The Tokai Maru

(after stating the facts as above).

*645 One of the chief contentions of the appellant is that the District Court could not rightfully subject the property seized to liability for the fines imposed upon the captain and crew, because the justice of the peace had no jurisdiction of the alleged offense. We hold, however, that the prosecution and conviction of the captain and members of the crew is not an essential prerequisite to the enforcement of the government’s right against the offending vessel (The C. G. White, 64 F. 579 , 12 C.C.A. 314 ), and we consider the present suit to be an original cause brought in a court of competent jurisdiction, and that it is not ancillary nor supplementary to the criminal proceedings before the justice of the peace. If a vessel should be captured in flagrante derelicto and her captain and crew should be successful in avoiding prosecution by evading arrest, the statutory lien would not be discharged by such evasion, and it would require an unreasonable construction of the statute to place the government in the embarrassing situation of a holder of a seized vessel without right to proceed to a realization of the benefit contemplated by the creation…

(dissenting).

I am unable to agree with so much of the judgment of the majority of this court as imposes a fine of $500 against the “ship’s company.” No such cause of action was alleged in either the original or amended libel, and no such cause of action has been claimed, or suggested in this court by either party to the action.

The Japanese sealing schooner Tokai Maru was found on June 28, 1910, in the waters of Alaska, near Kelekta Bay, Unalaska, by the officers of the United States revenue cutter Perry, with some 20 fish on board the schooner, some of which had been salted down. Fishing tackle was also found on board, such as lines, hooks, and sinkers, but no rods, spears, or- gaffs. One fish line was wet when found, indicating that it had been recently in use. The captain of the revenue cutter seized the schooner, and arrested the officers and crew, consisting of 38 men, all natives of the empire of Japan, for a violation of the act of June 14, 1906, entitled: “An act to prohibit aliens from fishing in the waters of Alaska.” Act June 14, 1906, c. 3299, 34 Stat. -263 ( 48 U.S.C.A. §§ 243-247 and note). The schooner, together with the officers and crew, were taken by the…