, both above and below Washington; and this fact is admitted by stipulation filed in the case. This suit is instituted upon the theory that she is subject to the various acts of congress requiring vessels, impelled in whole or in part by steam, to undergo periodical inspection, and to obtain a coasting license, with which provisions it is adm’tted that she had not complied.
The defences set up are: First, that the vessel is a ferry-boat, and for that reason is not included within the scope of these laws; second, that the acts of congress do not apply to vessels engaged exclusively in the internal commerce of the state; and third, that if they were intended to apply to this class of vessels, the acts are to that extent unconstitutional.
The first ground of defence cannot be sustained for two reasons: First. The boat was used, in the cases mentioned in the libel, outside her ferry limits, making many voyages between towns so distant as to forbid the idea that she was exclusively engaged in ferrying. Second. While it is true that by section 42 of the act of August SO, 1852, ferryboats are excluded from its provisions, the 4th section of the act of June 8, 1864, declares that the provisions of the act of 1852, which require the inspection of hulls and boilers, shall apply to all ferry-boats which may be engaged in commerce with foreign nations, or among the several states. It is not, therefore, a sufficient defence in this ease to say, that the vessel is a ferry-boat, and no more.
In order to determine what was the intention of congress in requiring this class of vessels to submit their hulls and boilers to inspection, it is not necessary to go further back than the act of June 8, 1864. The provision contained in the section already cited, including, as it does, ferry-boats, tugs, towboats, and canal boats, propelled by steam, was evidently intended to cover all vessels of those classes to which the constitutional powers of congress extended; namely, all such as are engaged in commerce with foreign nations or among the states. The omission to mention commerce with the Indian tribes may be attributed to the fact that there is no such commerce carried on by steam vessels. But there is commerce within the several states wholly internal to each, largely carried on by steamboats, and vessels exclusively engaged therein are carefully guarded from the operation of the act by its ¡ very terms. Gilman v. Philadelphia, 3 Wall. [70 U. S.] 713. It is claimed, however, that this qualification of the act of June, 1864, is removed by the subsequent act of July 25, 1866. The two sections of the act last mentioned which are relied on to sustain this view are the 7th and 9th. The first of these enacts, that steamers used as freight boats shall be subject to the same inspection and requirements as, by the act of 1864, are provided for ferry, tug, and canal boats. From this language we can draw no inference that it was intended to include freight boats not engaged in commerce with foreign nations or among the different states. The intention was merely to extend to other boats the provisions which had, by the act of 1852, been limited to passenger boats.
Section 9 reads as follows: “That all vessels navigating the bays, inlets, rivers, harbors, and other waters of the United States, except vessels subject to the jurisdiction of a foreign power, and engaged in foreign trade, and not owned in whole or in part by a citizen of the United States, shall be subject to the navigation laws of the United States; and all vessels propelled in whole or in part by steam, and navigating as aforesaid, shall also be subject to all rules and regulations consistent therewith, established for the government of steam vessels in passing, as provided in the 29th section of an act relating to steam vessels, approved the 30th day of August, 1852. And every sea-going steam vessel now subject or hereby made subject to the navigation laws of the United States, and to the rules and regulations aforesaid, shall, when under way,. except upon the high seas, be under the control and direction of pilots licensed by the inspectors of steam vessels: vessels of other countries and public vessels of the United States only excepted.”
There are in this section three distinct purposes declared by congress in regard to three distinct subjects. Taking them inversely, the last clause refers alone to sea-going vessels, and enacts that when under weigh, except, on the high seas, they must be “under the control of pilots licensed by the inspector of steam vessels.” The object of this was, no doubt, to meet the decision of the supreme court of the United States, which had ruled in Pacific Mail Steamship Co. v. Joliffe, 2 Wall. [69 U. S.] 450, that pilots in the harbor of San Francisco had a right to navigate sea-going vessels, although not licensed by the inspector of steam vessels; and to make it plain that all harbor pilots must be so licensed.
The next clause subjects all vessels propelled by steam, while navigating any of the waters of the United States, to the rules of vessels passing each other established under the 29th section of the act of 1852. Whether this clause was intended to include vessels not engaged in commerce with foreign nations or among the different states, [142]*142tt is not necessary to inquire, as there is no charge in the libel of any violation of these rules. It is ably contended by the district attorney, that congress has the right, in order to protect sea-going vessels, to impose upon vessels not engaged in commerce with foreign nations or between different states, such rules as may be necessary for the safety and security of such vessels, and of the persons and property thereon; and that the provision here mentioned was designed to apply to all vessels- passing each other in the navigable waters of the United States. We are not prepared to say that this is not a sound view of the provision; nor do we decide that it is. It does not immediately • concern the case.
The other provision of this section applies to all vessels navigating the waters of the United States, whether they are propelled by sails or steam; and is intended to furnish a rule, by which it may be known whether they are to be treated as foreign vessels or as American vessels. That rule is, that vessels, subject to the jurisdiction of a foreign power, and engaged in a foreign trade, and not owned in whole or in part by citizens of the United States, are not American vessels, and are not subject to our navigation laws; and that all other vessels, however propelled, found navigating our waters, are to be subject to those laws. Does the clause mean anything more than this? What is meant by our navigation laws? If it means all the laws enacted for the protection of the lives of passengers, why were the two subsequent clauses used? For they apply only two of the provisions of the act of 1852 to two classes of vessels navigating the waters of the United States, when the first clause says that all American vessels shall be subject to the navigation laws of the United States.
These and other questions may not be very easily answered, and are not necessary to be answered in this case. It is sufficient to say that we do not think this clause, or any other clause in this act, was intended to extend the requirements of the act of 1852, concerning the inspection of hulls and boilers, to vessels engaged in commerce wholly within the state.
The policy disclosed so clearly by the act of 18G4, to confine this class of legislation by congress to vessels engaged in a commerce within the power of congress to regulate, can hardly be supposed to be reversed by the language of this section when the main purposes intended to be secured do not require it. We are also thoroughly impressed with the conviction that there is a commerce strictly internal to each state, over which congress has no control, though it may be carried on by means of the navigable rivers of the United States; and that congress has, in its legislation, steadily kept this in view.
Speaking of the terms of the commercial clause in Gibbons v. Ogden, 9 Wheat. [22 U. S.] 1, Chief Justice Marshall says: “It is not intended to say that these words comprehend that commerce which is completely internal, which is -carried on between man and man in a state, or between different parts of the same state, and which does not extend to or affect other states. Such a power would be inconvenient, and is certainly unnecessary. Comprehensive as the word ‘among’ is, it may very properly be restricted to that commerce which concerns more states than one. The phrase is not one which would probably have been selected to indicate the completely interior traffic of a state, because it is not an apt phrase for that purpose; and the enumeration of the particular classes of commerce to which the power was to be extended would not have been made had the intention been to extend the power to every description.
It has been strongly urged that the admiralty jurisdiction in the federal courts extends to all the navigable wáters of the United States, though the voyage may be limited to the ports of the same state; and that a corresponding rule should be applied to the power of congress over the commerce so carried on. But if we concede that the proposition is true as to admiralty jurisdiction, a concession [which must be]3 made in the face of many decided cases, the inference claimed by no means follows. By the federal constitution, admiralty jurisdiction is granted to the courts of the United States; the power to regulate commerce is granted to congress. The grant of admiralty power is limited expressly to certain kinds of commerce. On this subject, we agree entirely with Chief Justice Chase, in his opinion in the case of The Mary Washington in the Maryland circuit [Case No. 9,229].
Since the appeal was taken in this case, a statement of agreed facts has been filed as further testimony, by which the prosecution claims that it is admitted that the “Bright Star” was engaged in commerce between the states. The substance of this statement is, that besides carrying passengers from Washington to Pinkney and to Augusta, she also, at the several times mentioned, carried merchandise of various kinds, which had been purchased in New Orleans and other cities not in the state of Missouri, and had been transported by . the usual routes of commerce to St. Louis, thence to Washington, and by the “Bright Star” from Washington to Pinkney and Augusta. It is not stated whether this was done as one continuous voyage or not. It is consistent with the stipulation, that the goods terminated one voyage at St. Louis, and were pm-chased there by some one residing at Pinkney or Augusta, to whom they were forwarded from that city. It is however expressly stated that the “Bright Star” was not running in [143]*143connection with any line of steamboats or railroad cars. We do not think these facts prove the boat to have been engaged in commerce . among the states. Nor would we change our views if it were conceded that the merchandise came from New Orleans to Pinkney or Augusta in one continuous voyage. The only relation which the boat has, under such circumstances, to any commerce, is transportation. Her part in this transportation is too limited, casual, and uncertain, to call it an engagement in commerce among the states. The owner of this small vessel had a right to transport a few boxes of goods from one little town to another, as occasionally became necessary, without inquiring whether the goods came from beyond St Louis, or how they came to Washington. It constituted no part of any line of interstate communication. It ran in connection with no such line of travel or transportation. To hold under such circumstances, that it was engaged in commerce between the states, is to include all transportation of goods within that commerce.
The decree of the district court must be affirmed.