The opinion
COXE, Circuit Judge
(dissenting). The petitioner is charged with violating a law of the United States which provides, in substance, that-every person who, on board a vessel belonging to citizens of the United States, upon the high seas, or in any river, haven, creek, basin or bay, within the admiralty jurisdiction of the United States and out of the jurisdiction of any particular state, commits an assault, or maliciously assaults, with intent to plunder, shall be punished as therein provided.
The assault in question was made on board the steamer John Mitchell when she was lying 300 feet from the land side of the breakwater built at the eastern end of Take Erie, and about half a mile from the shore. The situation can be better appreciated by an examination of the following diagram than by many words of description:
*668 In United States v. Rodgers, 150 U. S. 249 , 14 Sup. Ct. 109, 37 L. Ed. 1071 , the Supreme Court, following the inevitable deduction from the reasoning of The Genesee Chief, 12 How. 443 , 13 L. Ed. 1058 , decided that the Great Rakes were high seas within the meaning of the statutes here in question and that the courts of the United States have jurisdiction to try the offenses described therein. The sole question, therefore, is whether the erection by the government of a breakwater which may be used, and is used, as an anchorage ground for vessels-unable, because of congestion or other reason, to enter the harbor and also for vessels delayed in beginning their westward voyages, convertsthi$ portion of the lake into a “haven” within the jurisdiction of the-courts of the state of New York?
It is conceded on all sides, that the point where the Mitchell was-anchored was “upon the high seas” but for the wall 300 feet west of •that point. So the question may be stated thus: Does the erection of a stone breakwater half a mile- from the shore, neither end being connected with the land, convert that portion of the high seas lying between it and the shore into a “haven”? To my mind the answer-should be in.the negative. The Mitchell was anchored inside the-wall known as the “Old Breakwater” and it is true that two other sections of wall known as the “South Breakwater” and “Stony Point Breakwater,” the latter being connected with the shore, run south from, the “Old Breakwater” on a line substantially parallel with it. Between.these sections there are wide sea openings said to be 500 and 250 feet respectively. If it be contended that the three walls in question are-to be considered as one continuous wall, ft follows that a section of Rake Erie four miles long and half a mile wide has been converted into a haven and removed from the jurisdiction of the United States-courts.
But, however this may be, it remains true that the existence of the-“Old Breakwater” is necessary to give any plausibility to the argument of the petitioner. If that did not exist, the assault would have occurred on a vessel anchored in the waters of Rake Erie. The same is-true if the Mitchell had been anchored 300 feet west of the breakwater. Should a storm destroy the wall or the government decide to discontinue it, the jurisdiction of the federal courts might be restored in a single night to the venue of the assault. The unwisdom of vesting the jurisdiction of the United States courts upon circumstances so-factitious seems to me obvious.
The word “haven” as used in the statute does not mean the quiet waters under the lee of a wall which man has erected to protect the-land from the inroads of the sea, but refers to those places of safety between fauces terras which nature has protected from the elements- and where ships-may ride in safety. The latter construction creates-a jurisdiction as immutable as the laws of nature; the one contended for by the petitioner must constantly change with the improvements made by man. A breakwater built to protect a city from the tides or prevent a harbor from being inundated may destroy a jurisdiction! which existed before the Union was formed. It is true that in one-sense the issue is not important, as it relates to what may be considered* a simple assault and battery, but in its consequences it is far reaching- *669 The trend of decision in the federal courts has been steadily in favor of widening the jurisdiction in admiralty; if we uphold the petitioner’s contention, it will, in my judgment, be a distinct step backwards. The facts in the present case illustrate how easy it will be to hamper the commerce of the Great Lakes by lawless acts if large sections of the high seas are to be removed from the jurisdiction of the national courts. If the doctrine contended for be universally adopted, it follows that not only on the Great Lakes, but on the ocean as well, the section, where ships may anchor between a protecting wall and the shore must be withdrawn from the jurisdiction of the federal courts, with the constant clashing of authority which is sure to follow.
The commerce of the Great Lakes is not only national, but international, in character and should be under the jurisdiction and protection of the national courts.
The decision of the District Court should be affirmed.