Polynesian., 1861-12-14
Ghe Aolpnesian.
SUPREME COURT.
In AdmiralIy.---At Chambers.
LIN A. WARREN ct ais Us. Bark Bsnjami

FRANK RuSh, FISH, MGSter.-DECIsIoN.
Before JUSTICE ROBERTSON.
This is libel for mariners wages, filed by F.
A. Warren, VIM. S. Beckwith, and George Ed
wards, late frst second, and third mates respect
lively, on board Of the American whaling bark Ben
jamin Rush. The libel sets forth that in the
month of January last, the libellants shipped at
Honolulu for service on the Benjamin Rush, War
ren q. Fish Master, for cruise to the North Pa
cific Ocean, Warren first mate, at the thirtieth
lay share, Beckwith second mate, at the for
tieth lay and Edwards third mate at the fftieth
lay; that the libellants performed their duty ac-
cordingly during the season, and that the ship
rived back at the port of Honolulu on the 9TH No
vember, bringing 81 1886 gallons whale oil, l5,340
gallons Humpback oil, ,696 gallons sperm oil,
and IA, 900 pounds whalebone, as the proceeds of
the cruise. The libellants claim that they are
entitled to be paid their respective shares as
above stated, the oil and bone being valued at
the American consular rates, and that they have
demanded payment from Captain Fish, and from
the agent of the owners in Honolulu.
Messrs. Wilcox, Richards Il Co., merchants in
Honolulu, and agents of the owners, having full
control of the business of the vessel, appear as
claimants and respondents. In their answer they
admit the contract of shipment set forth in the IL
BEL and the service performed by the several IL
bellantS, and that the lays shares to which the
libelants entitled correctly set forth in the
LIBEL also the quantity of oil and bone procured
during the cruise, but deny that the bellant War
rem has failed to procure payment of his wages or
that the libellants Beckwith and Edwards ever
made any demand for their wages upon Captain
Fish, or upon any other person having authority
in the matter. They further aver that it is the
custom to pay all foreign seamen, from American
whaleshipS at the U. 5. Consulate; that few days
before service of process they had received notice
from the Consulate to 60 there and settle with
Warren; that Mr.. Wilcox went there and paid,
as the custom is on the table of the Consulate all
the wages claimed for Warren, and that such wages
are at present in the hands of the Consul, subject
to the order of Warren. so faf is known to the
respondents. And, further, that the libcants
have not procured their lawful discharge from the
vessel, and therefore have no right to appear in
this Court and sue for their wages.
The lbellants filed replication traversing sew
eral of the allegations of respondents answer, but
it is unnecessary to recaptulate the several points
in detail.
A protest against the Court assuming jurisdic-
ton in this cause filed by the Consul of the
United States for Honolulu, upon two grounds
therein set forth, viz Firstly, that the libeIlans
being citizens of the United States, and still at
| tached to the bark Benjamin Rush, which is an
American vessel, the Consul has the exclusive
jurisdiction of the matters and things complained
of in the libel by virtue of the 2lst Article of the
| treaty between this kingdom and France
secondly LndI the comfy WHICH exists between
friendly nations should prevent the Hawaiian courts
from entertaining Jurisdiction in cases of claims for
wages against the vessels of friendly foreign ma
ton, especially where such foreign nation has
duly accredited agent here, charged with the duty
of taking cognizance of all matters of difference
| between the masters of such vessels and their
| crews.
This protest is substantially similar to those FL
| ed by the late acting U. S. Consul Mr.. F. l..
/ Honkc in .ha IF EnnS vS So,vla and in hat
of Young VS.. Phillips, which were overruled by the
full court after mature deliberation. The protest
IN this likewise overruled, before the hear
| ing of the proceeded with, the court
stating, however, that if anything should be dis
closed during the progress of the trial, which in
the opinion of the court, should induce it to decline
jurisdiction, the suit would be dismissed 1t may
| be we'll to state here, briefly, the reasons which
led the Court to overrule the Consular protest in
the present case. And first, as touching the ap-
| plication of the 2lst Article of the Treaty with
| France The extent to which, in the opinion of
the Supreme Court, the provisions of that Article
limit the jurisdiction previously claimed and exer-
cised by the Hawaiian Courts is pretty clearly set
forth in the decisions rendered in the cases of End
us Sowle, and Young Us. Phillips already referred
to. But there appears to be slight misapprehen-
sion as to the meaning of the language used by
| the Court, in the case of Young Phillips, in
regard to its hesitation to entertain jurisdiction, in
suits by foreign seamen, where such seanen are
still I" attached to the vessel" The Court in u.s.
ing that language, did not use it in a technical
sense, but as it would be used in common parlance,
as meaning seamen whose term of service had not
yet expired, and who still &c attached to the
vessel - by their shipping contract. That such
was the meaning of the Court is evident, from the
fact that Young, whose libel was then entertained
by the Court although by implication of law dis
charged from his contract by the wrongful act of
the master, and so regarded no longer ' attach
ed to the vessel" had not been formally discharg
ed before United States Consul. The lbellants
in the present case are no longer attached to the
vessel within the meaning of the decision in
| Young Us. Phillips. After the expiration of the
eight " lay days" stipulated for in their contract,
| counting from the date of the ships arrival in
port they were no longer attached TO that vessel,
by contract for service. That contract was then
| determined by its own terms, and the libellants
could not thenceforth be arrested, under treaty
stipulations, upon the Consul's requsition, as
men owing service to the Benjamin Rush.
| But further, and what is more to the pcint the
2lst Article of the Treaty with France, in giving
exclusive Jurisdiction to the Consul, over matters
of difference" arising between the masters, Off
GERS and crews of the ships of his country, where
the contending parties are ell of the ships nation
atty expressly confines that jurisdiction to mat
tiers relating to the Internal order " board of
such ships Now, the cause of difference which
gave rise to this suit mas not the most remote con-
nection with the " internal order," or government,
on board of the Benjamin Rush, nor with the reg
ulation of the station or duty of any one bound to
that vessel by contract for service master, Off
Ger or seaman.
1t is clear, therefore, that the question of jurs
diction is not affected by the provisions of the
French treaty. but stands precisely if that treaty
had never existed. But the Consular protest takes
the ground that in that view of the case this
court ought not to exercise jurisdiction in a suit
between American citizens, brought to recover wa
ges claimed from an American vessel. We have
so often had occasion to explain view upon this
subject, that it may seem superfuous to say more
in this case than that, in the opinion of the court,