Opinion
No. 13356.
April 16, 1934.
Anthony Savage, U.S. Atty., and Tom E. DeWolfe, Asst. U.S. Atty., both of Seattle, Wash., for libelant.
John F. Evich and Dykeman, Monheimer Griffin, all of Seattle, Wash., for Northwest Air Service, Inc., intervening libelant.
George Olson and W.M. Whitney, both of Seattle, Wash., for Frank Dorbandt, claimant.
Revelle, Simon Coles, of Seattle, Wash., for Max Herskovits, claimant.
In Admiralty. Libel by the United States of America against One Fairchild Seaplane, Number NC 142 H, Pratt and Whitney, Series C, Wasp Motor Number 1607, its engine, appurtenances, and tackle, claimed by Frank Dorbandt and another, in which the Northwest Air Service, Inc., filed an intervening libel.
Decree for libelant and intervening libelant.
The respondent seaplane, upon a libel by the United States has been found guilty of failing to give advance notice to the Collector of Customs of arrival in the United States from Canada; of failure to make a first landing in the United States at a lawfully designated airport of entry; of failure to make an immediate report of arrival to the United States Customs Service upon entering the United States from a contiguous foreign country and of the unlading of a passenger without a permit.
Penalties have been assessed for these violations of the law by the Treasury Department, on account of which the libelant asks that the respondent seaplane be subjected to a lien and be forfeited and sold.
While the unlawful acts described were done in July, 1932, there was no seizure by the officers of the Customs until September, 1932. Repairs, in the meantime, had been made to the seaplane by the intervening libelant.
It is alleged in the amended intervening libel:
"II. That the Northwest Air Service, Inc., owns and operates an airport located at Bryn Mawr, Washington, situated at the south end of Lake Washington, which said Lake is navigable waters of the United States of America. That the Bryn Mawr airport has landing facilities for planes intended to stop on or take off from water and has seaplane hangars situated at the water's edge and machine shops adjacent thereto; that the intervening libelant, Northwest Air Service, Inc., is engaged in the business of servicing and repairing seaplanes; that in addition to its machine shop at Bryn Mawr the Northwest Air Service, Inc., maintains a larger machine shop at the Municipal Airport at Boeing Field, Seattle, Washington.
"III. That the Fairchild seaplane libeled herein consists generally of three parts, first a cabin fuselage for pilot, freight and passengers, second an air cooled radial type Pratt and Whitney motor which propels the craft in the air or on the water, and third landing equipment consisting of two large pontoons which permit it to alight, float and be navigated upon water; that such seaplane is capable of being navigated indefinitely upon the water without arising therefrom, and when in operation in the air is intended to fly over or close to navigable waters; that a seaplane cannot be flown from or landed on the ground and when not in operation is moored to a wharf or hauled on shore.
"IV. That on or about the 26th day of July, 1932 the Fairchild seaplane libeled herein landed on the water at the south end of Lake Washington and was navigated under its own power to the slip of the Northwest Air Service, Inc., and by the Northwest Air Service, Inc., hauled from the waters of Lake Washington to the seaplane hangar of the Northwest Air Service, Inc., situated on the edge of Lake Washington.
"V. That on said date said seaplane needed certain repairs necessary for her safe and efficient operation and to comply with the regulations of the United States Department of Commerce regarding aircraft, and Frank Dorbrandt, the pilot and master in charge of said seaplane, requested the Northwest Air Service, Inc., to repair and service said seaplane for the purposes aforesaid; that to overhaul the motor it was necessary to detach it from the fuselage; that the Northwest Air Service, Inc., took the motor to its shop at Boeing Field, Seattle, Washington, to do certain work thereon, from which place it was to be returned to Bryn Mawr for installation in the seaplane.
"VI. That at the time the said repairs were ordered by said Dorbrandt and at the time of the furnishing of the labor and material, and at the completion thereof, the Northwest Air Service, Inc., had no knowledge or information that said seaplane, or any of its owners or operators, had violated any laws or rules pertaining to navigation in the operation of said plane, if in fact any rule or regulation had been violated; that said labor and material were furnished and supplied in good faith and upon the order of said master and pilot and in reliance upon the lien against the Fairchild seaplane created by law for said repairs.
"VII. That on the 26th day of July, 1932, the Fairchild seaplane libeled herein was valued at $7,500.00; that the cost of the necessary labor and material was $1,268.72, no part of which has been paid.
"VIII. That the repairs so furnished were necessary and the charge made therefor is reasonable and the same increased and enhanced the value of said plane in the amount claimed therein. * * *"
In addition to general denials of the foregoing allegations, the libelant, in its answer to the amended intervening libel, states:
"II. For answer to paragraph III of amended intervening libel of Northwest Air Service, Inc., libelant denies that said seaplane is capable of being navigated indefinitely on the water without arising therefrom and denies that when in operation in the air it is intended to fly close to navigable waters and denies that when a seaplane is not in operation, it is always moored to a wharf or on shore. That said seaplane has in Alaska runners or skis which are attached to said seaplane which then makes it capable of landing on or taking off from the snow. That when said runners or skis are attached to said seaplane it loses its identity as a seaplane as said runners or skis take the place of pontoons on said seaplane. Libelant alleges that said seaplane is not a vessel and that this Honorable Court is without jurisdiction to entertain the amended intervening libel herein for the reason that said seaplane is not and never has been a vessel and that the lien sought to be enforced by the intervening libelant is not a maritime lien, and this court is without admiralty or maritime jurisdiction to enforce said purported or alleged lien of intervening libelant."
The evidence upon the trial established the truth of the foregoing allegations of the amended intervening libel in so far as they are allegations of fact, with the exception of the alleged value of the seaplane.
The controlling contention of the intervening libelant, as understood by the court, is that if the intervening libelant has a maritime lien for repairs, the value thereof is to be preferred to the penalties assessed by the Treasury Department and the resulting lien. The St. Jago de Cuba, 9 Wheat. 409, 6 L. Ed. 122; The Thomaston (D.C.) 26 F.2d 279.
The court has already held, upon the exceptions to the amended intervening libel, that the court has jurisdiction to entertain such intervening libel, whether repairs such as those described would give a maritime lien or not. United States v. One Fairchild Seaplane et al. (D.C.) 4 F. Supp. 249. The question, therefore, is whether, at the time the repairs were made in 1932, the law gave a maritime lien.
The conclusion follows from the scope of the ruling made in Reinhardt v. Newport Flying Service Corporation et al., 232 N.Y. 115, 133 N.E. 371, 18 A.L.R. 1324 (opinion by Judge Cardozo), that at the time of the occurrence of the matters involved in that decision the law gave such a lien. That cause was decided in 1921.
Subsequently, in 1926, Congress, by section 7(a) of chapter 344, 44 Stat. 572 (title 49, USCA § 177(a), in part, provided:
"The navigation and shipping laws of the United States, including any definition of `vessel' or `vehicle' found therein and including the rules for the prevention of collisions, shall not be construed to apply to seaplanes or other aircraft or to the navigation of vessels in relation to seaplanes or other aircraft."
Libelant contends that because of the foregoing provision there could be no maritime lien upon a seaplane whether such right had theretofore existed or not.
On account of the conclusion reached it is not necessary to determine the definition of "vessel" or "vehicle," to which reference is made in the quoted provision, nor whether section 3 of the Revised Statutes (title 1 USCA § 3) is or is not a shipping law.
It may be assumed that section 30, subsection P, c. 250, 41 Stat. 1005 (title 46, USCA § 971), giving a maritime lien for repairs to a vessel, is, as ordinarily understood, a shipping law, yet, it does not necessarily follow that Congress intended by the quoted provision to deny a maritime lien in such a case as that here presented by such a general reference to "shipping laws" as that made in section 177(a), supra. There are many laws and parts of laws that are ordinarily referred to as shipping laws, as shown by the two volumes of the United States Code Annotated, upon the subject of "shipping." Title 46.
Under such circumstances, to arrive at the intent of Congress in the enactment of section 177(a) of title 49, supra, a resort to other rules of construction may furnish a safer guide to the intent of Congress than the full reach or scope of the naked words used. It is proper therefore to quote the statute more at length. In doing so the court emphasizes that portion of the statute already quoted and other included words bearing upon the intent of Congress:
"§ 176. Foreign Aircraft.
"(a) (*Sovereignty of airspace declared; navigation of foreign military aircraft.) The Congress hereby declares that the Government of the United States has, to the exclusion of all foreign nations, complete sovereignty of the airspace over the lands and waters of the United States, including the Canal Zone. Aircraft a part of the armed forces of any foreign nation shall not be navigated in the United States, including the Canal Zone, except in accordance with an authorization granted by the Secretary of State.
"(b) (*Navigation of foreign civil aircraft; authorization; applicability of regulations.) Foreign aircraft not a part of the armed forces of the foreign nation shall be navigated in the United States only if authorized as hereinafter in this section provided, and if so authorized, such aircraft and airmen serving in connection therewith, shall be subject to the requirements of section 173 of this chapter, unless exempt under subdivision (c) of this section.
"(c) (*Navigation of foreign civil aircraft; condition of authorization; exemption from regulations; engagement in air commerce.) If a foreign nation grants a similar privilege in respect of aircraft of the United States, and/or airmen serving in connection therewith, the Secretary of Commerce may authorize aircraft registered under the law of the foreign nation and not a part of the armed forces thereof to be navigated in the United States, and may by regulation exempt such aircraft, and/or airmen serving in connection therewith, from the requirements of section 173 of this chapter, other than the air traffic rules; but no foreign aircraft shall engage in interstate or intrastate air commerce. (May 20, 1926, c. 344, § 6, 44 Stat. 572.)
"§ 177. Application of Existing Laws Relating to Foreign Commerce.
"(a) (*Application of navigation and shipping laws to aircraft.) The navigation and shipping laws of the United States, including any definition of `vessel' or `vehicle' found therein and including the rules for the prevention of collisions, shall not be construed to apply to seaplanes or other aircraft or to the navigation of vessels in relation to seaplanes or other aircraft.
"(b) (*Designation of ports of entry; detail of officers; application of customs and public health laws.) The Secretary of the Treasury is authorized to (1) designate places in the United States as ports of entry for civil aircraft arriving in the United States from any place outside thereof and for merchandise carried on such aircraft, (2) detail to ports of entry for civil aircraft such officers and employees of the customs service as he may deem necessary, and to confer or impose upon any officer or employee of the United States stationed at any such port of entry (with the consent of the head of the Government department or other independent establishment under whose jurisdiction the officer or employee is serving) any of the powers, privileges, or duties conferred or imposed upon officers or employees of the customs service, and (3) by regulation to provide for the application to civil air navigation of the laws and regulations relating to the administration of the customs and public health laws to such extent and upon such conditions as he deems necessary.
"(c) (*Application of laws relating to entry and clearance of vessels.) The Secretary of Commerce is authorized by regulation to provide for the application to civil aircraft of the laws and regulations relating to the entry and clearance of vessels to such extent and upon such conditions as he deems necessary.
"(d) (*Designation of ports of entry for aliens; detail of officers; application of laws relating to immigration.) The Secretary of Labor is authorized to (1) designate any of the ports of entry for civil aircraft as ports of entry for aliens arriving by aircraft, (2) detail to such ports of entry such officers and employees of the immigration service as he may deem necessary, and to confer or impose upon any employee of the United States stationed at such port of entry (with the consent of the head of the Government department or other independent establishment under whose jurisdiction the officer or employee is serving) any of the powers, privileges, or duties conferred or imposed upon officers or employees of the immigration service, and (3) by regulation to provide for the application to civil air navigation of the laws and regulations relating to the administration of the immigration laws to such extent and upon such conditions as he deems necessary. (May 20, 1926, c. 344, § 7, 44 Stat. 572.)" (Italics by the court.) (The headings of the foregoing subsections which are included in parentheses and identified by a * are not used in the act but appear in the United States Code Annotated.)
Giving due weight to the subject-matter particularly under consideration in the enactment of the foregoing sections, that is, foreign aircraft and foreign commerce, and to the associated words of the statute, in accordance with the maxim "noscitur a sociis" as well as the ejusdem generis rule of statutory construction — for in the statute, section 177(a), the general words "shipping laws" follow the particular words of section 177 "foreign commerce," and as the statute giving the maritime lien for repairs (title 46, USCA § 971) is not restricted to foreign commerce or foreign watercraft, it follows that section 177(a) of title 49, USCA, does not deny a maritime lien to one who repairs a seaplane under the circumstances here shown. Reinhardt v. Newport Flying Service Corp., 232 N.Y. 115, 133 N.E. 371, 18 A.L.R. 1324.
Decree will be for the forfeiture and sale of the respondent seaplane as prayed in the libel and amended intervening libel. The intervening libelant will be decreed a preference upon distribution, of the amount claimed for the repairs made.
Any findings, conclusions, and decree will be settled upon notice.
The clerk will notify the parties of this decision.