Year: 1860

ELIAS You've VS.. WILLIAM PHILLIPS.


JUSTICE ROBERTSON delivered the decision on the
question of jurisdiction, as follows:


Elias Young filed two libels in Admiralty, before one
of the Justices of this Court the first being libel an
eSOaam, against William Phillips, master of the whale
ship Arctic, in cause of damage and the other IL
bel az rem against the ship Arctic, for wages.


Counsel for the respondent moved the Court to dis
miss the bes the ground that the Court has no u-
rsdcton over either without the approval or con-
sent of the Consul of the United States at this port by
of the provisions of the 2st Article Of the Treaty
with France and the 10th Article of the Treaty with
the United States of America The Justice overruled
the motion, holding that the Court does possess and
may exercise jurisdiction in suits like the present
WhereupOn an appeal was taken to the full Court


Before the case up for argument on the appeal
the Consul of the United States for Honolulu filed a
protest against the Court proceeding the cause which
protest 1t understood should be held applicable to
the suit perSoRam if it should be overrued in that
case, it could not prevail in the other The substance
OF the protest be comprehended grounds of
objection, viz firstly that the ship Arctic is an Amer
can vessel, owned by citizens of the United States that
both the parties tgant citizens of the United States
that the alleged of action said vessel
while on the high and that it is not usual for
Courts of Admiralty, i'll of this kind and under
similar circumstances to entertain jurisdiction without
the consent of the representative of the country to
which the parties belong, which in this expressly
refused: Secondly, that by the 2lst Article of the
Is
shall have the ercsoe charge of the internal order
board OF the merchant vessels of their nations and they
are alone authorized to take cognzance Of all crimes,
misdemeanors, and other matters of difference which
may supervene in relation to said internal ORDER and
the local authorities not to Interfere therein unless
by consent of the Consul and that by virtue of the ID
and 10th Articles of the Treaty with the United States,
the Jurisdiction and privileges guaranteed to the Con-
suls and subjects of France belongs by parity the
COnsuls and citizens of the United States.


ul'S han in fa,v that
under the general maritime law, usually administer
ed, the Court ought not to exercise jurisdiction in this
case without his consent and that in view of the Dist
Article of the Treaty with France, cannot exercise
jurisdiction without such CONSENT which is refused
In examining and deciding upon the question which
Is thus ralse must take the presented by the
allegations of the libel, answer having been put in
by the respondent evidence given before the Court
We note this position because, while the libel may show


pTtDlG tdcte case for jurisdiction, the evidence
might subsequently, show that the in fact in
which ought to decline, do possess, jurislc
ton.


The libelant alleges that in the spring of 1859 he
shipped at Honolulu board of the Arctc, as ships
carpenter, for whaling the North and to
be discharged at Honolulu at the end of the
that short time after sailing from Honolulu, being at
the Island of Saypan, of the Ladrone Islands, the
respondent obliged him to leave the ship and go
shore, the beant being at the time unwe but not in


manner dangerous to himself others that the
spOndent caused him to be placed shore without
clothes other than those at the time upon his person,
although he had suicency of clothes board of the
ship, which he not allowed to take away thlt he
purpOsely landed at distance from the inhabited
parts of the Island that he unacquanted with the
manners language of the inhabitants that Saypan
is not place of frequent for vessels and that he
obliged to remain there for about year, during
which time he suffer- great hardship.


We will first examine the proposition that the Court
cannot in view of Treaty stpuatons, entertain this suit
without the of the Consul of the United Staes
because if that position is sound the libel must be dis
missed. The 2lst Article of the Treaty with France
reads follows " In everything that the po


lice of the port the ading and discharging of vessels
the safety of merchandise, property and ods the sub
ectS of the two countries shall be respectively subject
TO the laws and statutes of the territory Nevertheless
the respective Consuls shall be exclusively charged
with the internal order board of the merchant
sells of their nation, and shall alone take eognizince of
all the crimes, msdemeanors, and other matters of diff
ference relation to said internal order, which many
supervene between the master, the officers, and the
crew, provided the eontendng parties be exclusively
French or Hawaiian subjects, and the local authorities
shall not be allowed therein t, interfere unless by the
approval consent of the Consuls, in where
the public peace and tranquility disturbed and en-
dangered'


Now, the question is to what extent has His Majes
ty by asserting the provisions of this Article ited
the exercise Of the jurisdiction possessed by his Courts
of Justice at the time the Treaty ratified We say
limited, because this Article of the Treaty has not in





which Courts might have rightfully exercised pre-
yOus to its adoption, but has simply made the exercise
Of jurisdiction in certain cases, to depend upon the ap
proval or consent Of the Consul if there is here,
upon the occurrence of a which disurbs and en-
dangers the public peace. 1t is equally true then, in
any where right take jurisdiction is affected
by the provisions Of this Article il would be in any
case governed by general maritime law in which the
Court might tae jurisdiction at its discretion, that the
approval of the foreign Consul does confer urisdc
hutS lv IN fha aOf
the jurisdiction which is Inherent in our Courts (The
GOlubchck, w. Rob. 143) That this is true, is pro-
we'd by the provision of the Treaty ITSELF which guaran
tees the right of the local authorities to interfere in
ses OF disturbance of the public peace without the Con-
suls consent.


At the time of the ratification of the Treaty with
France, the jurisdiction possessed by this Court
Court Of Admiralty, extended 60 to all of Admiral
ty and maritime jurisdiction" Constitution, Article
S4) and the jurisdiction of our Courts generally ex-
tended like that of other independent States, to all
persons and property for the time being within the ter
ritoral limits of the Kingdom, whether ashore ahoat
with the exceptions made by the law of nations Our
criminal jurisdiction to try and punish for offences be-
ing co-exTensive with right of penal legislation
embraced the power to punish all crimes and misde
meanors committed within the Kingdom, whether on
board of ships on shore and on board Of Hawaiian
vessels the high And our civil jurisdiction ex
tended TO all suits against parties whose persons pro-
perty found here, eesOeper the of action
might have arisen the exercise of jurisdiction in civil
suits purely between foreigners being discretionary, and
not compulsory unless made so by Treaty.


How far, then, has this jurisdiction become affected
by the 2lst Article of the Treaty with France The
application of our territorial laws both criminal and
civil. foreign ships and subjects, being within Haw
allan ports aud of the right to enforce those laws
by own Courts and our own modes of trial, is still
clearly preserved :. in everything that concerns the
police of the port the ladng and dschargng of vessels
the safety Of merchandise, property and goods. This
doubt, includes quarantine laws, harbOr regulations
custom house regulations, and the like well penal
laws for the protection Of merchandise and other pro-
pery. But the right of the local tribunals to enforce
the territorial laws in cases of crimes, msdemeanors
and other matters of difference in relation to the inter