In subjecting foreign vessels and their occupants to the operation of the local law a State is not deterred by any requirement of international law from disregarding the lawful character of acts committed abroad, as in a foreign port, when they are the proximate cause of others committed within the national domain and contrary to a statutory prohibition. No undertaking lawfully entered into abroad and contemplating performance in that domain, as by the carriage of goods thereto, will be deemed to be entitled to respect if it defies the will of the sovereign thereof. The applicability of this principle to vessels engaged in foreign commerce must be obvious.1

(b)

§ 222. Matters of Internal Order and Discipline.

Solid grounds of policy have long rendered it inexpedient for States to assert jurisdiction in matters relating to the internal order and discipline of a foreign merchant vessel, and affecting solely the ship and its occupants. Of such a character are disputes between masters and seamen, involving petty criminal offenses committed by members of a crew. Jurisdiction has in such cases generally been yielded to the authorities of the State to which the vessel belongs, and notably to consular officers.2 Opinion is divided whether the existing practice indicates the general relinquishment of a right normally possessed by the territorial sovereign, or is to be ascribed in each case to the terms of a particular agreement by which local jurisdiction is specifically surrendered. The United States has protested against the asser

1893, 27 Stat. 445, U. S. Comp. Stat. 1918, §§ 8029-8031, forbidding clauses in bills of lading relieving from liability for negligence, and from exercise of due diligence in equipping vessels, and from liability for errors of navigation,

etc.

1 See, for example, the application of the Harter Act of Feb. 13, 1893, in Knott v. Bottany Mills, 179 U. S. 69; The Germanic, 196 U. S. 589, 598. Also § 73, chap. 349, Act of Aug. 27, 1894, 28 Stat. 570, amended, Feb. 12, 1913, chap. 40, 37 Stat. 667, U. S. Comp. Stat. 1918, § 8831, with respect to trusts in restraint of import trade.

2 See, for example, Wildenhus' Case, 120 U. S. 1; Ex parte Anderson, 184 Fed. 114.

3 In Wildenhus' Case, 120 U. S. 1, the Court inclined to the view that Art. XI of the treaty between the United States and Belgium of March 9, 1880, was a mere recognition of the existing practice of nations. See, also, opinion of Mr. Cushing, Atty.-Gen., 8 Ops. Attys.-Gen., 73; Mr. Fish, Secy. of State, to Mr. Schenck, March 12, 1875, For. Rel. 1875, I, 592, Moore, Dig., II, 295; Mr. Frelinghuysen, Secy. of State, to Baron Schaeffer, Austrian Minister, Nov. 13, 1883, For. Rel. 1883, 30, Moore, Dig., II, 302. Compare Mr.

tion of jurisdiction over controversies of the class described, by local magistrates in the territory of a foreign State with which no adequate agreements had been concluded.1

It is generally understood, and the treaties of the United States frequently provide, that disorders on board of a vessel which are of a character to disturb the tranquillity and public order on shore, or concern a person not a member of the crew, are to be dealt with by the local courts.2 Those courts may, therefore, be called upon to pass upon the preliminary question whether the particular offense charged is of such a character.3 In Wildenhus' Case the Supreme Court of the United States declared that a disorder was of a kind to disturb the peace of a port, if the offense were of such gravity that it would awaken public interest on shore when it became known there, and especially if it were of a character such that its commission within the territory of any civilized State would result in the severe punishment of the offender. In that case, the stabbing and killing of a Belgian seaman by another member of the crew, himself also a Belgian, on board of a Belgian steamship moored at a dock in New Jersey was regarded as furnishing just cause for local prosecution.4

Marcy, Secy. of State, to Mr. Keenan, Consul at Hong Kong, April 14, 1856, 21 Disp. to Consuls, 567, Moore, Dig., II, 288; Opinion of Mr. Berrien, Atty-Gen., 2 Ops. Attys.-Gen., 381, Moore, Dig., II, 286; Mr. Bayard, Secy. of State, to Mr. Thompson, Minister to Haiti, July 31, 1885, MS. Inst. Haiti, II, 511, Moore, Dig., II, 300.

See, also, The Gloria de Larrinaga, 196 Fed. Rep. 590, where an American court of admiralty declined to take jurisdiction in the case of a claim under a British Shipping Act for short allowance, made by a British seaman on a foreign ship and arising in foreign waters.

1 Mr. Fish, Secy. of State, to Mr. Schenck, Nov. 8, 1873, For. Rel. 1874, 490, Moore, Dig., II, 293; Same to Same, March 12, 1875, For. Rel. 1875, I, 592, Moore, Dig., II, 295.

2 For example, Article XI of the treaty with Belgium, of March 9, 1880, declared that "The local authorities shall not interfere except when the disorder that has arisen is of such a nature as to disturb tranquillity and public order on shore, or in the port, or when a person of the country or not belonging to the crew shall be concerned therein." Malloy's Treaties, I, 97.

3 Mr. Marcy, Secy. of State, to Mr. Clay, Minister to Peru, July 18, 1855, MS. Inst. Peru, XV. 171, Moore, Dig., II. 313; Mr. Frelinghuysen, Secy. of State, to Baron Schaeffer, Austrian Minister, Nov. 13, 1883, For. Rel. 1883, 30, Moore, Dig., II, 302; Mr. Evarts, Secy. of State, to Count Lewenhaupt, Swedish and Norwegian Minister, July 30, 1880, MS. Notes to Sweden and Norway, VII, 204, Moore, Dig., II, 315.

4120 U. S. 1. See, also, Mr. Hay, Secy. of State, to Baron Fava, Italian Ambassador, July 19, 1900, MS. Notes to Italian Legation, IX, 440, Moore, Dig., II, 314; Commonwealth v. Luckness, 14 Philadelphia, 363, Moore, Dig., II, 315; Case of the German steamer, Tom G. Corpi, at Brest, 1908, Rev. Gén. XV, 439.

See Art. XXX of Regulations concerning the Legal Status of Ships and their Crews in Foreign Ports, adopted by the Institute of International Law in 1898, Annuaire, XVII, 281, J. B. Scott, Resolutions, 151.

(c)

§ 223. Civil Disputes of Seamen Arising from Their Connection with the Ship.

There has been a tendency on the part of maritime powers, such as the United States, to conclude conventions withholding from domestic courts jurisdiction in civil controversies between seamen and the masters of ships on which the former served, particularly in reference to the adjustment of wages and the execution of contracts. The scope of certain of these agreements to which the United States has become a party has been the subject of frequent adjudications in American courts.2 Question has arisen whether a particular stipulation excluding local jurisdiction should be applied when it would entail great hardship on account of the absence of a consular officer; 3 and whether also an appropriate treaty should be deemed, for constitutional reasons, to embrace the case of an American citizen. In numerous cases the terms of a convention have been acknowledged to be applicable to the circumstances of the case, and jurisdiction has been withheld.5

It may be doubted whether in the absence of an appropriate treaty, the territorial sovereign is deterred by the operation of any rule of international law from exercising through its local courts jurisdiction over civil controversies between masters and members of a crew, when the judicial aid of its tribunals is invoked by the latter, and a libel in rem is filed against the ship.

See, for example, Art. XI of consular convention with Sweden, of June 1, 1910, Charles' Treaties, 115; Art. XXIII of treaty with Spain of July 3, 1902, Malloy's Treaties, II, 1708.

2 See The Ester, 190 Fed. 216, where the decision of Smith, J., embraces a thorough discussion of previous cases; also The Rindjani, 254 Fed. 913, concerning consular jurisdiction over a wage dispute under convention with the Netherlands, of May 23, 1878. The Seamen's Act of 1915, 38 Stat. 1164, 1165, was here deemed not to apply to a contract made in Holland to be performed on a Dutch vessel, both parties being Dutch.

3 The Salomoni, 29 Fed. 534.

4 See, for example, The Neck, 138 Fed. 144, where the libelant, a seaman on a foreign vessel, was an American citizen, and was, for that reason, deemed to have a constitutional right to invoke the jurisdiction of a court of admiralty within the United States, under the facts of the case. The Court appeared, moreover, to doubt the applicability of the treaty (that with Germany of Dec. 11, 1871) to the case.

5 See, for example, The Bound Brook, 146 Fed. 160; Tellefsen v. Fee, 168 Mass. 188; The Koenigen Luise, 184 Fed. 170.

The Ester, 190 Fed. 216, 221, 223; also The Belgenland, 114 U. S. 355, where Mr. Justice Bradley declared in the course of the opinion of the Court (363): "Circumstances often exist which render it inexpedient for the court to take jurisdiction of controversies between foreigners in cases not arising in the country of the forum; as, where they are governed by the laws of the

It is to be observed, however, that American courts exercise discretion in taking or withholding jurisdiction according to the circumstances of the particular case. Their action in so doing is not to be regarded as indicative of any requirement of public international law.1

(d)

§ 224. Involuntary Entrance.

A foreign vessel forced into port by stress of weather, or by inevitable necessity, is not regarded as subject to the local jurisdiction. The involuntary entrance furnishes a ground of exemption.2 Thus the imposition of a fine upon a foreign ship compelled to put into port for such a reason is believed to lack justification.3 Likewise, goods on board of a vessel so circumstanced are not regarded as subject to the payment of duties. Exemption from payment depends, however, upon proof of the fact of the urgency of the distress. The necessity must be grave and the proof convincing [see following page for footnote 6].

6

5

country to which the parties belong, and there is no difficulty in a resort to its courts; or where they have agreed to resort to no other tribunals. The cases of foreign seamen suing for wages, or because of ill treatment, are often in this category; and the consent of their consul or minister is frequently required before the court will proceed to entertain jurisdiction; not on the ground that it has not jurisdiction; but that, from motives of convenience or international comity, it will use its discretion whether to exercise jurisdiction or not; and where the voyage is ended, or the seamen have been dismissed or treated with great cruelty, it will entertain jurisdiction even against the protest of the consul."

It may be observed that the Supreme Court of the United States has construed the Seamen's Act of 1915, chap. 153, 38 Stat. 1164, as indicating no design on the part of the Congress to assert control over aliens' contracts of shipment abroad on foreign vessels, and of advancements in pursuance thereof. Sandberg v. McDonald, 248 U. S. 185; also Neilson v. Rhine Shipping Company, 248 U. S. 205. Compare Strathearn S. S. Co. v. Dillon, 252 U. S. 348. 2 Hallet & Browne v. Jenks, 3 Cranch, 210, 219; The Short Staple v. United States, 9 Cranch, 55; The Nuestra Señora de Regla, 17 Wall. 29. See, also, Mr. Seward, Secy. of State, to Mr. Stoeckl, Russian Minister, June 4 and June 13, 1864, MS. Notes to Russian Legation, VI, 156, 157, Moore, Dig., II, 343; Mr. Bayard, Secy. of State, to Mr. Phelps, Nov. 6, 1886, For. Rel. 1886, 362, 364-365; Moore, Dig., II, 343.

3 Mr. Uhl, Acting Secy. of State, to Mr. Smythe, Minister to Haiti, May 3, 1894, MS. Inst. Haiti, III, 398, Moore, Dig., II, 349; Report of Mr. Davis, Committee on Foreign Relations, July 14, 1897, on case of Alfredo Laborde and others, Competitor prisoners, Senate Rep. 377, 55 Cong., 1 Sess., 5, Moore, Dig., II, 349; Mr. Bayard, Secy. of State, to Mr. Phelps, Nov. 6, 1886, For. Rel. 1886, 362, 364-365, Moore, Dig., II, 343.

The Brig Concord, 9 Cranch, 387; The New York, 3 Wheat, 59, 68; Opinion of Mr. Wirt, Atty.-Gen., 1 Ops. Attys.-Gen., 509; Mr. Bayard, Secy. of State, in Case of the Rebecca, Feb. 26, 1887, Senate Ex. Doc. 109, 49 Cong., 2 Sess., Moore, Dig., II, 345.

5 Declares Wheaton: "The danger must be such as to cause apprehension in the mind of an honest and firm man. I do not mean to say that there must be an actual physical necessity existing at the moment; a moral necessity

Between 1831 and 1841, there arose a series of cases where slaves on board of American merchant vessels, wrecked upon British coasts, or forced, by stress of weather or mutiny, into British ports, were liberated.1 The involuntary presence of a foreign vessel in a local port might not suffice to dissolve the existing relations between persons on board,2 or to justify the local authorities in taking affirmative steps to put an end to the existing relationship, unless the continuance thereof became a source of real disturbance to the peace of the country.3 It might, however, well be doubted whether, as Mr. Dana pointed out in relation to the foregoing cases:

The local authorities must give active aid to the master against persons on board his vessel who are doing no more than peacefully and quietly dissolving, or refusing to recognize, a relation which exists only by force of the law of the nation to which the vessel belongs, if the law is peculiar to that nation, and one which the law of the other country regards as against common right and public morals.4

In all of the cases Great Britain paid an indemnity, in those of the Comet and the Encomium, as a result of diplomacy; 5 in those of would justify the act; where, for instance, the ship had sustained previous damage, so as to render it dangerous to the lives of the persons on board to prosecute the voyage: such a case, though there might be no existing storm, would be viewed with tenderness; but there must be at least a moral necessity. Then, again, where the party justifies the act upon the plea of distress, it must not be a distress which he has created himself, by putting on board an insufficient quantity of water or of provisions for such a voyage; for there the distress is only a part of the mechanism of the fraud, and cannot be set up in excuse for it; and in the next place, the distress must be proved by the claimant in a clear and satisfactory manner. It is evidence which comes from himself, and from persons subject to his power, and probably involved in the fraud, if any fraud there be, and is, therefore, liable to be rigidly examined." Note on Case of The New York, 3 Wheat. 59, quoting from opinion of Sir William Scott in the case of The Eleanor, Edwards, 159, 160, Moore, Dig., II, 340-341.

The Eolus, 3 Wheat. 392 [see previous page for this note reference].

1 These were the cases of the Comet, 1831; the Encomium, 1835; the Hermosa, 1840; and the Creole, 1841. For a brief statement of facts of the several cases, see Moore, Dig., II, 350–352.

2 Mr. Webster, Secy. of State, to Mr. Everett, June 28, 1842, Curtis' Life of Webster, II, 106, quoted in Moore, Dig., II, 352; Mr. Webster, Secy. of State, to Lord Ashburton, British Plenipotentiary, Aug. 1, 1842, Webster's Works, VI, 303, 306, Moore, Dig., II, 353.

3 See opinion of Mr. Bates, umpire, in the case of the Enterprise, and in the case of the Hermosa, Moore, Arbitrations, IV. 4372 and 4374 respectively, Moore, Dig., II, 355 and 357, respectively.

4 Dana's Wheaton, note No. 62. See, also, Hall, 5 ed., 202, note. Compare opinion of Mr. Bates, umpire, in the case of the Creole, Moore, Arbitrations, IV, 4375, Moore, Dig., II, 358.

5 Mr. Webster, Secy. of State, to Mr. Fillmore, M. C., May 6, 1842, House Ex. Doc. No. 242, 27 Cong., 2 Sess., p. 1.