The Strathairly

The libel contains three counts. The first is for the recovery of $16,300 for an alleged violation of the provisions of sections 4252 and 4253 of the Revised Statutes. In this count it is alleged that the steam-ship Strathairly was a British vessel owned by citizens of Great Britain, and propelled in whole or in part by steam; that W. B. Fenwick, the master thereof, brought on said steamer, from Hong Kong, China, 326 steerage passengers in excess of the number fixed by law in proportion to the space or tonnage of said vessel; that by reason thereof, Fenwick, the master of said ship, became liable to a fine of $50 for each of said 326 passengers, amounting to $16,300, which amount, it is alleged, is made a lien by the laws of the United States on said vessel, her tackle, furniture, engines, and apparel. It is further alleged in the same count, that prior to the promoting of said libel a criminal information was filed in the district court of the United States for the district of California, charging Fenwick, the master, with the offense of unlawfully bringing from said port of Hong Kong into the port of San Francisco the said 326 passengers in excess of the number that he could lawfully bring on said vessel; that said Fen wick was duly arraigned on said information, and pleaded guilty to the offense of bringing on said vessel 223 steerage passengers in excess of the number than he could lawfully bring on the same; that thereupon said Fenwick was duly sentenced to pay a fine of $50 for each of said 223 passengers, amounting in all to the sum of $11,150. To this count, McIntyre, the claimant of the ship, filed a peremptory exception, on the ground that the facts stated were not sufficient to constitute, create, or give rise to a lien on said vessel under any law or statute of the United States. The second count of the libel is for the recovery of the sum of $5,280 for an alleged violation of the provisions of section 4255 of the Revised Statutes. In this count it is alleged that on April 17, 1882, at Hong Kong, China, there were taken on board of said steam-ship Strathairly 1,056 steerage passengers for transportation to the port of San Francisco, California; that said 1,056 steerage passengers were by said vessel transported to and landed at said port of San Francisco; that said vessel, at the time said steerage passengers were so transported From Hong Kong to San Francisco, did not have the number of berths required by law for the accommodation of said passengers, nor were said berths constructed in the manner required by law, by reason whereof the master of said ship, and the owners thereof, became liable to a penalty of $5 for each of said 1,056 passengers, amounting in all to $5,280, no part of which had been paid, and that the same constitutes a lien upon said vessel. To this count the claimant also excepted-First, because the facts stated therein were not sufficient to constitute, create, or give rise to a lien on said vessel under any law or statute of the United States; second, because the ship Strathairly, being at the time a vessel propelled in whole or in part by steam, neither the master nor owners thereof are subject or liable to the penalty provided for by section 4255 of the Revised Statutes, and that no lien does or can attach on said vessel under section 4270 of the Revised Statutes. The third count of the libel is for the recovery of the sum of $1,000 for the alleged violation of the provisions of section 4266 of the Revised Statutes, taken in connection with section 2774. In this count it is alleged that W. B. Fenwick, the master of said steam-ship, on April 17, 1882, took on board of said ship, at Hong Kong, China, 1,056 steerage passengers, and transported them in said ship to the port of San Francisco; that, on arriving at said last-named port, the said master neglected and refused to deliver to the collector of customs at said port of San Francisco a list of all the passengers taken on board of said vessel and brought in her to the port of San Francisco; also that said Fenwick knowingly and willfully made out and delivered to said collector of customs a false list* of said passengers, in which he reported that the whole number brought was 829, and no more, instead of 1,056, the number alleged to have been actually brought and landed, by reason of which said Fenwick became liable to a fine of $1,000, whick, it is alleged, is also a lien upon said vessel. To this count the claimant excepted, on the ground that the facts stated were not sufficient to constitute, create, or give rise to a lien on said vessel under any law or statute of the United States.

Asst. Atty. Gen. Maury, for appellant.

Milton Andros and ''Wm. W. Morrow'', for appellee.

[Argument of Counsel from pages 561-567 intentionally omitted]

Mr. Justice MATTHEWS, after stating the facts as above, delivered the opinion of the court.