Ex parte Anderson, 184 F. 114

Ex parte Anderson

184 F. 114 | D. Me. | 1910

HALE, District Judge

(orally, after stating the facts as above). In view of the circumstances of this case I clearly ought to announce my conclusion at once. By section 753 of the Revised Statutes of the United States (U. S. Comp. St. 1901, p. 592), the federal courts have power to issue writs of habeas corpus in favor of prisoners, “in custody in violation of the Constitution or a law or treaty of the United States.” Are these prisoners, now before me, held in violation of the provisions of the treaty of 1827,' between the United States and the kingdom of Norway? They are now in the custody of the sheriff of this county, or one of his deputies, upon writs issued out of the superior court of Cumberland county.

In The Exchange, 7 Cranch, 116, 144, 3 L. Ed. 287, Chief Justice Marshall has pointed out that it would be dangerous to society if the shipowner who sends his ship to the port of another country, for the purposes of trade, did not, as a rule, owe temporary and local alie-*117giance to the jurisdiction of the country to which he has sent his vessel ; but in the Wildenhus Case, 120 U. S. 1, 7 Sup. Ct. 383, 30 L. Ed. 565, the leading case upon this subject, Chief Justice Waite remarks that it was long ago found to be beneficial to commerce for the local government to abstain from interfering with the internal discipline of a foreign ship, where there are treaty relations between this country and the country in which the ship is owned, and so “by comity it has come to be generally understood among civilized nations that all matters of discipline and all things done on board which affected only the vessel, or those belonging to her, and did not involve the peace or dignity of the country, or the tranquillity of the port, should be left by the local government to be dealt with by the authorities of the nation to which the vessel belonged as the laws of that nation or the interests of its commerce should require.”

The treaty of 1827 between Norway and the United States is a part of the law of the United States, i am bound to recognize it as I am bound to recognize any federal law. The captain, Rynning, and the second mate, Anderson, are officers of the Norwegian ship Skogstad. Peterson, the seaman, is a citizen of the kingdom of Norway. Did the master and the second mate deal with Peterson in a manner justifiable, under the discipline of the ship, or did their conduct involve the peace and dignity of the country, and the tranquillity of this port? After a full hearing of the case, in which all the'parties in interest have testified and the consul has given his testimony, stating fully his position in the premises, 1 have no hesitation in deciding- that the conduct of the captain with Peterson was such as related simply to the discipline of the ship, and to the maintenance of order on board the ship, as in the case of the Sally and the Newton, cited in the Wildenhus Case from Wheaton’s Elements of International Raw (3d Ed.) 154.

In the case of Anderson, the second mate, the transactions complained of in the writs upon which these officers were arrested took place largely upon the wharf to which the Skogstad was made fast. Without entering into a discussion of all that took place upon the wharf, I find that whatever the mate did upon the wharf in relation to the seaman was justifiable under his duties as the officer in charge of the ship at the time, in the proper discipline of the ship. Whatever was done upon the wharf did not attain to the gravity which affects the public welfare or requires that the case be taken from the jurisdiction of the ship authorities. It did not, within the meaning- of the law, affect the order or tranquillity of the port. Whether it came to the attention of some of the citizens of Portland, or not, it is not material to inquire. It did not relate to matters passing beyond the obvious jurisdiction of the officers of the ship in the maintenance of ship discipline. Tellefsen v. Fee, 168 Mass. 188, 190, 46 N. E. 562, 45 L. R. A. 481, 60 Am. St. Rep. 379; The Welhaven (D. C.) 55 Fed. 80; The Marie (D. C.) 49 Fed. 286; Tucker v. Alexandroff, 183 U. S. 424, 445, 22 Sup. Ct. 195, 46 L. Ed. 264.

The learned counsel for the respondent takes the position that, under the treaty, consuls and vice consuls have the right to sit as judges *118and arbitrators only “in such differences as may arise between the captains and crews of the vessels belonging to the nation whose interests are committed to their charge,” and that, in the case of Anderson, the difference did not arise between the captain and any member of the crew. In the case before me Anderson was, in fact, acting as the captain of the vessel. He had charge of the vessel at the time. He represented the order and dignity of the vessel in what he did on the wharf, as well as upon the deck of the vessel, on the evening in question, when Peterson was arrested; so that, in fact, the difference did arise literally between the officer in command of the ship and a member of the crew. But I do not take so narrow a view of the treaty as to hold that it is intended to apply to differences which arise between the captain of a vessel, on one side, and the crew, or some member of the crew, upon the other. It clearly refers to such differences as may arise inter sese between the captain and the crew of the vessel; for treaties are to have a liberal construction. Tucker v. Alexandroff, 183 U. S. 424, 437, 22 Sup. Ct. 195, 46 L. Ed. 264.

• The counsel for the respondent also urges that at the time the suits were brought, Peterson had been discharged from the ship. But the decisions of the federal courts clearly hold that it makes no difference that, at the time of bringing the actions in the state courts, the seamen had been discharged from the ship; nor is it material that some of the acts complained of were not wholly confined to the ship, but took place, on the wharf to which the ship was made fast.

The whole question involved in this controversy is of such importance that I shall be glad to have it receive the attention of the appellate court; and with that in view I shall order that, upon the discharge of the petitioners, bonds shall be given by them. I conclude that this case is governed by the treaty between the United States and the kingdom of Norway; that the matters in controversy are wholly subject to the jurisdiction of the representative of that government, or the courts of that country, and are not within the jurisdiction of the courts of this state.

I order, then, that Olaf Rynning, the master of the steamship Skog-stad, and Anders Herman Anderson, the second mate, be discharged from arrest, upon their filing bonds containing the usual provisions,, with surety to be approved by the court, in the sum of $700 in each case. «