(T. D. 49693) Oil pollution of navigable waters-Decision of court Decision of the United States Circuit Court of Appeals, Fifth Circuit, holding that (1) the Oil Pollution Act of 1924 does not contravene the Fifth and Eighth Amendments of the Constitution, and (2) a discharge of oil through leaking rivets is not an unavoidable accident within the meaning of the statute, nor is due care a valid defense thereunder TREASURY DEPARTMENT, OFFICE OF THE COMMISSIONER OF CUSTOMS, To Collectors of Customs and Others Concerned: The following decision of the United States Circuit Court of Appeals for the Fifth Circuit in the case of S. B. Hegglund, appellant v. United States of America, appellee, is published for the information of customs officers and others concerned. (92655/69.) H. A. BENNER, Acting Commissioner of Customs. UNITED STATES CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT S. B. Hegglund, appellant v. United States of America, appellee (No. 8684) [Appeal from the District Court of the United States for the Western District of Louisiana] (June 21, 1938) Before SIBLEY, HUTCHESON, and HOLMES, Circuit Judges HUTCHESON, Circuit Judge: Appellant, tried before the court on waiver of jury, was convicted of violating the Oil Pollution Act of 1924 (U. S. C. A. title 33, sec. 431). Attacking the statute as unconstitutional, the verdict as without evidence to support it, and the trial as attended with error in rulings on the admission of evidence, and on matters of substantive law, he appeals. His constitutional point is that the statute has imposed a cruel and unusual punishment upon him, depriving him of his liberty and property without due process of law, in contravention of the Fifth and Eighth Amendments respectively. His point on the want of evidence to support the findings and verdict turns on the proper construction of the statute. It is not that there was no escape of oil from the Bidwell, the oil tanker of which he was the master; indeed, the undisputed evidence established that there was. The point is: (1) that the escape was not by discharge; (2) that if the statute does extend to and prohibit discharge by leakage, the discharge for which he was convicted was within the statutory exception, an unavoidable accident, and therefore not a violation. The ruling on evidence claimed as erroneous is the admission of proof that on occasions other than the one charged in the information the Bidwell, while loading, had discharged oil into the channel. Short work may be made of the constitutional point. While it is true that the particular section under which the information was lodged against appellant has apparently not been considered by an appellate court, this section is in addition to and supplementary of antipollution laws long existing, the Pollution Act of June 29, 1888 (U. S. C. A. title 33, sec. 444), and that of March 3, 1899 (U. S. C. A. title 33, sec. 407), both held comprehensive enough in scope to include oil pollution. United States v. Alaska Southern Packing Co., 84 Fed. (2nd) 444. The Albania, 30 Fed. (2nd) 727; The Colonbo, 42 Fed. (2nd) 211. For many years these acts have been uniformly enforced and sustained. No question has been, nor, we think, can now be successfully raised as to their constitutionality. They neither purport to, nor do they impose cruel and unusual punishments upon any one, least of all appellant, who has suffered only a small fine. Nor do they deprive any one of his liberty without due process. They merely exert the power the United States has over navigable waters, to preserve and protect them from unnecessary pollution by the very activities, those of navigation, which the United States is authorized to supervise, foster, and control. Many cases have been decided sustaining this legislation, and giving it positive and comprehensive meaning and effect to prevent the mischiefs it was aimed at. Authorities supra, and New England Dredging Co. v. United States, 144 Fed. 932; The Minot I. Wilcox, 152 Fed. 548. When it comes to the merits, we do not think appellant stands any better. It is undisputed that oil was discharged from the Bidwell while in the charge and under the control of defendant as its master, and that he knew, or was charged with knowledge, that such discharge would likely occur in connection with the loading. We think it will not do to say that because the discharge was not intentional, but the result of leaking rivets, it was not within both the letter and the spirit of the act. The Colonbo, supra, so construed the earlier statute, and gave it application in a like situation. Neither will it do for appellant to argue as he does that the discharge for which he was convicted was an unavoidable accident, within the exceptions of the act. We think, as there used, "unavoidable accident" refers to some sudden or unlookedfor occurrence which, like a collision or a stranding, causes a discharge from conditions beyond the master's control. No such conditions are shown here. It was made to appear that it is difficult to prevent rivet leaks, but this proof cuts both ways, and working against the appellant was the proof to which he objected, that the Bidwell had had a bad history of leakage while loading, and that the master knew that it had. In urging upon us that there was reversible error in admitting this evidence, appellant thus finds himself in a dilemma. If the statute imposes liability without regard to intent, and the evidence was therefore immaterial, its admission was harmless. If, on the other hand, "unavoidable accident", as the statute uses it, means what appellant claims it does, a happening which, because of its unexpectedness could not, by the exercise of due care, have been provided against, the evidence had a bearing upon whether the discharge of the oil while loading was, or was not, an unexpected event, and it was therefore clearly admissible. We think that a correct construction of the statute is that leaks from rivets of the kind testified to in this case are not unavoidable accidents. We think this is so whether the statute be construed as appellant would construe it, as excusing all discharges not avoidable by due care, or as prohibiting all discharges except those occurring under conditions of "peril to life or property, unavoidable accident, collision or stranding." In our view, the statute, except under the conditions it sets out, absolutely forbids the prohibited discharge in coastal waters, and due care is not a defense. It charges those who permit the discharge of oil in navigable channels, other than as permitted in the act, with doing so at their peril and with 168316-39-vol. 74-10 absolute accountability Such a construction of the statute puts no undue burden on masters and shipowners. statute from one of strict prohibition, as it was written, to one merely requiring the exercise of due care. The statute does not read that way. We do not think it was so designed. The statutes which it supplements do not read so; they have not been so construed. They are designed, as is this statute, to put upon those using navigable waters the burden of using them without unnecessary pollution. They proceed upon the recognition that pollution by the discharge of refuse is normally not necessary, and they rigidly prohibit that discharge. But for these statutes, navigable channels would no doubt be shamefully polluted and the stream life therein destroyed by the deposit and discharge therein of oil and other refuse. We think the judgment was right. It is affirmed. (T. D. 49694) Foreign currencies-Rates of exchange Rates of exchange certified to the Secretary of the Treasury by the Federal Reserve Bank of New York TREASURY DEPARTMENT, OFFICE OF THE COMMISSIONER OF CUSTOMS, Washington, D. C., August 27, 1938. To Collectors of Customs and Others Concerned: The appended table of the values of certain foreign currencies as certified to the Secretary of the Treasury by the Federal Reserve Bank of New York under the provisions of section 522 (c), Tariff Act of 1930, during the period from August 19 to 25, 1938, inclusive, is published for the information of collectors of customs and others concerned. FRANK DOW, (103512.) Acting Commissioner of Customs. Values of foreign currencies certified to the Secretary of the Treasury by the Federal Reserve Bank of New York under provisions of section 522(c), Tariff Act of 1930 PERIOD AUGUST 19 TO 25, 1938, INCLUSIVE China.. Chefoo dollar (Yuan). 0.044183 1.007321 Dollars Dollars Dollars Dollars Dollars Dollars 1.057500 .251618 .229175 1.023100 1.1704161.169333 1.170000 1.170416 1.1720831.171916 Dollar.. Rupee Yen.. Straits Settlements. Dollar. 304734 304578 .304578 .304656 .304968 3.885937 3. 889765 3.888046 3. 887812 3.889218 995996 996116 996230 996269 .996428 999333 999333 999333 999333 999333 1. 198000 .198000 1.198500 1. 199000 1.198750 .993593 .993671 .993789 .993906 .993945 1.171750 1.170812 304812 362729 284421 .568625 3.889375 3.919531 4.832812 997167 999333 1.196666 .994726 1.325380 1.058440 12.051766 1.325170 1.325265 1.325360 1.325280 1.325400 * * 2 (Official.) Inclusion in this list of a rate for Chilean pesos is only for information in connection with T. D. 49278, particularly the following statement therefrom: "* collectors of customs are hereby directed, in connection with entries of merchandise exported on or after November 30, 1937, and pending the receipt of further instructions from the Department, to require the deposit of estimated duties in an amount determined by the use of the value appearing opposite the word 'official' (T. D. 49695) Airport of entry Warroad Seaplane Base, Warroad, Minn., redesignated as an airport of entry for a period of one year TREASURY DEPARTMENT, August 29, 1938. To Collectors of Customs and Others Concerned: Under the authority of section 7 (b) of the Air Commerce Act of 1926 (U. S. C. title 49, sec. 177 (b)), the Warroad Seaplane Base, Warroad, Minn., is hereby redesignated as an airport of entry for civil aircraft and merchandise carried thereon arriving from places outside the United States, as defined in section 9 (b) of the said act (U. S. C. title 49, sec. 179 (b)), for a period of one year from September 2, 1938. (103624-36.) WAYNE C. TAYLOR, Acting Secretary of the Treasury. [Filed with the Division of the Federal Register September 2, 1938, 11:21 a. m.] . (T. D. 49696) Common carriers Approval and discontinuance of common-carrier bonds TREASURY DEPARTMENT, OFFICE OF THE COMMISSIONER OF CUSTOMS, To Collectors of Customs and Others Concerned: Bonds of common carriers for the transportation of bonded merchandise have been approved or discontinued as follows: Foreign currencies-Rates of exchange Rates of exchange certified to the Secretary of the Treasury by the Federal Reserve Bank of New York TREASURY DEPARTMENT, OFFICE OF THE COMMISSIONER OF CUSTOMS, Washington, D. C., September 3, 1938. To Collectors of Customs and Others Concerned: The appended table of the values of certain foreign currencies as certified to the Secretary of the Treasury by the Federal Reserve |