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New Jersey. In the following excerpt from the opinion of the court delivered by Mr. Chief Justice Waite are enunciated the rules underlying the assumption or non-assumption of jurisdiction by the local courts:
It is part of the law of civilized nations that when a merchant vessel of one country enters the ports of another for the purpose of trade, it subjects itself to the laws of the place to which it goes, unless by treaty or otherwise the two countries have come to some different understanding or agreement; for, as was said by Chief Justice. Marshall in The Exchange, 7 Cranch, 116, 144, "it would be obviously inconvenient and dangerous to society, and would subject the laws to continual infraction, and the government to degradation, if such merchants did not owe temporary and local allegiance, and were not amenable to the jurisdiction of the country." United States v. Diekelman, 92 U. S. 520; 1 Phillimore's Int. Law, 3d ed. 483, Sec. 351; Twiss' Law of Nations in Time of Peace, 229, Sec. 159; Creasy's Int. Law, 167, Sec. 176; Halleck's Int. Law, 1st ed. 171. And the English judges have uniformly recognized the rights of the courts of the country of which the port is part to punish crimes committed by one foreigner on another in a foreign merchant ship. Regina v. Cunningham, Bell C. C. 72; S. C., 8 Cox C. C. 104; Regina v. Anderson, 11 Cox C. C. 198, 204; S. C., L. R. 1 C. C. 161, 165; Regina v. Heyn, 13 Cox C. C. 403, 486, 525; S. C., 2 Ex. Div. 63, 161, 213. As the owner has voluntarily taken his vessel for his own private purposes to a place within the dominion of a government other than his own, and from which he seeks protection during his stay, he owes that government such allegiance for the time being as is due for the protection to which he becomes entitled.
From experience, however, it was found long ago that it would be beneficial to commerce if the local government would abstain from interfering with the internal discipline of the ship, and the general regulation of the rights and duties of the officers and crew towards the vessel or among themselves. And so by comity it came 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. But if crimes are committed on board of a character to disturb the peace and tranquillity of the country to which the vessel has been brought, the offenders have never by comity or usage been entitled to any exemption from the operation of the local laws for their punishment, if the local tribunals see fit to assert their authority.
The rules with regard to the exercise of civil jurisdiction in cases involving the rights of foreign vessels or persons connected with such vessels have frequently been announced by the courts in a variety of
In ex parte Newman3 a case in which foreign seamen had libeled a foreign vessel for wages, the Supreme Court of the United States said that admiralty courts will not take jurisdiction in such a case, except where it is manifestly necessary to do so to prevent failure of justice; that 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, but that the courts will not do so as a general rule without the consent of the representative of the country to which the vessel belongs, where it is practicable that the representative should be consulted.
In the case of the Carolina, a British vessel, in which an action was brought by a foreign seaman in the United States Court for the District of Louisiana to recover damages for assault and battery alleged to have been committed on the high seas, the court said:
It is undoubtedly true, as a general proposition, that an action for a personal tort follows the person, and may be brought in any foreign court. It is also true that the courts of a nation are established and maintained for the convenience of its own citizens or subjects, and if foreigners are permitted to become actors therein it is because of what is termed comity between nations. American Law Review, vol. 7, p. 417, and Daniel Webster's Works (Everett's Edition), vol. 6, pp. 117, 118. The only ground upon which a foreigner could urge a claim to become a libelant in our courts would be that it was by comity due his government that its subjects should be thus heard, and, so far as this claim could be considered as a right, it could be insisted on only by that government, and, except in cases of inhumanity or gross injustice, would disappear whenever the claimant's government took a position against it.
The court stated that the exercise of jurisdiction in this case was discretionary, and that the courts of Great Britain afforded adequate redress to the libelant. The court therefore declined to take jurisdiction.
In Patterson v. Barke Eudora," the Supreme Court of the United 3 14 Wall. 152.
4 14 Fed. Rep. 424.
5 190 U. S. 169.
atskog hell that a British vessel and its master were within the prodon of the Aat of December 31, 1898, prohibiting the payment to of advanand wages. The Court, after referring to previous Son Artation to the question of jurisdiction over foreign ves
moka konsent of this government to leave jurisdiction over „kukan afeitrs of foreign merchant vessels in our harbors to the ́s by wika, ose vessels belong may be withdrawn. Indeed, the DAN KADREX, to permit them to enter our harbors may be with446 if this implied consent may be wholly withdrawn it may A KITALOAG Upon such terms and conditions as the government sees 1: pose. And this legislation, as plainly as words can make it, II: pober these conditions upon the shipment of sailors in our harbors, ccecares that they are applicable to foreign as well as to domestic
The general principles laid down in the cases to which attention has been called are concisely summarized with citations in the following extract from the opinion of the court in the case of Ester, in which suit was brought against a Swedish steamship by a seaman to recover unpaid wages and damages for personal injury:
(1) The merchant vessels of one country visiting the ports of another for the purposes of trade subject themselves to the laws which govern the port they visit, so long as they remain. United States v. Diekelman, 92 U. S. 520, 23 L. Ed. 742; Wildenhus' Case, 120 U. S. 11, 7 Sup. Ct. 385, 30 L. Ed. 565.
(2) In the absence of treaty stipulations, the courts of admiralty have civil jurisdiction in all matters appertaining to the foreign ship while in port, and also in certain cases when the court has the vessel in its territorial jurisdiction, although the cause of action arose on the high seas, The Belgenland, 114 U. S. 355, 5 Sup. Ct. 860, 29 L. Ed. 152; Wildenhus' Case, 120 U. S. 1, 7 Sup. Ct. 385, 30 L. Ed. 565.
(3) The exercise of this civil jurisdiction, where those who are concerned are all citizens of the same foreign state and the cause of action occurred on or with regard to the ship, is not imperative, but discretionary, and the courts from motives of convenience or international comity will not take jurisdiction without the assent of the consul of the country to which the ship belongs, where the controversy involves matters arising beyond the territorial jurisdiction of this country, or relates to differences between the master and the crew, or
6190 Fed. Rep. 218.
the crew and the shipowners. In such cases on such general principles of comity, the admiralty courts of this country will not interfere between the parties, unless there is special reason for doing so, and will require the foreign consul to be notified, and although not absolutely bound by, will always pay respect to, his wishes as to taking jurisdiction. Ex parte Newman, 14 Wall. 152, 20 L. Ed. 877; The Belgenland, 114 U. S. 355, 5 Sup. Ct. 860, 29 L. Ed. 152; Patterson v. Eudora, 190 U. S. 169, 23 Sup. Ct. 821, 47 L. Ed. 1002.
(4) Where, however, special circumstances exist, such as where the voyage is ended, or the seamen have been dismissed or treated with great cruelty, the courts, in the absence of treaty stipulations, will entertain jurisdiction. The Belgenland, 114 U. S. 355, 5 Sup. Ct. 860, 29 L. Ed. 152.
(5) Where treaty stipulations exist, however, with regard to the right of the consul of a foreign country to adjudge controversies arising between the master and the crew, or other matters occurring on the ship exclusively subject to the foreign law, such stipulations are the law of the land, and must be fairly and faithfully observed. The Belgenland, 114 U. S. 355, 5 Sup. Ct. 860, 29 L. Ed. 152; Widenhus' Case, 120 U. S. 17, 7 Sup. Ct. 385, 30 L. Ed. 565.
(6) Congress has power by legislation to regulate matters affecting foreign seamen and foreign vessels and foreigners generally when within the ports of this country by making their entrance subject to such conditions as Congress may seek to impose or withdrawing its consent to permit them to enter wholly, if it see fit. Patterson v. Eudora, 190 U. S. 169, 23 Sup. Ct. 821, 47 L. Ed. 1002.
With reference to the question of the jurisdiction over American merchant vessels in foreign territorial waters, it may be said that the Government of the United States in the past has asserted in behalf of its vessels the rights which, as indicated by the judicial decisions just mentioned, are accorded to foreign vessels in waters of the United States. This Government, while conceding on the one hand that when one of its vessels visits the port of another country for the purposes of trade it is amenable to the jurisdiction of that country and is subject to the laws which govern the port it visits so long as it remains, unless it is otherwise provided by treaty, has on the other hand, on a number of occasions, made clear its view that by comity matters of discipline and all things done on board which affect only the vessel or those belonging to her and do 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 belongs, as the laws of that nation or the interests of its commerce may require."
Private vessels belonging to this country are deemed parts of its territory. They are accordingly regarded as subject to the jurisdiction of this country, on the high seas, and in foreign ports, even though they admittedly are also temporarily subject generally to the laws of such ports.
In United States v. Rodgers, a case in which the Supreme Court sustained the jurisdiction of courts of the United States to try a person for an assault committed on a vessel belonging to a citizen of the United States while such vessel was in the Detroit River and within the limits of the Dominion of Canada, Mr. Justice Field, who delivered the opinion of the court, said:
It is true,
that, as a general principle, the criminal laws of a nation do not operate beyond its territorial limits, and that to give any government, or its judicial tribunals, the right to punish any act or transaction as a crime, it must have occurred within those limits. We accept this doctrine as a general rule, but there are exceptions to it as fully recognized as the doctrine itself. One of those exceptions is that offences committed upon vessels belonging to citizens of the United States, within their admiralty jurisdiction, (that is, within navigable waters,) though out of the territorial limits of the United States, may be judicially considered when the vessel and parties are brought within their territorial jurisdiction. As we have before stated, a vessel is deemed part of the territory of the country to which she belongs.
On March 4, 1915, the President approved an Act of Congress usually referred to as the "Seamen's Act."9 The general purposes of this law evidently were the improvement of the condition of seamen and the promotion of safety of life at sea.
Whatever may be the merits of this act it can undoubtedly be said. to have aroused a good deal of criticism in foreign countries. The questions that have arisen in connection with its enforcement with regard to foreign vessels, to which it is applicable the same as to American vessels, may be said to fall into two classes, namely: (1) those
7 See Moore, Digest, II, pp. 272-362.
8 150 U. S. 249.
9 38 Stat. L. 1164.