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involving treaty rights affected by certain provisions of the act, and (2) those which, while not involving legal rights, relate to international comity and established customs of nations. Provisions of the first-mentioned class are found in Sections 4 and 16 of the Act. Section 4, which provided among other things for the enforcement of certain specified rights of foreign seamen respecting their wages, and further provided that the courts of the United States should be open to such seamen for its enforcement, was inconsistent with treaty stipulations withdrawing from the jurisdiction of local authorities wages disputes between masters and members of the crews of merchant vessels. Section 16 directed the President to give notice within ninety days of the passage of the act to foreign governments of the termination of treaty stipulations providing for the arrest and imprisonment of deserting seamen from vessels of the United States abroad or from foreign vessels in American ports. Stipulations in a score of treaties were affected by the law.”
The act was framed so that at the end of a certain period the stipulations inconsistent therewith could no longer be enforced in this country and should of course not be invoked by American Consular Officers abroad. And since practically all of these agreements did not contain provisions for partial abrogation a somewhat difficult task in adjusting conflicts between the law and the treaty provisions in question confronted the executive department of the Government except in two instances in which the treaties contained no provisions other than those affected by the law.
Statutory provisions of the second class just mentioned are found in Sections 4, 11, 13 and 14 of the act. Section 4 provides that seamen shall be entitled to receive on demand from the master of the vessel one-half of the wages which they have earned at every port where the vessel shall load or deliver cargo. Section 11 makes unlawful the payment of advance wages of seamen. Section 13 provides that no vessel (with certain exceptions) shall be permitted to depart from a port of the United States unless it has on board a crew not less than 75 per centum of which in each department are able to understand any order given by the officers of the vessels, nor unless a certain percentage of the crew “are of a rating not less than able seamen.” Section 14 of the law contains provisions relating to “life saving appliances, their equipment and the maintaining of the same.” Briefly summarized, the important international aspects of the Act of March 4, 1915, which have been pointed out, grow out of provisions thereof that affect treaty arrangements of long standing, that apparently in a measure set aside the general rule of comity under which American courts have refused to take jurisdiction in certain controversies between masters and seamen, and that run counter to laws and customs of other countries and have the effect of nullifying contracts made outside of the jurisdiction of the United States, and of compelling foreign nations to conform to the ideas of this country in matters relating to the equipment of vessels and the treatment and qualifications of seamen, some phases of which are dealt with by the London Convention for the Safety of Life at Sea.
10 Austria-Hungary, May 8, 1848, Art. IV, and July 11, 1870, Arts. XI and XII; Belgium, March 9, 1880, Arts. XI and XII; Bolivia, May 13, 1858, Art. XXXIV; China, June 15, 1858, Art. XVIII; Colombia, December 12, 1846, Art. XXXIII, and May 4, 1850, Art. III; Denmark, July 11, 1861, Arts. I and II; Great Britain, June 3, 1892; France, June 24, 1822, Art. VI, and February 23, 1853, Arts. VIII and IX; Greece, November 19, 1902, Arts. XII and XIII; Italy, May 8, 1878, Art. XIII, and February 24, 1881; Independent State of the Kongo, January 25, 1891, Art. V; Netherlands, January 19, 1839, Art. III, and May 23, 1878, Art. XII; Norway, July 4, 1827, Arts. XIII and XIV; Roumania, June 17, 1881, Arts. XI and XII; Spain, July 3, 1902, Arts. XXIII and XXIV; Sweden, June 1, 1910, Arts. XI and XII, and July 4, 1827, Arts. XIII and XIV; and Tonga, October 2, 1886, Art. X.
Some interesting questions have been raised in the courts of this country and in British courts during the war with regard to jurisdiction over vessels which have been diverted from their customary employment because of conditions brought about by the war, namely, vessels requisitioned by the governments to which they belonged and government owned vessels employed in commerce.”
11 See The Luigi, 230 Fed. Rep. 495; The Attualita, 238 Fed. Rep. 909; The Pampa, 245 Fed. Rep. 137; The Florence H., 248 Fed. Rep. 1014; The Roseric
(D. C. N. J.) decided in November, 1918; The Broadmayne (1916), L. T. Rep. 891; The Messicano, 32 L. T. Rep. 519.
In the case of The Attualita,” an Italian merchant vessel requisitioned by the Italian Government, the Circuit Court of Appeals for the Fourth Circuit held that the vessel was not exempt from suit in a court of this country. This ship, which it appears was employed in the Italian Government service at a fixed rate and remained under the control and management of the owner who paid the officers and crew, had been libeled by a Greek steamer to recover damages for loss resulting from a collision between the two vessels which occurred in the Mediterranean Sea. The contention was pressed in this case that The Attualita being under requisition of the Italian Government was immune from the jurisdiction of the courts of this country under 'principles of international law. The decision of the court appears clearly to be grounded on sound principles. It is of course well settled that aliens have free access to the courts of this country to maintain and defend their rights in cases of this character.” In the opinion of the court reference was made to the well known case of The Earchange,” in which the Supreme Court of the United States held that the public armed vessels of a foreign nation may, upon principles of comity, enter the harbors of this country with the presumed license of the government, and while there are exempt from the jurisdiction of local courts. Chief Justice Marshall in rendering the opinion of the court said that the ‘‘perfect equality and absolute independence of sovereigns, and common interest impelling them to mutual intercourse, and an interchange of good offices with each other, have given rise to a class of cases in which every sovereign is understood to waive the exercise of a part of that complete exclusive territorial jurisdiction, which has been stated to be the attribute of every nation.” It appears that he divided these cases into the following classes: (1) the immunities accorded the person of the sovereign in a foreign country; (2)
12 238 Fed. Rep. 909.
18 The Maggie Hammond, 9 Wall. 435; The Belgenland, 114 U. S. 368; The Kaiser Wilhelm der Grosse, 175 Fed. Rep. 215.
147 Cranch, 116.
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 cases.
In ex parte Newman: 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 314 Wall. 152.
4 14 Fed. Rep. 424. 6 190 U. S. 169.