Polynesian. [volume] (Honolulu [Oahu], Hawaii) 1844-1864, 1860-12-15
Ghe polpnesian.
SUPREME COURT.---In Admiralty.
MANUEL ENos vs. n. W. SOwLE
DECISION ON THE QUESTION OF JURISDICTION


DECISION on THE QUESTION OF JURISDICTION
ALLEN, CRIEF JUsTICE-This is a libel for marine
trespass, what is the technical language of ad
miraty called cause of damage, brought by the libel
liant for certain wrongs and injuries alleged by him to
have been inflicted by the hbeee.
The libel alleges that libellant is a native of the
Western Isles that being at New Bedford in Ameri-
ca, in November, 1857, he shipped as cabin boy on
board of the Montreal Nathaniel w. Sowe master that
after sailing the said SOwle attempted t. commit
sodomy upOn him. which he resised that subsequently,
upon the arrival of the ship the coast Of California,
he away from her that being at Lahaina island
of Maui, the said SOwe caused him TO be brought back
board the sail ship, in which he sailed again
cruise to the North during which the said Sowle
ceeded by threats and his physical pOwerin committing
the crime of sodomy that arriving at Honolulu from
that cruise lbelant again deserted from the Montreal
and escaped board of the Droo, in which he sailed
to Nangasaki in Japan where he again retaken by
SOwe and forciby carried back board the Montreal,
and North for another cruise, during which he
again compelled by SOwe to submit to his unnatu
| raj embraces and desires.
Protesting against the jurisdiction of the Court,
answer is filed which denies the material allegations of
wrong and injury to his person. and the proceeds
to trial. subsequently to which the Consul Of the United
States files protest against the jurisdiction of the
Court, for the following causes:
lst. Libelant and hbeee citizens of the United
States and the vessel under command of the latter is
owned by citizens OF the United States and bears the
flag of that country.
Ind That the alleged causes of action if any there
be- said vessel and while the high and
beyond the jurisdiction of his Hawaiian Majesty's
Courts
Sd. That it has not been usual for Courts of Admi-
rally in Of this kind, and under these crcumstan
ces entertain jurisdiction without the of the
Representative Of the foreign Government which the
parties belong and that in this snch
has been given on the contrary, the said Consul has
been instructed by the Diplomatic Representative of
the United States accredited the Court of his Ha
waiian Majesty to respectfully a protest against
| this Court taking jurisdiction in the
4th That by the Twenty first Article of the Treaty
| between his Hawaiian Majesty and his Imperial Ma
iesty the Emperor of France, ratified on the eighth
September, 1885, it is provided that Consuls shall have
the exclusive charge of the internal order board of
the merchant vessels of their nations, and the said
suls alone authorized to take cOgnizance of all
crimes, msdemeanors and other matters of difference
in relation to said internal order, which may superyene
between the MASTER the officers and and the local
judicial authorities not TO interfere unless by the
approval or consent of the consus.
9Th. That by the parity clause of the Treaty between
the United States and this Government the citizens of
the United States entitled to the advantages
given to the citizens Of France by virtue of the
Treaty with that Empire.
We have given the of the protest most de-
berate and careful consideration. This due to the
distinguished source from which it emanaed, well
i
of the parties.
Parsons. eminent American jurist in his work on
Maritime Law, I'd vol, p 543, says: " 1t seems to be
well settled after controversy, that admiralty
court has full jurisdiction suits between foreigners
if the subject matter of the controversy is of maritime
nature. 1t is however question of discretion in any
and the court will take eOgnzlnce Of the cause
if justice would be well done by remitng the parties
to their home FORUM He further says that ' Ii is in
cases of seamens wages that the power of the is
liv aud - fbafa
nzance of suit will be taken when justice demands
that it should be DONE when the voyage is broken up
at port of this country or tn seaman IS compelled to
desert Of cruel treatment, Is entitled TO
be discharged account of deviat, will advert
of the authorities referred TO by the learned
author, well TO Others. In the 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 it is not in every obligatory
upon courts of admiralty enforce t Ca lien in
the of foreign ships, and the right duty of do
ing is sometimes regulated with particular nations
by treaty. But as general rule, where there IS no
treaty regulation, and law of Congress to the
rary the admiralty courts have always enforced the
lien where it given by the law Ot the State or
ton which the vessel belonged In this resnect the
admiralty 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 interfere between
the foreign and ship owner but that is always
question of sound judicial discretion and does not
affect the jurisdiction of the COURT. In Ellison
Ship Bellona' Bee III, the Court say that, Courts
Of admiralty have general jurisdiction in causes, civil
and maritime. The case of seamens' wages comes
within the description of causes and this jurisdiction
has be n uniformly exercised by me, regards for
eigners generally" In Pugh Gillau, Calf 4S5,
where the plaintiff was a British subject, shipped on
time and discharged by the master days be-
fore the time expired, because the vessel about to
sail long voyage it was held that he could sue in
our courts though the vessel and captain English
In the of DAVIS Leslie, AbbOtts Ad Rep. 1871,
the Court say THAT the foreign ibeant is regarded
entitled to invoke the power Of the court mat
of absolute right yet where the is satisfied
that justice requires its nerpostOn in his favor, those
powers may be- and will be exercised in his behalf
The authorities, both English and American, fully
sustain the doctrine of the power of the Admiralty
Courts to entertain suits between foreigners while, at
the time its exercise is discretionary with the
Court Ifit is case of special necessity prevent
failure of justice, the duty imposed to exercise the u
risdiction The Courtenay Eiw. Admiralty X. 239.
The &c Wilhelm Frederics.' Hogg Admiralty X. l3S.
WilendsOn VS.. The " TOrsomet,' l Peters Admiralty
R. l96 In the "Jerusalem," 2 Gall. R. 1911. The
/" Aurora Wheaton SO. In the of Johnson
Doltan. Cowen, 543. which action by seaman
against master, both foreigners for assault and bat
terry, committed on ship board, the Supreme Court of
the State of New York sustained the jurisdiction They
say, may take cognizance of tOrts commit
ted on the high seas on board foreign vessel but
principles of comfy rs well to prevent the frequent
and serious injuries that would result they have
csed sound discretion in entertaining jurisdiction or
not, according to circumstances
In the of the Bark HAVANA" it appeared the
ship was owned by British subject, living in St John,
New Brunswick, ana n creditor Of his who also
British subject and residing in the place. insttu
ted suit against him in the Courts of Massachusetts,
and attached the vessel then lying in the port of Bos
ton and afterwards recovered judgment and toOk out
an execution by virtue of which the vessel was sold,
and purchased by the execution creditor whereupOn
the libeed the vessel for his wages by virtue
of the Statute of II and 1S Victoria which gives lien
to master on his ship, for his wages and Judge
Sprague eminent and of long experience in Admiralty,
ruled that the District Court may, but is not bound
exercise jurisdiction in favor of British subject against