THE TAIGEN MARU

• Decision Date: 19 November 1934
• Docket Number: No. 7192.,7192.
• Citation: 73 F.2d 922
• Parties: THE TAIGEN MARU. VAN DER WEYDE v. OCEAN TRANSPORT CO., Limited, et al.
• Court: U.S. Court of Appeals — Ninth Circuit

73 F.2d 922 (1934)

THE TAIGEN MARU VAN DER WEYDE v. OCEAN TRANSPORT CO., Limited, et al.

No. 7192.

Circuit Court of Appeals, Ninth Circuit.

November 19, 1934.

Lord & Moulton and Wm. P. Lord, all of Portland, Or., for appellant.

Lane Summers, and Hayden, Merritt, Summers & Bucey, all of Seattle, Wash., for appellees.

Before WILBUR, SAWTELLE, and GARRECHT, Circuit Judges.

SAWTELLE, Circuit Judge.

On April 18, 1931, appellant herein filed this libel in rem against the steamship Taigen Maru, her tackle, etc., based upon a claim for personal injuries alleged to have been suffered by him on May 16, 1922, while aboard the respondent vessel on the high seas. The appellant at the time of his alleged injuries was a subject of Her Majesty, the Queen of the Netherlands, and a member of the crew, under Norwegian articles signed by him at Astoria, upon the respondent vessel (then the steamship Luise Nielsen) of Norwegian nationality and under the ownership of B. Stolt Nielsen & Co., Inc., a corporation of the Kingdom of Norway.

C. Stang Anderson acting consul of Norway at Seattle was allowed to intervene and file exceptive allegations in which he protested against the court taking jurisdiction on the ground that it was a dispute between a member of the crew of a Norwegian vessel and the master and owners of said vessel and according to the ship's articles and the applicable law of Norway was a dispute to be decided by the Norwegian consul subject to appeal to the courts of Norway.

The District Court entered an order dismissing the libel which reads in part as follows:

"* * * The court having given consideration to the protest against jurisdiction being entertained in the above entitled cause, and libelant's response thereto, and having concluded that, in the exercise of its discretion, the court should not hear said cause upon the merits:

"Now Therefore, it is hereby ordered:

"(1) That said cause be, and the same hereby is dismissed. * * *"

A former libel was filed in the District Court of the United States for the District of Oregon on September 15, 1922, against the steamship Luise Nielsen based upon the same cause of action set forth in the libel in the case at bar. The vice consul of Norway at Portland, Or., was permitted to intervene in that suit and file exceptive allegations in which he protested against that court taking jurisdiction on the same grounds urged in the present suit. Amended pleadings were thereafter filed and on June 2, 1924, the District Court entered an order dismissing the libel in accordance with the prayer of the vice consul of Norway.

Between the time the first libel was dismissed by the District Court of the United States for the District of Oregon and the time the present libel was filed, the owner of the steamship Luise Nielsen sold that steamship to a Japanese company and her name has been changed to steamship Taigen Maru. However, the former Norwegian owner in making the sale to the present Japanese owner obligated itself to deliver said steamship "free from all debts and incumbrances," as a result of which obligation the former Norwegian owner is interested in the adjudication of any claims against said vessel in accordance with the Norwegian law in effect at the time such claim accrued. For this reason, C. Stang Anderson, acting consul of Norway, claims to be officially concerned.

On this appeal appellee argues, apparently for the first time, that the decree of the lower court dismissing the libel should be affirmed because the court was without jurisdiction to entertain the suit, and that it is not a case in which the District Court has even discretionary power to entertain the suit. It is well established that the question of jurisdiction of the trial court may be raised at any time and is not waived by failure to raise the issue in the trial court and, even in the absence of the question being raised by the parties, it is the duty of the appellate court to determine both its own jurisdiction and the jurisdiction of the trial court. Mansfield, C. & L. M. Ry. v. Swan, 111 U. S. 379, 4 S. Ct. 510, 28 L. Ed. 462; Chicago, B. & Q. Ry. Co. v. Willard, 220 U. S. 413, 31 S. Ct. 460, 55 L. Ed. 521; Baltimore & O. R. Co. v. City of Parkersburg, 268 U. S. 35, 45 S. Ct. 382, 69 L. Ed. 834; Nixon v. Michaels (C. C. A.) 38 F.(2d) 420; Cyclopedia of Fed. Proc. vol. 6, § 2689.

All courts, state and national, must take judicial notice of and be governed by a treaty to which the United States is a party as a law of the land. U. S. v. Rauscher, 119 U. S. 407, 7 S. Ct. 234, 30 L. Ed. 425; Munich Reinsurance Co. v. First Reinsurance Co. of Hartford (C. C. A.) 6 F.(2d) 742; Daigle v. U. S. (C. C. A.) 237 F. 159; Lacroix Fils v. Sarrazin (C. C.) 15 F. 489. See, also, U. S. v. Reid, 73 F.(2d) 153, decided by this court October 15, 1934. At the time the alleged injuries were sustained by libelant, the Treaty of Commerce and Navigation 1827, between the United States and the kingdom of Sweden and Norway was in force and effect. The second paragraph of article 13 of said treaty is as follows:

"The consuls, vice consuls, or commercial agents, or the persons duly authorized to supply their places, shall have the right, as such, to sit as judges and arbitrators in such differences as may arise between the captains and crews of the vessels belonging to the nation whose interests are committed to their charge, without the interference of the local authorities, unless the conduct of the crews, or of the captain, should disturb the order or tranquillity of the country; or the said consuls, vice consuls, or commercial agents should require their assistance to cause their decisions to be carried into effect or supported. It is, however, understood, that this species of judgment, or arbitration shall not deprive the contending parties of the right they have to resort, on their return, to the judicial authority of their country." (8 Stat. 346, 352.)

"In the absence of treaty stipulation, the courts of admiralty of the United States have jurisdiction of all matters appertaining to a foreign ship while in the ports of this country." Heredia v. Davies (C. C. A.) 12 F.(2d) 500, 501, and cases cited. In suits between foreigners it is discretionary with ...