Packard, 7 Pet. 276, 284; Marshall v. Critico, 9 East 447; Valarino v. Thompson, 7 N. Y. 576, 578; The Federalist, No. 80, Ford's Ed., pp. 531, 532-533, 537.

The application is denied for want of original jurisdiction.

UNITED STATES v. NEW YORK & CUBA MAIL STEAMSHIP COMPANY.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT.

No. 65. Argued October 20, 1925.-Decided December 14, 1925.

1. The Act of December 26, 1920, providing, inter alia, that "alien seamen " found on arrival in ports of the United States to be afflicted with any of the diseases mentioned in § 35 of the Immigration Act of 1917, shall be placed in a hospital designated by an immigration official, and treated, and that all expenses connected therewith shall be borne by the owner or master of the vessel, applies to seamen who are aliens in personal citizenship, without regard to whether the nationality of the vessel be foreign or domestic. P. 310.

2. As applied to American vessels this provision is not repugnant to the due process clause of the Fifth Amendment, and is within the power of Congress over the exclusion of aliens. P. 313. 297 Fed. 159, reversed; Dist. Ct. affirmed.

CERTIORARI to a judgment of the Circuit Court of Appeals which reversed a judgment of the District Court recovered by the United States from the Steamship Company, representing the hospital expenses incurred in curing a diseased seaman.

Assistant Attorney General Letts, with whom Solicitor General Beck and Mr. J. Frank Staley, Special Assistant to the Attorney General, were on the brief, for the United States.

304

Argument for Respondent.

Mr. Mark W. Maclay, with whom Mr. John Tilney Carpenter was on the brief, for respondent.

As a general principle, seamen partake of the nationality of the ships upon which they are employed. All seamen, including aliens, regularly employed on vessels of the United States, are "American seamen." In re Ross, 140 U. S. 453. This principle has been followed by the Department of State in administering statutory provisions relating to seamen, through the Consular Service, which is governed by the Consular Regulations. Revised Stats. § 4577, which provides for the repatriation of destitute American seamen, has been construed both by the Consular Regulations and by Judge Story as covering seamen of foreign nationality on American vessels. Matthews v. Offley, 3 Sumn. 115. See The Santa Elena, 271 Fed. 347; The Laura M. Lunt, 170 Fed. 204; The Blakeley, 234 Fed. 959. Aliens or foreigners employed on American vessels are considered as American seamen. Citizens of the United States while employed as seamen on foreign ships are "alien seamen. alien seamen." Rainey v. N. Y. & P. S. S. Co., 216 Fed. 449; The Marie, 49 Fed. 286; The Ester, 190 Fed. 216; The Albergen, 223 Fed. 443.

The Act of December 26, 1920, should be construed in accordance with the general doctrine of nationality of seamen. The drastic and highly penal character of this Act require a strict construction. The language and clear intention of the statute do not require application to American shipowners. The provision of the statute for the return of incurable cases is clear as applied to seamen on foreign ships, but is meaningless or absurdly unjust if applied to an alien person shipped at a United States port on an American vessel. Castner, Curran & Bullitt, Inc. v. Hamilton, 275 Fed. 203; Neilson v. Rhine Shipping Co., 248 U. S. 205. Both United States v. Union Supply Co., 215 U. S. 50, and Neilson v. Rhine Shipping Co., 248 U. S. 205, depend on the same fundamental canon, that a

Argument for Respondent.

269 U.S.

statute must be construed, if possible, as a harmonious whole, and in such a way as to give effect to all its parts. As the second proviso cannot be given effective meaning unless the words "alien seamen " throughout the Act be construed as not applying to seamen on American vessels, that is a sufficient reason for the construction adopted by the Circuit Court of Appeals.

Finally, if "it is not thinkable" that the American shipowner engaged in foreign trade should be required to return a diseased alien to the distant country from which he originally came, it is certainly "not thinkable" that Congress intended that American vessels in the coastwise service, employing aliens who contract one of the specified disabilities or diseases during the voyage, be required to return them to their distant native land. Yet if the term "alien seamen " means persons who individually are aliens, even though they are seamen on an American vessel, the Act necessarily applies to coastwise shipping. The legislative history of the Act shows that it was intended to apply to foreign ships, and not to seamen of any individual nationality on vessels of the United States.

The relation, if any, between the Act of December 26, 1920, and the Immigration Laws, does not require the construction of "alien seamen " to mean "alien individuals employed as seamen on American vessels." The Act of December 26, 1920, is not an amendment of the Immigration Act. The subject matter of the Act of December 26, 1920, relates to seamen and public health rather than to immigration. The title and form of the Act of 1920 distinguish it from the immigration statutes. References in the statute to immigration are unimportant. The Act of 1920 differs from the Immigration Act, § 35, in respect of the persons and vessels described and the conditions of liability. Castner, Curran & Bullitt, Inc. v. Hamilton, 275 Fed. 203. The unconstitutionality of the statute as

304

Argument for Respondent.

applied to owners of vessels of the United States is a sufficient reason for affirming the judgment of the Circuit Court of Appeals.

An examination of the decisions on liability without fault, reveals that statutory liability should not be sustained under the police power, or any other power under the Constitution of the United States, against a defendant who cannot reasonably be said to be in the chain of causation leading to the damage, or in control of the instrumentality which gives rise to it. Fritz v. Railroad, 243 Mo. 62. The basis of the validity of legislation of this character is found in the fact that the party sought to be charged has control over the instrumentality which causes the damage. St. Louis & S. F. Ry. Co. v. Mathews, 165 U. S. 1; Eastman v. Jennings-McRae Logging Co., 69 Oregon 1. Furthermore, a statute making a railroad absolutely liable for all damage, such as the death of animals occurring on its right of way, without imposing any duty, or without providing for a judicial determination as to whether there has been a breach of duty, is clearly unconstitutional. Zeigler v. South & North Alabama R. R., 58 Ala. 594; Birmingham Mineral R. R. v. Parsons, 100 Ala. 662; Union Pacific Ry. v. Kerr, 19 Colo. 273; Wadsworth v. Union Pacific Ry., 18 Colo. 600; Cateril v. Union Pac. Ry., 2 Idaho 540; Bielenberg v. Montana Union Ry., 8 Mont. 271; Atchison, etc. R. R. v. Baty, 6 Neb. 37; Jensen v. Union Pacific Ry., 6 Utah 253; Jolliffe v. Brown, 14 Wash. 155; Schenck v. Union Pacific Ry., 5 Wyo. 430.

The same basis of determining what is due process was relied on in two cases in which statutes, not in respect of railroads, but in respect of highway collisions, were held unconstitutional. Camp v. Rogers, 44 Conn. 291 and Daugherty v. Thomas, 174 Mich. 371. See Ex parte Hodges, 87 Calif. 162.

By the same reasoning, this respondent, which had no control over the contraction of the disease or the condition

of the seaman, should not be held liable for the expenses of treatment as provided in the Act of 1920. In relations between master and servant, although both by the maritime law and also under workmen's compensation statutes, the employer is liable, without fault, for injury to the employee resulting from risks inherent in the employment, or due to its peculiar conditions, such liability does not extend to losses caused by the wilful misconduct of the employee. 25 Harv. L. Rev. 129; Cudahy v. Parramore, 263 U. S. 418. It is believed that every one of these statutes upheld by the courts has contained a provision exempting the employer from liability for the results of the employee's wilful misconduct. Missouri Pacific Ry. v. Castle, 224 U. S. 541; N. Y. Central R. R. v. White, 243 U. S. 188; Hawkins v. Bleakly, 243 U. S. 210; Mountain Timber Co. v. Washington, 243 U. S. 219; Arizona Employers' Liability Cases, 250 U. S. 400.

Under the maritime law it is well settled that a shipowner is liable, irrespective of negligence, for the maintenance and cure of seamen who are injured or become sick in the course of the employment. The Osceola, 189 U. S. 158. As in the case of the express provisions of workmen's compensation acts, the maritime law holds that seamen suffering from venereal disease, or from injury due to their own wilful misconduct, are not entitled to maintenance and cure. Pierce v. Patton (1833), Gilp. 435. Chandler v. The Annie Buckman (1853), 21 Betts D. C. (MS.) 112; The Alector, 263 Fed. 1007; The Bouker No. 2, 241 Fed. 831.

MR. JUSTICE SANFORD delivered the opinion of the Court.

The questions involved in this case relate to the construction and constitutionality of the Act of December 26, 1920, c. 4, 41 Stat. 1082, entitled "An Act to provide for the treatment in hospital of diseased alien seamen." It