A Treatise on the Law of Shipping and the Law and Practice of Admiralty

land, respecting stipulations in the shipping articles preventing the seamen from suing save in the home port. They have no application, if the voyage is broken up in a foreign country. 1 Our courts, it would seem, go somewhat farther than the English courts in requiring the assent of the minister or consul of the foreign country to which the parties belong;2 and some recognition on his part of the court is usually required. His assent cannot have anything to do with the question of jurisdiction, for the reasons that we have already stated, but it becomes essential in another point of view. For the court is not obliged to take

1 Bucker v. Klorkgeter, Abbott, Adm. 402. The case of Aertson v. Ship Aurora, Bee, 161, which is sometimes cited to the point that the court will in no case interfere where the shipping articles stipulate that all disputes shall be regulated according to the law of the country to which the vessel belongs, was decided on the ground that the libellant had made out no case for relief.

* In Davis v. Leslie, Abbott, Adm. 123, 134, after stating the English rule, Judge Betts said: "But in the courts of the United States, this precautionary condition is not required; and jurisdiction will ordinarily be exercised, if the voyage has been terminated by full completion or abandonment, or if the contract of hiring is dissolved by the wrongful act of the owner or master." But in The Infanta, decided in April of the same year, Abbott, Adm. 263, 268, the same learned judge said: "It is expected that a foreign seamen seeking to prosecute an action of this description in the courts of this country, will procure the official sanction of the commercial or political representative of the country to which he belongs; or that good reason will be shown for allowing his suit, in the absence of such approval." The language of Mr. Justice Grier, in Gonzales v. Minor, 2 Wallace, C. C. 348, is much to the same effect. Without deciding whether the court would hear any case which was prosecuted without the consent of the consul, the learned judge said: "But when the court does entertain such cases without the request of the representative of the government, they will require the libellants to exhibit such a case of peculiar hardship, injustice, or injury, likely to be suffered without such interference, as would raise the presumption of a request, because it is in fact conferring a favor on such foreign state." And in Hay v. Brig Bloomer, U. S. D. C. Mass., March, 1859, Sprague, J., said: "The usual course in the case of a libel by a foreign seaman against his vessel, is to direct the clerk to inform the consul of the government of the pendency of the suit, that he may take such notice of it as he thinks proper; and, unless there were strong circumstances in the case, the court would not proceed in rem against a foreign vessel, without the assent of the commercial representative here of the foreign government of the country where she belonged." See also Lynch v. Crowder, U. S. D. C. New York, 12 Law Rep. 355. In The Barque Havana, 1 Sprague, 402, as the accounts depended somewhat upon English law and usages, the aid of the British consul, as assessor, was invoked.

jurisdiction in any suit between foreigners, and does so for one of two reasons, either to protect its own citizens, as where foreigners are discharged upon our shores, or on account of the comity of nations. In this latter case, the consent of the accredited minister of the foreign country is of importance. If he expressly sig nifies his dissent, this is equivalent to an avowal on the part of the foreign government that they have no desire that our courts should exercise jurisdiction, and of course, no principles of comity require it. And a statute expressly providing that, except in certain cases, seamen shall not sue in a foreign country, would have the same effect.1

In one case, the libellant, an American citizen, had been hired in Boston for a voyage in an English registered vessel with an English master, from Boston to St. Jago and back to a port in the United States. The voyage was performed and the crew discharged in Boston. An action was commenced in a cause of personal damage, and the English consul filed a protest to the jurisdiction of the court, setting forth that the vessel was a British vessel, and the commander a British subject. Also, "that an investigation of some of the alleged causes of damage must call in question official acts and conduct of a British functionary in regard to British subjects, for which he is responsible only to his own government." Mr. Justice Curtis overruled the protest, and, on the merits, affirmed a decree in favor of the libellant.2

Jurisdiction has also been sustained of a suit brought by an alien against the consul of his nation, who was also an alien, and who resided in the district, to recover the amount of official fees improperly exacted.3

1 Hay v. Brig Bloomer, U. S. D. C. Mass., March, 1859. The court seem to rely in this case on the statutes of the 7th & 8th Victoria, c. 112, in 1844, and the 13th & 14th Victoria, c. 93, § 94, in 1850. No notice seems to have been taken of the 17th & 18th Victoria, c. 104, § 190. But see Roberts v. Knights, 7 Allen, 449.

Patch v. Marshall, 1 Curtis, C. C. 452.

3 Lowry v. Lousada, U. S. D. C. Mass., Lowell, J., 1 Am. Law Review, 92.

CHAPTER VI.

OF THE JURISDICTION OF THE ADMIRALTY OVER PROCEEDS IN THE REGISTRY.

WHEN a vessel or other property against which a suit is brought is sold, and the proceeds brought into the registry, the power of the court to distribute these proceeds is unquestioned, but the right of the court to decree that third persons, who could not have proceeded against the property in rem, may receive a proportion of the proceeds of that property to satisfy their claims against the owner, does not seem to us to be clearly settled on principle, if it is on authority, and the growth of the power of the admiralty courts, in this particular, is to be attributed to a desire, on their part, to mitigate the hardships imposed on material men by the jealousy of the common-law courts.

Thus in England, prior to the passage of a late statute, material men could not enforce their lien against the vessel in admiralty; but at one time they were permitted to receive on their petition the amount due to them from the surplus proceeds in the registry.1 The power of the court to decree payment out of the proceeds in such a case, when the payment was opposed by the owners, was soon afterwards denied.2 And although the authority of this case was denied and the old rule maintained by Sir John Nicholl, a short time afterwards,3 yet his decision was reversed by the Privy Council, on the ground that there was no difference between the right

1 See cases cited 3 Hagg. Adm. 148, note. In most, if not in all of these cases, however, no appearance was made in behalf of the owners. In The John, 3 Rob. Adm. 288, the court decreed, in the case of a foreign ship, that a material man might have payment of the proceeds in the registry, but denied the right to a general creditor of the owners, on the ground that the nature of the accounts rendered his demand more fit for a court of chancery. The court said: "The court of admiralty would not attempt to interfere, where the demand itself is the subject of a dispute which the powers of a court of equity are alone competent to settle.

of action against proceeds, and that against the thing itself, where the claim is opposed by the owner, or by a person claiming under him, as a mortgagee in possession. And a mortgagee, not in pos session, has also been denied a share of the proceeds.2 But where a vessel, which had been seized by the sheriff on execution, was taken by the officers of the court of admiralty, and sold by order of that court, and the sheriff petitioned that the balance of the proceeds after the judgment in the admiralty court had been satisfied, should be paid over to him, the Privy Council, on appeal, decreed that it should be done in preference to paying the balance to the owner.3

The power of the admiralty court to adjudicate between rival claimants to the balance of proceeds in the registry after satisfying liens, has been asserted in England by the House of Lords in a well-considered opinion.*

In this country a liberal policy has been pursued, and the general principle has been laid down,,that where proceeds are rightfully in the possession and custody of the admiralty, "it is an inherent incident to the jurisdiction of that court to entertain supplemental suits by the parties in interest, to ascertain to whom those proceeds rightfully belong, and to deliver them over to the parties who establish the lawful ownership thereof." 5 It is not,

1 The Neptune, 3 Knapp, P. C. 84. This decision was followed in the case of The New Eagle, 2 W. Rob. 441, where the court refused the petition of one who alleged that he had advanced a sum of money for the service of the vessel in the payment of seamen's wages, etc., and ordered the proceeds to be paid to the mortgagees. Dr. Lushington, referring to the case of The Neptune, said: "After that decision, it is impossible to make a distinction between the proceeds and the ship itself."

2 The Portsea, 2 Hagg. Adm. 84; The Exmouth, id. 88, note.

The Flora, 1 Hagg. Adm. 298. This case is generally cited as an authority to the point, that a judgment debt in a common-law court may be proved against the proceeds in admiralty. And the authority for this inference is the remark of the court that," although the court of admiralty cannot enter into the contracts of general creditors, yet it may be bound to take a judgment on record as a debt.” The decision seems, however, to have rested mainly on the ground that the right of the sheriff against the proceeds, on an attachment, was not lost by a sale under the admiralty court, its judgment being satisfied.

Place v. Potts, 5 H. L. Cas. 383, affirming the decision of the Exchequer Chamber, 10 Exch. 370, which affirmed the decision of the Court of Exchequer, 8 Exch. 705. See also The Dowthorpe, 2 W. Rob. 73.

Andrews v. Wall, 3 How. 568, 573, per Story, J.

however, to be understood that in this country the general creditors of the owner may, by petition, claim the proceeds in the registry, but the right is limited generally, at least, to those whose debt "is either of itself or in its origin a lien on the ship, or other thing out of which the moneys were produced." 1

Where the lien is waived by intendment of law,2 or is lost by a neglect to enforce it within the proper time, it has been held that the claim may be enforced against the proceeds. But some courts have gone further, and it has been held that after the liens are all satisfied out of the proceeds of the sale, the surplus funds remaining in court are subject as against the owner to the claim of the master, although he can only sue in personam for wages. And in another case, a stevedore, who, we have seen, cannot sue either in personam or in rem,5 was allowed to have his claim paid out of the proceeds after all other claims were satisfied. It has also been held that the admiralty will take jurisdiction in matters of account between part-owners in respect to the surplus proceeds; 7 but this doctrine, we think, is not supported on principle or on authority.

No distinction seems to be made in this country between the right of a mortgagee in possession and one who is out of possession, but the proceeds are given to either in preference to the owner or a general creditor, on the ground that the mortgagee has a lien at law.8

1 Gardner v. The Ship New Jersey, 1 Pet. Adm. 223, 226. Zane v. The Brig President, 4 Wash. C. C. 453.

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A Treatise on the Law of Shipping and the Law and Practice of Admiralty, Том 2