190 F. 216 | E.D.S.C. | 1911
This is a libel in rem against a foreign steamship, brought to recover unpaid wages to the amount of $174.55, and in addition thereto damages for personal injury to the amount of $5,000. The respondents, the owners of the ship, have intervened herein, appearing especially to raise the question of jurisdiction, and have filed a sworn petition, accompanied by affidavits and certificates, and have further filed exceptions to the libel, claiming' that the matters therein stated are not within the jurisdiction of this court. Upon the libel and this petition, with the accompanying affidavits and certificates and these exceptions and the answer to the petition, a motion has been made to dismiss the cause for lack of jurisdiction, and the case has been heard upon this motion. The facts appear to be as follows: The steamship Ester is a Swedish steamship, sailing under the flag of the Kingdom of Sweden, and is owned by a corporation or company styled the Angfartygsaktiebolagat Karin, which is, and all the members of which are, citizens of the Kingdom of Sweden. This Swedish steamship, whilst lying in the port of Nordenham, in the German Empire, and destined on a voyage to Charleston, S. C., and thence to some further ports as might be deemed expedient, until it should arrive at some port in the Kingdom of Sweden, enrolled the libelant, Osterkamp. Osterkamp, it appears, signed the articles of the ship in due form and went on the ship and served in pursuance thereof. At the time of signing these articles, he was. a citizen of the German Empire and under the age of 21 years, and therefore a minor by the laws of the state of South Carolina. The-vessel arrived at the port of Charleston, and whilst in that port, lying at her dock at one of the wharves in that port, the libelant, while in performance of his duties on the ship, fell through an open coal chute into a coal bunker, severely injuring himself thereby, in consequence of which he was sent by the master of the ship to a hospital in the city of Charleston. While he was confined in the hospital, the vessel departed from the port of Charleston, leaving the libelant in the hospital, and after visiting various ports in
The petition of the shipowners sets up that, the vessel being a Swedish vessel, and owned by Swedish citizens, the libelant, when he became enrolled as a seaman on that vessel, became for the time being, so long as his term of service lasted, a citizen, and subject of the Kingdom of Sweden, and that, this matter being a question of difference between the master of a Swedish vessel and a citizen and subject of that Kingdom as a seaman on that vessel, under the treaty stipulations between the United States and the Kingdom of Sweden, this court has no jurisdiction, and that, even if it had jurisdiction, as a matter of comity it will not exercise that jurisdiction where the Swedish consul protests against the exercise by the court of any jurisdiction in this case. The petition further alleges that there is a certain declaration between the government of the King of Sweden and the government of the Emperor of Germany concerning assistance to destitute seamen, which provides that whenever a seaman belonging to one of the contracting parties, after having served on board the vessel of the other contracting party, is left behind in a third state or its colonies, and the said seaman is in a condition of distress, then the government on board of whose vessel the seaman has served is bound to support him until he again enters into a ship’s service or finds other employment or until he arrives in his native country, or dies. The consul for Sweden in New York certifies to the court that the matter of the adjustment of this controversy and the performance of these treaty provisions between Germany and Sweden is in course of correspondence between the consuls of those countries, and that it is the desire of the consulate that the provisions of this declaration should be availed of and that the seaman Osterkamp be returned to Germany according to the requirements of the declaration. In addition to that, there is presented, to the court a letter from the Swedish minister at Washington, asking that the request of the consul for Sweden in New York be granted.
The case presented, therefore, is the case of a controversy based
, The general rule of international law is stated in the Digest of the International Law of the United States, edited by Francis Wharton, and published by the government (volume 1, p. 130), to be that:
“So far as regards acts done at sea before tier arrival in port, and acts done on board in port by members of tlie crew to one another, and so far as regards the general regulation of the right's and duties of those belonging on. board, the vessel is exempt from local jurisdiction; but if the acts done on board affect the peace of the country in whose ports she lies, or the persons, or property of its subjects, to that' extent that state has jurisdiction.”
This rule as so stated, however, has been modified by the decisions of the Supreme Court of the United States.
In Ex parte Newman, 14 Wall. 150, 20 L. Ed. 877, the court, in the course of the delivery of its opinion (although the point was not involved in the question actually decided), states, on the question of a libel' by a Prussian seaman against a Prussian vessel for wages, that admiralty'courts, it is said, will not take jurisdiction in such a case except where it is manifestly necessary to do so to prevent a failure of justice; but the better opinion is that, independent of treaty stipulations, there is no constitutional or legal impediment to the exercise of jurisdiction in such a case. Such courts, may, if they see fit, take, jurisdiction in such a case; but they will not do so as a general rule without the consent of the representative of the country to which the vessel bélongs, where it is practicable that the representative should be consulted. His consent, however, is not a condition of jurisdiction, but is regarded as a material fact to aid the court in determining the question of discretion whether jurisdiction in the case ought or ought not to be exercised. This and the succeeding cases in which the subject has come up for an opinion in the Supreme Court of the United States appear to have established the following rules:
(4) Where, however, special circumstances exist, such as where the voyage is ended, or the seamen have been dismissed or treated with great cnielty, the courts, in the absence of treaty stipulations, will entertain jurisdiction, even against the protest of the consul. The Belgenland, 114 U. S. 355, 5 Sup. Ct. 860, 29 L. Ed. 152.
(7) Where Congress has passed an act which may conflict with pri- or treaty stipulations, it is the duty of the court to uphold the later statute if clear and explicit, even in contravention of express stipulations in an earlier treaty. Fong Yue Ting v. United States, 149 U. S. 720, 13 Sup. Ct. 1016, 37 L. Ed. 905; Patterson v. Eudora, 190 U. S. 178, 23 Sup. Ct. 821, 47 L. Ed. 1002.
The decisions of the lower federal courts in the United States have been many, but it is difficult to draw any uniform, logical rule from them.
First. This class includes cases in which it has been held that the courts of admiralty have the right to take jurisdiction in the absence of special treaty stipulations in controversies between foreign seamen and foreign vessels, whether arising on the high seas or in the port, and whether based on tort or for wages. That this jurisdiction is not compulsory, but is discretionary. That this discretion will not be exercised against the protest of the consul of the country to which the vessel belongs, except under special circumstances. Where these special circumstances exist, however, the jurisdiction will be exercised, notwithstanding such protest. The Becherdass, 1 Tow. 569, Fed. Cas. No. 1,203;. The Lilian M. Yigus, 10 Ben. 385, Fed. Cas. No. 8,346; Boult v. Ship Naval Reserve (D. C.) 5 Fed. 209; The Carolina (D. C.) 14 Fed. 424; Fry v. Cook, Id.; The Montapedia (D. C.) 14 Fed. 427; The City of Carlisle (D. C.) 39 Fed. 807, 5 L. R. A. 52; Camille v. Couch (D. C.) 40 Fed. 176; The Topsy (D. C.) 44 Fed. 631; The Sirius (D. C.) 47 Fed. 825; The Karoo (D. C.) 49 Fed. 651; The Walter D. Wallet (D. C.) 66 Fed. 1011; Bolden v. Jensen (D. C.) 70 Fed. 505; The Lamington (D. C.) 87 Fed. 752; The Eudora (D. C.) 110 Fed. 430; The Kestor (D. C.) 110 Fed. 432; The Troop (D. C.) 118 Fed. 769; The Alnwick (D. C.) 132 Fed. 117; The Ucayali (D. C.) 164 Fed. 897.
It appears that there are no special treaty stipulations between this country and Great Britain. The Ucayali (D. C.) 164'Fed. 899; The Bound Brook (D. C.) 146 Fed. 163; The Troop (D. C.) 117 Fed. 557; The Walter D. Wallet (D. C.) 66 Fed. 1011. All the above-mentioned cases are cases of British vessels, with the exception of the case of Bolden v. Jensen (D. C.) 70 Fed. 505, which was the case of a Chilian vessel, and as to which case it is not said whether there were any special treaty stipulations or not.
A review of these decisions discloses no uniform rule for the guidance of the court. The circumstances under which the court will act where it has jurisdiction, and that jurisdiction is discretionary, is not limited in these cases, as indicated by the Supreme Court of the United States in The Belgenlaud, to cases where the voyage is ended, or the seamen have been dismissed or treated with great cruelty; but the discretion is declared to be properly exercised in all cases in which the court may be of the opinion, under the circumstances of the particular case, that it would work hardship or injustice not to take jurisdiction, whether with the assent or against the protest of the consul of the nation to which the ship belongs. This conclusion practically leaves the matter in a position in which upon any application the court must to a certain extent hear the case on the merits. In order to ascertain whether the special circumstances exist in any particular case that would lead the court to take jurisdiction, it would be neces
Second. The second class of cases are cases in which the courts have held that notwithstanding there are treaty stipulations, apparently excluding the jurisdiction of the court, yet that the court is at liberty' to ignore these stipulations and take jurisdiction where there are special circumstances. The Elwin Kreplin, 4 Ben. 413, Fed. Cas, No. 4,427; The Amalia (D. C.) 3 Fed. 652; The Salomoni (D. C.) 29 Fed. 534. In The Elwin Kreplin the jurisdiction was put upon the circumstance of hardship, such as where the sailors who brought the proceedings would have been left paupers and must have returned to Prussia, and there awaited the return-of the ship in order to enforce their demands, bringing about a state of things against which the sense of justice of the court revolted. This decision of the District Court in admiralty, however, was overruled by the Circuit Court in the case of the same title in 9 Blatch. 438, Fed. Cas. No. 4,426. In The Amalia the jurisdiction, notwithstanding the treaty stipulations between the United States and Sweden, was placed upon the ground that there was no consul or other officer of Sweden within the territorial jurisdiction of the court, and in the case of The Salomoni, where special treaty stipulations existed with the Kingdom of Italy, the right of the court of admiralty to take jurisdiction was placed upon the same ground as existing where there was no consul or other officer of the nation to which the ship belonged within the territorial jurisdiction of the court. There is no case later than The Salomoni (D. C.), in 29 Fed. 534, which holds the rule announced in this class of cases. The reasoning on which these cases rest is that the treaty contemplates that there shall be a consular officer to exercise the jurisdiction reserved to him. If there is no such consular officer; then the tribunal provided by the treaty fails, and with it should fail the application of the treaty stipulations. The exclusion of the jurisdiction-of the local court is supposedly intended only in favor of the special tribunal provided by the treaty. If there is no such special tribunal, then there would be absolutely no court or person to whom the applicant could apply for justice and relief unless the treaty be interpreted to mean that the local court is not deprived-of jurisdiction if the office specified in the treaty is not within the reach of the applicant, and that it is the duty of the country under the terms of such a treaty to provide accessible officers to exercise the jurisdiction or leave the matter to the proper local courts.
Third. The third class is that of cases in which it is held that, where the existing treaty stipulations upon the face of them exclude-the jurisdiction of the court, such treaty stipulations are to receive faithful observation, and the court cannot take jurisdiction. The Elwin Kreplin, 9 Blatchf. 438, Fed. Cas. No. 4,426; The Burchard (D. C.) 42 Fed. 608; The Marie (D. C.) 49 Fed. 286; The Welhaven (D. C.) 55 Fed. 80; The Bound Brook (D. C.) 146 Fed. 160; Tellefsen v. Fee, 168 Mass. 188, 46 N. E. 562, 45 L. R. A. 481, 60 Am. St. Rep. 379. These cases are none of them cases referring to British vessels, but all referring to Prussian, German, Norwegian, or Swedish vessels,
Fourth. There are also cases which have gone to the length of holding that where the proceedings are brought on behalf of an American citizen, although they may he brought against a foreign vessel, and brought by reason of libelant’s having served as an enlisted seaman on that vessel, yet that raider the Constitution of the United States he has a constitutional right to invoke the jurisdiction of the court, of which he cannot be deprived either by treaty stipulation or act of Congress. Bolden v. Jensen (D. C.) 70 Fed. 505; The Falls of Keltie (D. C.) 114 Fed. 357; The Troop (D. C.) 117 Fed. 557; The Neck (D. C.) 138 Fed. 144. All these last four decisions are by the District Court for the District of Washington. The conclusion arrived at in these later cases appears to be in direct conflict with the principle that a seaman duly enrolled upon a foreign vessel is for the time being, and with regard to his employment on that vessel, a citizen of the same country as that to which the vessel belongs.
The following are the treaty stipulations invoked by the petitioner and the Swedish consul:
Article 11 of the consular convention of June 1, 1910, between Sweden and the United States:
“The respective consuls general, consuls, vice consuls general, vice consuls, deputy consuls general, deputy consuls, and consular agents shall have ex-*227 elusive charge of the internal order of the merchant vessels of their nation, and shall alone take cognizance of any differences which may arise, either at sea or in port, between the captains, officers and crews, without exception, particularly in reference to the adjustment of wages and the execution of contracts. The local authorities shall not interfere except when the dis-. order that' has arisen is of such a nature as to disturb tranquility and public order on shore or in the port, or when a person of the country or not belonging to the crew shall be concerned therein.
“in all other cases the aforesaid authorities shall confine themselves to lending aid to the said consular officers, if they are requested by them to do so, in causing the arrest and imprisonment of any person whose name is inscribed on the crew list whenever, for any cause, the said officers shall think proper.”
Article 13 of the treaty of July 4, 1827, between Sweden and Norway and the United States:
“The consuls, vice consuls or commercial agents, or the'persons duly authorized to supply their places, shall have the right as such to sit as judges and arbitrators 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, without the interference of the local authorities unless the conduct of the crews, or of the captain should disturb the order or tranquility of the country; or the said consuls, vice consuls or commercial agents should require their assistance to cause their decisions to be carried into effect or supported. It’ is however understood, that this species of judgment or arbitration shall not deprive the contending parties of the right they have to resort, on their return, to the judicial authority of their country." 8 St'at. 852.
Do these stipulations on the face of them exclude this court from taking jurisdiction of the present case? This depends upon the construction of the word “differences,” as used in the treaties. Does that word cover the case of a tort, such as in the present case, where the claim is based upon personal injury arising from the alleged negligence of the captain? It is not the case of a malicious or cruel assault upon the person of the seaman by the master or any of the officers of the ship, or even any of his fellow seamen. It is not the case of cruelty in his treatment from starvation, bad provisions, or other maltreatment. It is a case of the claim of a seaman made for injury caused to him by falling down an unguarded chute or hatch in a vessel, which might have taken place on the open seas or elsewhere, as well as in the port. In the case of The Marie (D. C.) 49 Fed. 286, the court appeared to consider the word “difference” in this treaty as equivalent to covering alt controversies. In the case of The Salotnoni (D. C.) 29 Fed. 534, and of The Baker (D. C.) 157 Fed. 485, the court came to the conclusion that the word “differences” did not cover cases of personal tort under the general language of the Supreme Court on page 16 of 120 U. S. and page 389 of 7 Sup. Ct. (30 U. Fd. 565). In the Wildenhus’ Case, above mentioned, it does not appear whether the Supreme Court at that time considered the word “difference” in similar treaties as covering controversies embracing personal torts. Inasmuch, however, as the rights of the seamen, based upon negligence shown towards him by the master in his management of his vessel, would appear logically to be a matter contemplated by a treaty — that is, that the country making the treaty would intend to hold that all claims of the seaman against the master for injury received by reason of the
The claim of the libelant is that he was injured b}"- a fall through an unguarded chute, which he attributes to the negligence of the master in leaving it unguarded. Under the principle decided by the Supreme Court of the United States in The Osceola, 189 U. S. 158, 23 Sup. Ct. 483, 47 L. Ed. 760, -it is doubtful whether under these circumstances a -seaman could recover indemnity (beyond maintenance and care) for the negligence of the master. It may be, however, that by the domestic law of Sweden such a recovery is allowed. By the law of South Caro- ’ lina the libelant is a minor and entitled, according to the circumstances of the case, to consideration from that fact. It may be by the law of Sweden he is not so considered, and might be held at his age, under that law, to a greater or less degree of care on his own part. The Swedish, consul sets up that under the declaration between the Kingdom of Sweden and the Empire of Germany this’ seaman is bound to be supported by the Kingdom of Sweden until he again enters the service of a ship, or finds other employment, or until he arrives in his native country, or dies. The Swedish consul in New York-further’certifies to this court that it is the desire of that consulate that the provisions of the declaration between German)"- and Sweden shall be availed of, and that the libelant be returned to Germany, according to the terms of the declaration, and it is requested by the consulate that this court refuse to take jurisdiction of the present case. In addition, as has been stated, the minister of Sweden at Washington has presented to the court a request that the court accede to the request from the consul for Sweden in New York, which involves the taking care of the libelant, pursuant to the treaty stipulations between Sweden and Germany. In the face of this request of the Kingdom of Sweden itself, as transmitted in the request of its minister, and of the circumstances of this case, the court holds that, if it has discretionary power to take jurisdiction of this case, such discretion should not be exercised.
The court is not insensible to the argument that seamen are, of all classes in the community, perhaps the most helpless and unable
A decree will be entered dismissing the libel, but ordering all costs to be paid by the petitioner, Angfartygsaktiebolagat Karin.