THE CARRIE L. TYLER, 106 F. 426

SIMOXTQX, Circuit Judge (after stating the facts as above). The libel is against the barge in rem, yet the language of the statute imposes a penalty upon a, person; and that penalty would be incurred by any one presuming to act as pilot without a license, whether he be connected with the barge or be a stranger to her. Xor does the statute create a lien for this misconduct of the person assuming to act as pilot. This is clearly a penal statute, and must be construed strictly. U. S. v. Reese, U. S. 214, 28 L. Ed. 563.

In an action to recover a statutory penalty, a defendant cannot be subjected to the penalty unless the words of the statute plainly impose it. Tiffany v. Bank, 18 Wall. 409, 21 L. Ed. 862. The court, therefore, will not import into the statute language creating a lien on the vessel. Xor does a lien arise in this matter under maritime law. It is not a breach of a maritime contract. This term is limited to contracts, claims, and services purely maritime, and touching rights and duties appertaining to commerce and navigation. Ferry Co. v. Beers, 20 How. 393, 15 L. Ed. 961. But there is no element of a contract here.

Xor can it be classed among maritime torts. It cannot be called a tort. The recovery sought is for a penalty under a statute. Ohitty classes actions of this kind as in the class of contracts, debt on statute. 1 Chit. PL Xo. 112. A libel in rem cannot be sustained except upon a maritime contract or a maritime tort. But, in any event, this is no case for a proceeding in rem. Tn The Corsair, 145 U. S. 347, 12 Sup. Ct. 949, 86 L. Ed. 727, Mr. Justice Brown says: “A maritime lien is said by writers upon maritime law to be the foundation of every proceeding in rein in the admiralty.

In much of the larger class of cases the lien is given by the general admiralty law, but in other instances— such, for example, as insurance, pilotage, wharfage, and materials furnished in the home port of the vessel — the lien is given, if at all, by the local law. As we are to look, then, to the local law in this instance for the right to take cognizance of this class of cases, we are bound to inquire if the local law gives a lien upon the offending thing.

If it merely gives a right of action of a maritime nature, the district court may administer the law by proceedings in personam, as was done with a claim for half-pilotage dues under the law of New York in the ease of Ex parte McNiel, 13 Wall. 236, 20 L. Ed. 624, but, unless a lien be given by the local law, there is no lien to enforce by proceedings in rem in the court of admiralty.” The proceeding in this case is for a statutory penalty, which, by the terms of the statute, is imposed upon the individual. It is in rem. No lien is created in the statute. None arises under maritime law.

The libel cannot be maintained. The court below dismissed the libel. Its decree is affirmed.