The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1866-12-15

ss We understlu nj the fair import Of it, language. !;
primarily, at least. Of local application, being opera
tive generally in regard to matters arising between
the officers and crew % the foreign ship, while within
the Kingdom The criminal jurisdiction Of cur
c urls never did, either before or since the adoption
OF the Treaty, extend 10 the trial Of parties for crimes
or misdemeanors committed on board Of foreign ships
upon the high seas, because our penal laws do not
cover them, except in case Of piracy. The Treaty,
therefore, does not apply to those cases. But previ-
Gus to the adoption OF the Treaty, cur criminal juris-
diction extended 10 the punishment Of all crimes AMI
misismeanors committed on board Of foreign mer-
chant vessels while being in Hawaiian waters. To
this branch Of jurisdiction the Treaty does apply, hy
rendering its exercise dependent on the ConSuEs con
sent, or the existence Of particular circumstances
But the language Of the Treaty includes " matters Of
difference" between the master. officers and crew, in
relation TO the internal order OF the ship. giving the
article a more extended application. Matters Of DIFF
ference must include matters Of civil controversy.
Previous to the adoption Of the Treaty, our Courts
we're IN the habit Of taking coguizauce Of civil con-
trOversies between foreigners. arriving here, whether
arising er cOHfracfu or er Gcijcf0, at sea or or shore.
The exercise OF this branch of jurisdiction Is uuques-
tiOnably affected, 10 some extent, by the Treaty. We
conceive that our Courts cannot now take coguiZauce
OF any civil suit arising out of a controversy super
vening between the master, officers and crew OF n
foreign ship, in relation TO the internal order, on the
high seas or in our own waters, If the contending
parties are exclusively Of the vessels nationality,
without the consent of the Consul, if there be one
here. But We conceive that in order TO give the Con-
sui cognizance Of the controversy, or To render it
NSNSo " nav he NptiSshN u III Stutl : NuhlAE
cognizance of it. both the eOntending parties must
still be attached TO the vessel. If the complaining
party has been discharged from the ship, or if be
has been wrongfully forced 20 leave her, having r
just cause of action for any wrong done TO him while
attached TO the ship, or for wages due and unpaid,
he may maintain a suit for the same in our Courts,
if they are willing to entertain it, unless he has
bound himself by his contract OF shipment TO resort
10 no tribunals but those Of the home forum.
The present case is unlike the recent cases of Enos
rs Sowle and Vieira rs. Sowle. in this respect. that
there the hhellants were not American citizens, but
ms arc oprp5aS libellant and respondent are American
citizens. which gives idiHaT ID. That. HSj'sn' 70 the pro
test of the Consul in the present case. out, II our
view Of the twenty-irst article of the treaty with
France is sound, the sameness of nationality IN the
contending parties is not OF itself sufficient TO sustain
the protest, If either Of the other ~concomltants pre-
scribei by the treaty is wanting.
So far as the case is presented by the libel, 1t does
not appear that the cause Of action arose out OF mat
tiers pertaining to the internal order Of the ship; and
il is alleged that the libellant was wrongfuliy com
PEELED to quit the vessel, thereby terminating his
relation 10 her.
1t was argued by counsel for the libellant. and
there is great weigh. in the argument, that he is here
now in the attitude of an American citizen, not at
tnched'to any ship. claiming 10 have a right of civil
action against the respondent. who was also here
when the suit was commenced; and that, under the
provisions of the treaty between this kingdom and
the United States, the libellant has the same right to
seek redress in the Courts Of this country, as if he
were a Hawaiian subject.
As the case appears at present. we do not think we
are precluded from entertaining 1t, 10y the twenty
first article Of the treaty with France; AID we will
now consider whether or not we ought TO entertain il
without the consent of the Consul, under the circum-
stances of the case, and without reference to the
treaty. That rests, as has been repeatedly held in
this Court before: in the sound discretion of the
Court. That tbs Court, in common with Admiralty
Courts in thS(United States and Great Britain, may
exercise jurisdiction in cases like the present, we
think IS clear; and on this point we will simply refer
TO TIE numerous adjudged cases and the authorities,
cited in the recent suit of Enos Us Sowle q vol. IIa-
waiian R, 1922, and TO the judgment of the late
Chief Justice Lee, in the case of Williams Us Law
renee Ell ais. q vol. Hawaiian r, 2S5), a case much
in point in the present instance.
1t appears that Young made his contract for SER
vice ON the .4rctic at Honolulu, for one cruise only,
aud to be discharged at Honolulu when the season
closed. His contract with the ship had its inception
here, and was to have terminated here, not in the
United States, where the ship is owned. The arrival
of the ship Mt Honolulu was to terminate the voyage,
so far as he was concerned. Honolulu became to
him the home port. But, unfortunately, Honolulu
is not the home port of the snip; that is on the Allan
tic coast Of the United States, and the time when the
ship will arrive there Is wholly uncertain. FROM the
fact that n whaling voyage from thence lasts several
years, during which the ships often employ fresh
hands at our ports, from season to season, one voyage
becomes, in fact, a series OF voyages, the end OF e'ch
season being. in effect to those who engaged FOR that
season, the end of the voyage, when they are emit
tied to n settlement and the payment OF any claims
they may have against the snip or master. Such
DelDg the case. II IOtlONs tiaI tue court OF AiuIlfdlIy
here must either, in many cases, assume to exercise
its jurisdiction in suits between foreigners, or turn
complaining parties away, with the knowledge that
their claims. however just they may be, will never be
heard by q Court of justice. The Court OF Admiralty
here has, for the last fourteen years, frequently exer-
cised this jurisdiction, in the interests of commerce
and humanity, and, until within a few weeks past.
no protest against its doing so has ever, we believe.
been placed on its files by any foreign Consul resident
here.
The libellant in this case is, we understand, resi-
dent here; ne is so poor that the Court allowed him
to institute his suit without giving security for costs
upon his own jurdtOry caution. Ii the allegations
of his libel are true, he has followed the respondent
from the Ladrone Islands to this Kingdom to seek
redress; and now to refuse to entertain his complaint
and tell him be must resume his pursuit Of the ship
until he snds her in New Bedford, would, to say the
least, be extremely hard, and not consonant with
justice or equity.
The protest is, therefore, overruled, and she cause
remapded for hearing by the Justice before whom the
libel was originally filed; and the libel in rem against
the ship, will follow the same course
Mr.. Harris for the lbelaut.
Mr.. Bates for the respondent.
December Il, 1860.