THE TOKAI MARU, 3 Alaska Fed. 641

HANFORD, District Judge (after stating the facts as above). 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 of the lien.

It is to be observed that the judgment of the justice of the peace is not pleaded as a separate and distinct cause of action, the liability of the vessel, as a guilty thing for a fine and her liability under the lien clause of the statute are run together in the amended libel of information and the judgment is just thrown in as a makeweight; and as the answer contains no affirmative plea of payment, or satisfaction of the judgment, there is no issue raised by the pleadings respecting the criminal proceedings which is necessarily material to be considered. The case is here for a trial de novo.

This court may direct the entry of a proper decree notwithstanding errors of the trial court in receiving incompetent evidence, or in its findings based thereon. Deeming it unnecessary to decide the question involved in the collateral attack here made upon the judgment of the justice of the peace, all of the pleadings and evidence referring to that judgment will be treated in this opinion as surplusage and eliminated from the case.

The libel of information, after eliminating therefrom all of paragraphs 7 and 8, contains averments of all the jurisdictional facts necessary to sustain an original independent suit by the government to enforce the statute by collecting a fine and foreclosing a lien against the vessel and her equipments, and specifically charges violations of the statute for which the prescribed fine and lien attach to the vessel.

These averments and charges are sustained, by admissions and by uncontradicted evidence proving that the captain and crew are aliens, and not inhabitants of Alaska ; that the vessel was seized by a revenue cutter of the United States while at anchor within Kalekta Bay, Alaska, less than three miles from the shore; that there was then found on board of her shoal water fish recently caught, some of them had been recently salted and others were alive, and fishing lines with sinkers and baited hooks recently used, and there was no fishing rod, spear, or gaff on board.

These facts in connection with failure to prove that the fish found on the vessel were obtained elsewhere, independently of the statutory presumption, afford convincing evidence that the fish were taken from the waters of Alaska within the jurisdiction of the United States. It is contended, however, that only a few fish were found in the vessel, that the vessel was on a sealing cruise, and not engaged in commercial fishing, and that the statute should not be construed as prohibiting fishing by aliens to supply their personal need for food. This ground of defense cannot prevail.

The statute is clear and unambiguous. It prohibits aliens from taking any fish in the waters of Alaska “except with rod, spear, or gaff,” and the court is not authorized to add other exceptions. It is not probable that all of the persons composing the crew personally participated in the unlawful fishing, and there is some evidence to the contrary, and no evidence to single out one or more of the crew as individual offenders. Therefore this court holds that there is a failure of proof necessary to justify the imposition of a fine against either as an individual person.

The captain and his crew, however, were an aggregation of persons constituting the ship’s company, engaged in an adventure for their common benefit.

The law prescribes: “That every person, company, corporation, or association found guilty of a violation of any provision of this act * * * shall, for each offense, be fined not less than $100, nor more than $500. * * * ” This court holds that, whilst the evidence is insufficient to justify separate punishment of individual members of the crew, the law authorizes the imposition of a single fine against the ship’s company in addition to the fine imposed against the vessel as a distinct entity, and, in view of all the circumstances alleged and proved, it is our opinion that fines for the aggregate amount of $1,000, in addition to the large amount of taxable costs, will be reasonable and amply sufficient to vindicate the law in this instance.

The 117 sealskins found on board the vessel were not used in any way in violation of law, and there is no distinct admission in the pleadings, nor satisfactory evidence proving, that they were owned by either or all of the persons engaged in taking fish unlawfully. Therefore there appears to be no legal ground for holding them subject to a lien for the fines.

The appellant objects to the taxation of costs, including the expenses of keeping the property in custody, but without showing any legal ground for exemption from the general rule subjecting defeated litigants to liability for costs and necessary expenses incidental to the litigation; and the court has no authority to relieve him therefrom.

The remaining defensive argument is that: “By the first and second articles of the treaty between Japan and the United States, concluded November 24, 1894, proclaimed March, 1895 (29 Stat. 848), the officers and crew of this schooner are given the same rights in Alaskan waters, with reference to fishing, as are given to our own citizens. [And] that statutes which discriminate against aliens, in violation of their treaty rights, are void. In re Ah Chong [C.C.] 2 F. 733; In re Tiburcio Parrott [C.C.] 1 F. 481; Yick Wo v.

Hopkins, 118 U.S. 356 [6 S.Ct. 1064] (30 L.Ed. 220).” The authorities here cited do no more than affirm the fundamental principle that state laws and municipal ordinances may not override national treaties; and they give no sanction to an argument questioning the validity of a national law. The power of Congress to enact laws for subsequent observance is not restricted by prior treaties with foreign nations. The Chinese Exclusion Case, 130 U.S. 581, 9 S.Ct. 623, 32 L.Ed. 1068.

Moreover, the articles of the treaty referred to contain no allusion to fishing privileges, and do not purport to grant any right to sea rovers to resort to American fishing grounds for the purpose of taking fish for their own consumption or for any purpose whatever.

The decision of the District Court is reversed, and the cause will be remanded, with directions to vacate the decree appealed from, to release the fur sealskins, and to enter a new decree for a fine of $500 against the vessel, a fine of $500 against her captain and crew as a company and for costs, and to enforce such decree by appropriate proceedings.