MOORE v. PURSE SEINE NET (1940)

In a statutory proceeding, a large purse seine net was adjudged forfeited to the Fish and Game Commission of the State of California because of a use which the court found was unlawful. The appellants were the owners of the net at the time it was seized.

The facts are undisputed, and the only question for decision is whether the court had jurisdiction to entertain the proceeding. The appellants do not challenge the state's power to regulate fishing in its territorial waters, to close certain waters to fishing with nets, and to provide by law for the forfeiture of nets used in violation of its regulations. But they contend that as the present proceeding is one in rem against a thing maritime seized in navigable waters, the federal courts have exclusive jurisdiction.

When seized the net was being used by the purse seine fishing boat ‘Reliance’, on which it belonged in fishing operations. It is conceded that the boat was then within waters in which the taking of fish by net was unlawful.

The Fish and Game Commission filed its petition in the superior Court reciting these facts and asking for a judgment declaring the net to be a public nuisance, forfeiting it, and ordering its destruction or sale. Upon the filing of this petition, the court ordered public notice of the time and place of its hearing to be given. On the day fixed, the appellants appeared and filed their claim as owners of the net. The judgment of forfeiture followed.

The principal contention of the appellants is that as the thing seized was part and parcel of a ship, the superior court has exercised admiralty jurisdiction in a proceeding in rem brought to accomplish a maritime forfeiture of a maritime object in accordance with the conventional procedure of courts of admiralty. This, they say, constitutes an invasion of the exclusive province of the United States courts upon whom admiralty jurisdiction is conferred by the Constitution of the United States and the acts of congress. In support of the judgment, the respondent insists that as the state may validly legislate to protect fish and game, its courts may enforce the penalties of a statute enacted for that purpose.

In any maritime case there are two fields in which conflict may occur between the laws and judicial proceedings of a state and those of the United States. The first is in the field of substantive law. A state may not constitutionally adopt and enforce laws which materially interfere with the harmony and uniformity of the maritime law in its international and interstate relations, or which contravene a paramount act of congress. This is not a conflict of jurisdiction and the question concerns only substantive law.

But conflict may occur in another field. As admiralty jurisdiction is vested exclusively in the courts of the United States, no state court may conduct proceedings according to the course of admiralty or administer admiralty remedies. Its proceedings are limited to those cognizable at common law.

In this case the appellants do not claim that there is any conflict between the substantive provisions of the California Fish and Game Code, St.1933, p. 394, under which the proceeding was brought, and maritime law. But lack of conflict in this regard is not determinative of the case, for jurisdiction in admiralty depends upon maritime subject-matter and not upon the source or character of the substantive law which is being administered. If the property proceeded against is a thing maritime and the place of seizure is on navigable waters, the cause is clearly within the maritime jurisdiction, and it is immaterial whether the substantive law which authorizes the forfeiture is a law of the United States or of a state.

Admittedly the net in this case was seized upon navigable waters. The vessel from which it was taken was engaged in fishing, and the net was a part of her equipment. If it was necessary to the ship's enterprise and indispensable for the accomplishments of the objects of the particular voyage, it was, in legal contemplation, a part of the vessel, although it was not required for navigation. Turner v. United States, 2 Cir., 27 F.2d 134; The Buffalo, D.C., 148 F. 331; The Edwin Post, D.C., 11 F. 602; The Witch Queen, 30 Fed.Cas. page 396, No. 17,916.

The true criterion by which to determine whether any vessel or its appurtenances is subject to admiralty is the business or employment for which it is intended, or may be used, or in which it is actually engaged, rather than its size, form, capacity or means of propulsion. ‘If the business or employment of vessels appertain to travel, or trade and commerce on public navigable water, it is sufficient, and the jurisdiction attaches.’ The General Cass, 10 Fed.Cas. pages 169, 170, No. 5,307; The E. M. McChesney, 8 Fed.Cas. page 668, No. 4,463; The Alabama, C.C., 22 F. 449; The City of Pittsburgh, D.C., 45 F. 699; The Public Bath No. 13, D.C., 61 F. 692; Benedict, ‘On Admiralty’, 5th ed. vol. 1, p. 2.

A fishing vessel leaves the mainland with her hatches empty and navigates to a place where the fish are abundant. She is then maneuvered so that the net encircles a school of fish. The fish are drawn aboard and transported back to land. This transportation is as essential a part of the fishing business as is the pursing and hauling in of the net and is certainly an activity in aid of trade and commerce. It is an essential step in getting the fish to market. Hence, at the time the net here in controversy was seized, it was a part of the appurtenances of the ‘Reliance’, or, to use the phraseology of the American admiralty, a part of her ‘tackle, apparel and furniture’. In legal contemplation it was a part of the vessel itself, just as were her engines, her stores and her navigation equipment, and a subject of admiralty jurisdiction.

However, a further question must be answered. Is this proceeding one which may be prosecuted in a state court?

Although by the Constitution of the United States, the jurisdiction of admiralty causes is vested in the federal courts (arts. III, sec. 2), by statute there is saved to suitors ‘the right of a common-law remedy where the common law is competent to give it’. 28 U.S.C.A. § 371. But a decree in rem is not a remedy which the common law is competent to give; it is authorized only by the civil law. The Constitution ‘only saves to suitors ‘the right of a common-law remedy, where the common law is competent to give it.’ It is not a remedy in the common-law courts which is saved, but a common-law remedy. A proceeding in rem, as used in the admiralty courts, is not a remedy afforded by the common law; it is a proceeding under the civil law. When used in the common-law courts, it is given by statute.' The Moses Taylor, 4 Wall. 411, 71 U.S. 411, 431, 18 L.Ed. 397.

This rule was followed and applied in California as early as 1871. Crawford v. The Bark Caroline Reed, 42 Cal. 469. Later in Fischer v. Carey, 173 Cal. 185, 159 P. 577, L.R.A.1917A, 1100, jurisdiction of an action for partition of a vessel was disclaimed, although it was one in equity against a personal defendant. The court pointed out that although the action was personal in form, in substance it was a suit in rem, and any decree of the court would act directly upon the vessel by taking it into the custody of the court, through a receiver and ordering a sale. This was held to be an invasion of the exclusive jurisdiction of the courts of admiralty. To the same effect is the case of The Glide, 167 U.S. 606, 17 S.Ct. 930, 42 L.Ed. 296, where the court decided that although a state may enact a law providing for a lien against a ship, it may only be enforced in a federal court of admiralty. And in a more recent consideration of the rule as it applies to facts substantially identical with those now before the court, the conclusion was reached that a state court has no jurisdiction in a proceeding brought for the forfeiture of a fishing boat for violation of a state law. In that case the facts showed that the boat was seized upon the charge of fishing without a license. The director of fisheries of the state of Washington filed a petition in the superior court of that state praying for the confiscation and forfeiture of her engines, tackle, apparel, furniture, equipment, and seine net. The state court was denied jurisdiction. The Bessie Mac, D.C., 21 F.Supp. 220.

The respondent relies on Smith v. Maryland, 18 How. 71, 15 L.Ed. 269, where, it is true, the court held that a state law did not conflict with the jurisdiction of admiralty. But this case has been overruled by the later decisions which are directly to the contrary. It was pointed out in The Glide case, supra, that the question whether a claim of a maritime nature could be enforced in the state courts by process in rem under a state statute creating a right in the thing itself was not brought to the court directly until the cases of The Moses Taylor, supra, and The Hine v. Trevor, 4 Wall. 555, 71 U.S. 555, 571, 18 L.Ed. 451. In the first, it was determined that a suit against the vessel or thing is a proceeding in rem and is not a remedy afforded by the common law, hence, the admiralty court had exclusive jurisdiction. Later in the same term, the court in The Hine v. Trevor, supra, decided that as the vessel was sued in a state court for a tort arising from a collision, the judgment should be reversed and remanded with directions to dismiss for want of jurisdiction. The remedy pursued, said the court partook of all the essential features of an admiralty proceeding in rem which is in no sense a common-law remedy so as to come within the exemption of the law which ‘saves to suitors, in all cases, the right of a common-law remedy where the common law is competent to give it’.

For these reasons, the judgment must be reversed with directions to the superior court to dismiss the proceeding. As one acknowledged authority upon admiralty law has written, ‘The right to proceed in rem is the distinctive remedy of the admiralty and hence administered exclusively by the United States courts in admiralty: no state can confer jurisdiction upon its courts to proceed in rem, nor could Congress give such power to a state, since it would be contrary to the constitutional grant of such power to the Federal Government.’ (Benedict, ‘On Admiralty’, 5th ed., vol. 1, sec. 23.) See, also, Knapp, Stout & Co. v. McCaffrey, 177 U.S. 638, 20 S.Ct. 824, 44 L.Ed. 921; Crawford v. The Bark Caroline Reed, supra.

It is so ordered.

EDMONDS, Justice.

We concur: GIBSON, C. J.; SHENK, J.; McCOMB, Justice pro tem.