The Ester
| Citation | 190 F. 216 |
| Parties | THE ESTER. |
| Decision Date | 31 July 1911 |
| Court | United States Courts of Appeals. United States Court of Appeals (4th Circuit) |
[Copyrighted Material Omitted]
N. B Barnwell and C. D. Schroder, for libelant.
Huger & Wilbur, for respondents.
This is a libel in rem against a foreign steamship, brought to recover unpaid wages to the amount of $174.55, and in addition thereto damages for personal injury to the amount of $5,000. The respondents, the owners of the ship, have intervened herein, appearing especially to raise the question of jurisdiction, and have filed a sworn petition, accompanied by affidavits and certificates, and have further filed exceptions to the libel, claiming that the matters therein stated are not within the jurisdiction of this court. Upon the libel and this petition, with the accompanying affidavits and certificates and these exceptions and the answer to the petition, a motion has been made to dismiss the cause for lack of jurisdiction, and the case has been heard upon this motion. The facts appear to be as follows: The steamship Ester is a Swedish steamship, sailing under the flag of the Kingdom of Sweden, and is owned by a corporation or company styled the Angfartygsaktiebolagat Karin, which is, and all the members of which are, citizens of the Kingdom of Sweden. This Swedish steamship, whilst lying in the port of Nordenham, in the German Empire, and destined on a voyage to Charleston, S.C., and thence to some further ports as might be deemed expedient, until it should arrive at some port in the Kingdom of Sweden, enrolled the libelant, Osterkamp. Osterkamp, it appears, signed the articles of the ship in due form and went on the ship and served in pursuance thereof. At the time of signing these articles, he was a citizen of the German Empire and under the age of 21 years, and therefore a minor by the laws of the state of South Carolina. The vessel arrived at the port of Charleston, and whilst in that port, lying at her dock at one of the wharves in that port, the libelant, while in performance of his duties on the ship, fell through an open coal chute into a coal bunker, severely injuring himself thereby, in consequence of which he was sent by the master of the ship to a hospital in the city of Charleston. While he was confined in the hospital, the vessel departed from the port of Charleston, leaving the libelant in the hospital, and after visiting various ports in the United States, returned to the port of Charleston, where she was at the time she was libeled herein.
It appears that there is no Swedish consul or vice consul or consular agent or office within the port of Charleston or the territorial jurisdiction of the district of South Carolina, and the relations between the vessel and Osterkamp have been severed.
The petition of the shipowners sets up that, the vessel being a Swedish vessel, and owned by Swedish citizens, the libelant, when he became enrolled as a seaman on that vessel, became for the time being, so long as his term of service lasted, a citizen, and subject of the Kingdom of Sweden, and that, this matter being a question of difference between the master of a Swedish vessel and a citizen and subject of that Kingdom as a seaman on that vessel, under the treaty stipulations between the United States and the Kingdom of Sweden, this court has no jurisdiction, and that, even if it had jurisdiction, as a matter of comity it will not exercise that jurisdiction where the Swedish consul protests against the exercise by the court of any jurisdiction in this case. The petition further alleges that there is a certain declaration between the government of the King of Sweden and the government of the Emperor of Germany concerning assistance to destitute seamen, which provides that whenever a seaman belonging to one of the contracting parties, after having served on board the vessel of the other contracting party, is left behind in a third state or its colonies, and the said seaman is in a condition of distress, then the government on board of whose vessel the seaman has served is bound to support him until he again enters into a ship's service or finds other employment or until he arrives in his native country, or dies. The consul for Sweden in New York certifies to the court that the matter of the adjustment of this controversy and the performance of these treaty provisions between Germany and Sweden is in course of correspondence between the consuls of those countries, and that it is the desire of the consulate that the provisions of this declaration should be availed of and that the seaman Osterkamp be returned to Germany according to the requirements of the declaration. In addition to that, there is presented to the court a letter from the Swedish minister at Washington, asking that the request of the consul for Sweden in New York be granted.
On the other hand, the German consul residing in the city of Charleston, state of South Carolina, denies that the matter of adjustment of this controversy and of the treaty provisions between Germany and Sweden is in correspondence between the consuls of the respective countries, and requests this court to take and hold jurisdiction of the cause and administer such justice and relief as Osterkamp may be entitled to upon his claim. This application of the German consul may be disregarded. When Osterkamp was duly enrolled as a seaman on a Swedish vessel, and signed the articles of employment on that vessel, he became for the time being, for all purposes of consideration by the tribunals of this country in his relations to the ship, a citizen of the Kingdom of Sweden. Ross v. McIntyre, 140 U.S. 453, 11 Sup.Ct. 897, 35 L.Ed. 581; The Marie (D.C.) 49 F. 288.
The case presented, therefore, is the case of a controversy based upon a claim of a citizen of the Kingdom of Sweden for damages received by him on a ship belonging to the Kingdom of Sweden, whilst in the performance of his duties as a seaman duly enrolled on that ship, and caused by the negligence of the master of that ship, also a citizen of Sweden.
The libel states that the injuries were caused by the carelessness and negligence of the master of the vessel, in that libelant was required and directed in pursuance of the commands of the master to pass through a dark and narrow passageway between the decks of the vessel, in the discharge of his duty, in which passageway was situated the coal chute down which libelant fell, which coal chute should have been closed, but was carelessly and negligently left open and unguarded and unlit by the master. Has this court jurisdiction of such controversy? And, if so, is that jurisdiction imperative or discretionary? And, if the latter, do the circumstances of this case call for its exercise?
The general rule of international law is stated in the Digest of the International Law of the United States, edited by Francis Wharton, and published by the government (volume 1, p. 130), to be that:
'So far as regards acts done at sea before her arrival in port, and acts done on board in port by members of the crew to one another, and so far as regards the general regulation of the rights and duties of those belonging on board, the vessel is exempt from local jurisdiction; but if the acts done on board affect the peace of the country in whose ports she lies, or the persons or property of its subjects, to that extent that state has jurisdiction.'
This rule as so stated, however, has been modified by the decisions of the Supreme Court of the United States.
In Ex parte Newman, 14 Wall. 150, 20 L.Ed. 877, the court, in the course of the delivery of its opinion (although the point was not involved in the question actually decided), states, on the question of a libel by a Prussian seaman against a Prussian vessel for wages, that admiralty courts, it is said, will not take jurisdiction in such a case except where it is manifestly necessary to do so to prevent a failure of justice; but the better opinion is that, independent of treaty stipulations, there is no constitutional or legal impediment to the exercise of jurisdiction in such a case. Such courts, may, if they see fit, take jurisdiction in such a case; but they will not do so as a general rule without the consent of the representative of the country to which the vessel belongs, where it is practicable that the representative should be consulted. His consent, however, is not a condition of jurisdiction, but is regarded as a material fact to aid the court in determining the question of discretion whether jurisdiction in the case ought or ought not to be exercised. This and the succeeding cases in which the subject has come up for an opinion in the Supreme Court of the United States appear to have established the following rules:
(1) The merchant vessels of one country visiting the ports of another for the purposes of trade subject themselves to the laws which govern the port they visit, so long as they remain. United States v. Diekelman, 92 U.S. 520, 23 L.Ed. 742; Wildenhus' Case, 120 U.S. 11, 7 Sup.Ct. 385, 30 L.Ed. 565.
(2) In the absence of treaty stipulations, the courts of admiralty have civil jurisdiction in all matters appertaining to the foreign ship while in port, and also in certain cases when the court has the vessel in its territorial jurisdiction, although the cause of action arose on the high seas. The Belgenland, 114 U.S. 355, 5 Sup.Ct. 860, 29 L.Ed. 152; Wildenhus' Case, 120 U.S. 1, 7 Sup.Ct. 385, 30 L.Ed. 565.
(3) The exercise of this civil jurisdiction, where those who are concerned are all citizens of the same foreign state and the cause of action occurred on or with regard to the ship, is not imperative, but discretionary, and the courts from motives of convenience or international comity will not take...
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