Page:Federal Reporter, 1st Series, Volume 3.djvu/581

 67e FEDERAL REPORTER. �Choate, D. J. This libellant has filed his libel in admi- ralty against the steam-boat Sea Bird to recover penalties alleged to have been incurred under Eev. St, § 4465, whicb provides that "it shall not be lawful to take on board of any steamer a greater number of passengers than is stated in the certificate of inspection, and for every violation of this provis- ion the master or owner shall be liable to any person suing for the same to forfeit theamount of passage moneyand $10 for each passenger beyond the number allowed." Section 4469 provides that the penalty imposedby section 4465 "shaU be a lien upon the vessel in each case, but a bond may, as provided in other cases, be given to secure the satisfaction of the judgment." The libellant sues to recover for an alleged excess of 371 passengers taken on board at the City of New York, on the eleventh of July, bound to Highlands, in the state of New Jersey, and also for an alleged excess of 237 passen- gers on the same day, on a trip from Sandy Hook to Bay Eidge, in the state of New York. �1. The first ground of exception urged is that the suit should be in the name of the United States, and that it should be commenced and prosecuted by the district attorney. No authority is cited which sustains this exception. The statute does not give the penalty to the United States, and therefore I see no occasion for making the United States a party. It is argued that the secretary of the treasury has power to remit the penalty. If this is so, the remission will bave its proper and legitimate effect, and if made after answer, and before trial, may be set up by way of defence by sup- plemental answer. Without examining the question of the power of the secretary to remit it, such power, if it exists, would not make the United States a party in interest, and the rule in admiralty is that the party in interest should sue. �2. Exception is also taken that the statute does not give a remedy by a libel in admiralty against the vessel, but only a peraonal action against the owner or master, with a power in the court to enforce any judgment recovered in such action against the vessel. The language of the statute is that the penalty shall be a lien on the vessel, and I do not think the ����