(dissenting).
I am unable to agree with so much of the judgment of the majority of this court as imposes a fine of $500 against the “ship’s company.” No such cause of action was alleged in either the original or amended libel, and no such cause of action has been claimed, or suggested in this court by either party to the action.
The Japanese sealing schooner Tokai Maru was found on June 28, 1910, in the waters of Alaska, near Kelekta Bay, Unalaska, by the officers of the United States revenue cutter Perry, with some 20 fish on board the schooner, some of which had been salted down. Fishing tackle was also found on board, such as lines, hooks, and sinkers, but no rods, spears, or- gaffs. One fish line was wet when found, indicating that it had been recently in use. The captain of the revenue cutter seized the schooner, and arrested the officers and crew, consisting of 38 men, all natives of the empire of Japan, for a violation of the act of June 14, 1906, entitled: “An act to prohibit aliens from fishing in the waters of Alaska.” Act June 14, 1906, c. 3299, 34 Stat. -263 (48 U.S.C.A. §§ 243-247 and note). The schooner, together with the officers and crew, were taken by the officers of the revenue cutter to Unalaska. The schooner was turned over to the United States marshal, and on July 8, 1910, a complaint was filed in the justice’s court at Unalaska, charging each and every officer and member of the crew of the schooner by name with a violation of the said act of June 14, 1906. Upon a trial in the justice’s court the officers and crew of .the vessel were *649found guilty as charged in the complaint, and a judgment was thereupon entered, fining each officer and member of the crew the sum of $500; the fines amounting in the aggregate to the sum of $19,000. It was further adjudged that, in case any one of the defendants should fail or refuse to pay said fine of said $500, he should be confined in the United States jail at Valdez, Alaska, until such fine was paid, not to exceed one day for each $2 of said fine, and that the cost of the prosecution should be taxed proportionately to each of the defendants. This judgment was entered in the justice’s court on July 10, 1910, and the defendants thereupon imprisoned under its terms. On July 11, 1910, a libel was filed in the United States District Court for the District of Alaska against the schooner, charging that her officers and men had been engaged in unlawfully fishing with line, leaden sinker, and hooks within three miles of Unalaska Island, in Alaska; that, on account thereof, said officers and men had been convicted and fined in the sum of $19,000 and costs; that the United States had a lien upon said schooner, her tackle, apparel, furniture, and cargo for said amount, and praying that the vessel be sold to pay said fines and in discharge of said liens.
Subsequently an amended libel was filed containing two causes of action: The first cause of action alleged the seizure of the vessel, her tackle, apparel, furniture, and cargo to recover a fine of not less than $100 and not more than $500 upon the charge, in substance, that the captain, officers, and crew of the vessel had unlawfully caught and killed fish in the waters of Alaska by means other than with spear, rod, or gaff, said officers and crew being aliens and not qualified under the act of June 14, 1906, to catch and kill fish in the waters of Alaska by such other means.
The second cause of action alleges that a complaint had been filed in the justice’s court for the Aleutian Island, precinct, district of Alaska, against the captain, officers, and crew of the vessel, numbering 38 in all, charging them with unlawfully fishing in the waters of Alaska in the manner and form before alleged. This complaint is set forth in full in the libel. It is further alleged that a warrant had been issued for the arrest of the defendants, and under and by virtue thereof they had been brought before the justice’s *650court, and .such proceeding had that the defendants had been duly tried in said court before a jury, and found guilty of the crime charged in the complaint. It is alleged that the court thereupon pronounced sentence and rendered judgment against the defendants that they each to pay a fine of $500; that said fine amounted in the aggregate to the sum of $19,000. It is further alleged that it was the judgment of the court that each of the defendants stand committed until his fine be paid in the manner and form provided by law. It was alleged that the schooner was liable to a fine of not less than $100 or more than $500, and subject to condemnation and sale for the payment thereof, and also for the payment of the fines imposed against the captain, officers, and crew of the vessel, amounting to the sum of $19,000. It was alleged that these fines imposed upon the officers and crew of the vessel were liens against the vessel, her tackle, apparel, furniture, and cargo in favor of the United States, and that the said vessel, her tackle, apparel, furniture and cargo were subject to condemnation and sale for the satisfaction of said liens.
The prayer of the amended libel was that the court pronounce a fine against the vessel in the sum of $1,000; that the schooner, her tackle, apparel, furniture, and cargo be condemned by the said decree of the court, and sold to satisfy the fine against the vessel, and also the liens for the fines imposed against the captain, officers, and crew of the vessel in the justice’s court in the sum of $19,000.
The answer of the claimant of the schooner denied the material allegations of the libel; and specifically that the proceedings before the justice of the peace were in accordance with law; denied that any valid complaint was filed' in said court against the captain, officers, and crew of said schooner or any of them; denied that they were lawfully tried;, denied that they, or any of them, were lawfully convicted of any offense, but alleged that all the purported legal proceedings before the said justice of the peace were without jurisdiction and void.
The court entered a decree in favor of the United States upon both causes of action viz., a decree for $500 as a fine against the vessel, and a decree for $19,000 .for the fines imposed upon the officers and crew of the vessel, and for costs.
*651The decree is as follows: “That the fines, amounting to $500 each and aggregating the sum of $19,000, imposed against the captain, officers, and members of the crew of said vessel, 38 in all, by the judgment of the justice’s court for the Aleutian Island precinct, Third division, district of Alaska, as set forth in the amended libel of information herein, be, and they are hereby declared to be, liens in favor of the United States against said vessel, her tackle, apparel, furniture, and cargo, and the said liens are declared to be, and they are hereby foreclosed. That said schooner Tokai Maru, her tackle, apparel, furniture, and cargo, including the firearms, ammunition, and 117 fur sealskins, constituting a part of said cargo, be, and they are hereby, condemned and ordered sold to satisfy the said liens, amounting to $19,000, and said fine of $500 imposed against said vessel.”
The decree then orders the vessel, her tackle, apparel, furniture, and cargo, including the firearms, ammunition, and 117 fur sealskins, constituting a part of said cargo, to be sold by the United States marshal, and the proceeds arising from the sale of said vessel, her tackle, apparel, furniture, and cargo be applied, first, to the payment of the fine imposed against the vessel; second, to the payment and satisfaction of the said fines imposed by the justice’s court against the captain, officers, and crew of said vessel. By the judgment of this court the decree of the District Court imposing’ a fine of $500 upon each of the officers and crew of the vessel, amounting in the aggregate to $19,-000, is reversed; and, in lieu thereof, a decree is directed to be entered in the sum of $500, being the amount of a fine imposed upon the captain and crew of the vessel as a “company.”
The first objection to this decree is that the evidence is not sufficient to sustain it. In my opinion the justice’s court had no jurisdiction of the case against the officers and crew of the vessel under the act of June 14, 1906. The judgment of that court was therefore void, and, being void, it was not evidence against the vessel in the District Court. But it is said the case is here for a trial de novo, and this court may direct the entry of a proper decree notwithstanding errors of the trial court in receiving incompetent evidence. Conceding such to be the jurisdiction of *652this court, nevertheless there must be evidence to support such a decree. The evidence consists in the finding of some 20 fish on board the vessel, some of which had been salted down; the finding also of fishing tackle, such as lines, hooks, and sinkers, one fish line being wet when found, indicating that it had been recently used. No rods or gaffs were found on board. This evidence was sufficient to warrant the seizure of the vessel under section 4, Act June 14, 1906, c. 3299, 34 Stat. 263 (48 U.S.C.A. § 246), which provides that: “If any foreign vessel shall be found within the waters to which this act applies, having on board fresh or cured fish, and apparatus or implements suitable for killing or taking fish, it shall be presumed that the vessel and apparatus were used in violation of this act until it is otherwise sufficiently proved.”
But this presumption does not run against the officers and crew of the vessel, either individually as determined by the decree of the District Court, or collectively as “ship’s company” as determined by this court; and without this presumption the evidence is clearly insufficient to support either decree.
The second objection to this decree is that it is not determined whether the justice’s court at Unalaska had jurisdiction of prosecutions under the act of June 14, 1906. It is merely held that the prosecution and conviction of the captain and members of the crew is not an essential prerequisite of the enforcement of the government’s right against the offending vessel. But the fact remains that the decree of the District Court against the officers and crew of the vessel was based upon the judgment entered in the justice’s court at Unalaska. If the justice’s court had no jurisdiction of the case, as I think it had not, then that part of the decree of the District Court was not only not supported by evidence, but the libel against the vessel charged no cause of action for which it was liable.
The third objection to the decree is that it is upon a trial de novo in this court without regard to the established rules of practice governing such a trial. A trial de novo is a trial anew, or a second trial. Ex parte Morales (Tex.Cr.App.) 53 S.W. 107, 108; 8 Am. & Eng.Encyc. 832, 13 Cyc. 786. “This is, in the same manner, with the same effect, and upon the same issues tried in the court below.” *653Paul v. Armstrong, 1 Nev. 96. See, also, People v. County of El Dorado, 10 Cal. 19; Adams v. Oakes, 20 Johns. (N.Y.) 282. But a rehearing in admiralty is regulated by established rules. The Charles Morgan, 115 U.S. 69, 75, 5 S.Ct. 1172, 29 L.Ed. 316. The twenty-fourth admiralty rule (29 Sup.Ct. xli), as prescribed by the Supreme Court of the United States, provides: “And new counts may be filed, and amendments in matters of substance may be made,. upon motion, at any time before the final decree, upon such terms as the court shall impose.”
With respect to proceedings in the appellate courts in admiralty cases, the practice has been changed from time to time by acts of Congress. 1 Enc. of U. S. Supreme Court Reports, 176, 194; Munson S. S. Line v. Miramar S. S. Co., 167 F. 960, 93 C.C.A. 360. With respect to appeals from the District Court of Alaska, see In re Cooper, 143 U.S. 472, 12 S.Ct. 453, 36 L.Ed. 232. In view of the uncertainty as to the practice in admiralty cases in the Circuit Court of Appeals under act March 3, 1891, c. 517, 26 Stat. 826, this court in 1900 adopted the rules previously adopted in the Circuit Court of Appeals in the Second Circuit (100 F. v). Rules 7 and 8 provide as follows:
“7. New Allegations, etc. Upon sufficient cause shown, this court, or any judge thereof, may allow either appellant or appellee to make new allegations or pray different relief or interpose a new defense, or make new proofs. Application for such leave may be made at any time after the. perfecting of the appeal to this court, and within fifteen days after the filing in this court of the apostles, and upon at least four days’ notice to the adverse party or his attorney of record.
“8. New Pleadings — New Testimony. If leave be granted to make new allegations, pray different relief, or interpose a new defense, the moving party shall within ten days thereafter, serve such new pleading, duly verified on the adverse party, who shall, if such pleading be a libel, within twenty days answer on oath.”
In the present case no proceedings have been taken under these rules or otherwise to amend the libel by making new allegations or in stating a new cause of action, nor has there been any prayer for other or different relief than that con*654tained in the amended libel, upon which the decree was entered in the District Court. I am therefore of the opinion that no new decree should be entered by this court without such proceedings and opportunity offered the claimant to appear and answer this new cause of action.'
There is still another objection to the decree of this court. The judgment of the District Court was that the officers and crew of the vessel should be each fined the sum of $500, and that they should be confined in the United States jail at Valdez until such fine should be paid, not to exceed one day for each $2 of said fine. It appears from the record that the defendants were imprisoned on the 11th day of July, 1910. It appears, further, that on the 2d of February, 1911, these defendants were still in jail, and the presumption is that they continued in jail until the fine was fully paid. The penalty of the statute as determined by the judgment of the court has, therefore, been satisfied as against the individual defendants, and it seems to me that this should be held as a satisfaction of the penalty against them as the “ship’s company.”
The decree also appears to me to be inconsistent. It discharges the fur sealskins found on board the vessel from the seizure and lien of the decree. The statute makes the fine a “lien against any vessel or other property of the offending party, or which was used in the commission of the unlawful act.” The answer of the claimant admits that “part of the firearms, ammunition and fur sealskins are the property of the captain, officers and crew of said schooner.” If a decree is to be entered against the captain, officers, and crew of the vessel as a company, to be enforced against the vessel as a lien, there does not appear any good reason why the fur sealskins should be released from the lien and liability.
In my opinion the decree should be reversed, with instructions to dismiss the libel as to the cause of action based upon the judgment entered in the justice’s court on the ground that that court had no jurisdiction of the case, and a decree entered against the vessel in favor of the United States for $500 and for costs, this decree to be a lien upon the vessel alone.