United States v. Atlantic Fruit Co.

206 F. 440, 124 C.C.A. 322, 1913 U.S. App. LEXIS 1563

• Court: Court of Appeals for the Second Circuit
• Decided: June 18, 1913
• Docket: No. 230
• Status: Published

Opinions

NOYES, Circuit judge

(after stating the facts as above). The real question in this case is whether a civil action can be maintained for the recovery of the fines prescribed by this statute. It is not material whether a criminal prosecution could also be instituted. A civil remedy may exist without being exclusive.

There are two lines of authorities leading up to this question. One line holds that while the word “fine” ordinarily implies a criminal proceeding it may when the amount is fixed and definite be treated as an equivalent of the word “penalty” and afford the basis for a civil action. Another line supports the proposition that when a statute imposes a penalty indefinite in amount a civil suit may be brought for its recover}". But we are referred to no authority which goes quite to the question here and holds that a fine which is uncertain in amount may be sued for civilly.

But we think there is nothing in principle which prevents the step further. The word “fine” is not treated as the equivalent of the word “'penalty” because the latter implies definiteness or certainty but because the courts find in particular cases that no distinction should be drawn between the words as describing a statutory pecuniary liability, ho while there may he a doubt whether an action of debt will lie for the recovery of a penalty uncertain in amount there can be no question that a civil action of some kind will lie. And as it is unnecessary for this case to classify civil actions we are not required to determine whether the particular one should be regarded as founded in contract or. in tort.

We think it altogether the better view that the word “fine” may in some cases properly be treated as the equivalent of the word “penalty” whether the amount be certain or uncertain and that a civil action may be brought for the recovery. No reason is apparent why the government should always be compelled in such cases to resort to the com-' paratively harsh course of a criminal proceeding when the milder process .of a civil suit may be adequate for the protection of all rights. The different degrees and methods of proof may in some cases require an interpretation that the criminal procedure is imperative, but it is our opinion that, such interpretation is not always necessary and that the present case should be determined upon the particular provisions of the statute.

The act in question provides that steamship companies and other owners of vessels failing to comply with 'its provisions shall “pay a fine of hot exceeding five hundred dollars to be recovered in the proper United States court and that said fine shall also be a lien upon any vessel of said company or owners found within the United States.” It will be observed that the failure to obey the act is not described as an offense, or misdemeanor. No reference is made to any criminal procedure. The statute does not even go so far as to provide that a violation shall be “punished” by a fine. It states that the fine shall be “recovered” — a term applicable rather to a civil than to a criminal action. The government does not recover fines in criminal proceedings. It procures their infliction as punishment. Moreover the provision that the fine shall constitute a lien on the vessel seems indicative of an intention to make the fine a civil rather than a criminal judgment. Upon the whole,, we think that, in the absence of a specific statutory remedy, a civil- action may properly be brought for the failure to comply with the provisions of the statute. Whether a criminal proceeding may also be instituted need not now be determined.

There is error and the judgment of the District Court is reversed.