The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1860-12-20
THE PACIFIC
Commercial Advertiser.
SUPREME CnURT.---In Admiralty
MANUEL ESos ". ". W. SowLE.
ION on THE QUESTION OF JURISDrCTrox

ufrllty called n cause OF damage, brought ty the libel
LIANT fG- certain wrongs and injuries alleged by him to
have been inflicted by the ibellee.
The libel alleges that IibeIlant Is a native Of the
Western Isles that being at New Bedford, in Ameri-
ea. in November, 1857, he shipped a cabin bow on
board Of the Montreal, Nathaniel " Sowle master that
so1n AFTER sailing the said SOWle attempted L commit
s0Iomy uPonl him, which he resisted; that subsequently,,
upon the arrival Of the ship on the cOas; Of California.
he ran away from her that being at LahaiuI. island
Of Maui, the sid Sowle caused him 10 lie brought back
on board the sail ship, in which he sailed again on a
cruise 70 the North, during which the said SOwl- sue
ceeIed by threats aud his physical pOwerin committing
the crime Of sOdCmy that on arriving at Honolulu from
that cruise lbelltnt again deserted from the Montreal
and escaped ON board OF the DTon.0, IN which he sailed
70 NIngtsaki in Japan. where he was again retaken By
SoWle and fOrcibly carried back on board the Montreal.
and went North. for another cruise, during which he
was again compelled by SoBle to submit to his uunatu-
ri embraces and desires
Protesting against the jurisdiction Of the Court. an
answer Is dled which denies the material allegations Of
wrong md injury b his person, and the case proceeds
o. trial, subsequently to which the Consul Of the United
States files a protest against the jurisdiction Of the
Court, for the following causes
Ist- Libeuant and IibeIIee are citizens Of the United
States, and the vessel, under command Of the latter, Is
owned by citizens Of the Unitel States, and bears the
nag Of that country.
md. That the alleged causes of action, If any there
Re, arose on said vessel. and while on the high seas. and
beyond the jurisdiction Of his Hawaiian Majesty
Courts.
rally IN cases of this kind, and under these circumstln-
ces, TO entertain jurisdiction without the consent Of the
Representative Of the foreign Government to which the
parties belong AMI that IN this case no such consent
has been gwen on the contrary, the said Consul has
been instructed by the Diplomatic Representative Of
the United States accredited near tae Court Of his Ha-
waIian Majesty, TO respectfully enter a protest against
this Court taking jurisdiction in the case.
4th. That by the Twenty-frst Article Of the Treaty
between his Hawaiian Majesty and his Imperial Ma
jesty the Emperor Of France, ratified on the eighth
september, 1855. it Is provided that Consuls shall have
the ~erciaSire charge OF the internal order on board of
tn merchant vessels Of their nations, asi the laid con-
zuls are alone authorized to take cOguizlnce Of al.
crimes, ~mi=demeanors, and other matters Of difference
in relation 10 said internal order, which may supervenc
between the master, the officers and crew, and the local
jIliclL authorities are not to interfere unles7 by the
approval or consent Of the consuls-
5rh. That by tie parity clause of the Treaty between
the United States and this Government, the citizens Of
the United States are entitled 10 the same advantages
as are given 70 the citizens Of France by virtue Of the
Treaty with tina; Empire.
We have gwen the causes OF the protest our most de-
ILerlte AMI careful consideration. This was due TO the
distinguished source from which it emanaied, As well as
TO important principles which it involves, and the rights
Of the parties
Parsons. an eminent American jurist, in his work on
Maritime Law, ri vol, D DID, says - IL srcms to lie
well settled, after some controversy, that al admiralty
court has full jurisdiction over suits between foreigners,
II the subject matter Of the controversy is Of i maritime
nature. 1t Is however a question of discretion in any
case, and the court will not take cognizlnce of the cause,
If justice would be as well done by RENTING the parties
to their home forum" He further says that - Ii is in
cases Of seamens wages that the power Of the court Is
most frequently invoked, and il IS well settled that cog
ulLance OF a SUIT Will De taken when justice demands
that it should be done, rs when the voyage Is broken up
ut y port OF this country, or thu seaman is compelled to
desert on account Of cruel treatment, or Is entitled TO
be discharged on account Of a deviation. | Will advert
To some OF the authorities referred to by the learned
author, as we'll n to some others. In the case of lay
or vs.. Carryl, 20 Howard's Rep. GIL, the learned
Chief Justice of the Supreme Court of the United States
says - 1t Is true, that 1t II not IN every case obligatory
upon our courts Of admiralty t. enforce IL Ga lien) in
the case Of foreign ships, and the right or duty Of do
ing so is sometimes regulated with particular nations
by treaty. But a. = general rule, where there Is no
treaty regulation. and No law OF Congress to the con
trary- the admIraity courts have always enforced the
lien where IL was given by the law OF the State or ma
tiOn to which the vessel belonged. In this respect the
admiralty courts act as international courts, and enforce
the lien upon principles Of comfy. There may be, and
sometimes have been, cases IN which the court. under
special circumstances, has refused 10 interfere between
the foreign seaman and ship owner but that i always
= question Of sound judicial discretion, and does not
affect the jurisdiction Of the court In Ellison ".
Shin :. BsliOna,' Bee liz, the Court say that, "COurts
OF admiralty have n general jurisdiction in causes, civil
and maritime. The case Of seImens' wages comes
within the description of causes and this jurisdiction
has been uniformly exercised by me, as regards for
eignsrs generally" In Pugh vs. Gillian. l Calf 4Sj.
where the plaintiff was a British subject, shipped on
time. and was discharged by the master some days be-
fore the time expired. because the vessel was about TO
sail on q long voyage. II vas held that he could sue IN
our courts. though the vessel and captain were English.
In the case Of DAVIS Vs. Leslie, AbbOtt's Adj Rep l5l,
the Court say That the foreign Gbe!llnt IS regarded
a. not ent tled TO invoke the power of the court as mat
ter OF absolute right yet where the court Il satisfied
that Justice requires its interpOsiiion IN hrs favor, those
POWERS NAV be, and viii be exercised IN his behalf
The authorities. both English and American. fully
sustain the doctrine Of the power Of the Admiralty
Courts 10 entertain suits between foreigners WHILE, at
the same time, its exercise Is discretionary With the
Court. II IL i a ctse Of special necessity To prevent a
failure Of Justice, the duty l. Imposed 10 exercise the Ju-
risiiction. The {. Courtenay," Edw-Admiralty r. 25@
The - Wilhelm FREDERICK" II HOsg Admiralty Il. l3c
WiIendson ". The > Tors9met.' | Peters Admiralty
r 1876. In the Jerusalem > Gall. Il 1911 The
- Aurora" / Wheaton %. In the case OF johnson "
Doltan. I COwen. 5i3. which was al action by a seaman
against a master, both foreigners, for assault and bat
terry. committed on ship board, the Supreme Court y:
the STATE Of New York sustained the jurisdiction They
say. - our courts may take cOgnizance OF toTts commit
tel on ;he high seas On board n foreign vessel but on
principles Of comfy, as well a 10 prevent the frequent
and serious injuries that would result. they have eXer
eised n sound discretion IN entertaining jurisdiction or
not, according 70 circumstance
In the case 81 the Bark q Havana, 1t appeared the
ship was owned by a British subject living IN - John,
New Brunswick. AMI q creditor OF his who was also q
British subject and residing in the same place. Itlsitiu-
rel n suit a-1ius. him in the Courts OF Massachusetts,
and attached the vessel, then lying in the port Of Bos-
ton and afterwards recovered judgment and OK out
an execution. BY virtue Of which the vessel was sold,
and Durchasei by the execution creditor whcreupOu
the master IibeIIeI the vessel for his wageS. by virtue
of the Statute % u and - NictDTuI. which gives a len
., Z master on his ship, for hi wages and Judge
Sprague. eminent and Of long experience in Admiralty,
ruled that the District Court my, but : not bound 10
rxerci-e Jurisdiction in favor Of . British subject against
= British vessel. d. and that the lien so given may be
enforced In the AdmiraltyCOurt Of the United State
~ vol Law Reporter 100. The learned Judge adds,
,Lat yrbiIa the court will exercise Jurisdiction for the
burmese. of Justice. It viii do 50 the more readily no
ob;sction i made hy the Consul OF the nation 10 which
the vessel belongs. This Is the rule by which this
Court intends &c be governed. For the purposes OF
Justice and to prevent Its failure, we deem u IN iAPeT-
stye dutv 10 exercise jurisdiction between foreigners,
- I,Icrf1uS though that duty NAV be, and