Telefsen v. Fee
| Decision Date | 23 March 1897 |
| Citation | 168 Mass. 188,46 N.E. 562 |
| Parties | TELEFSEN v. FEE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
The substantial facts set forth in the bill of exceptions are as follows: Defendant was a constable of the city of Boston. One Johannessen sued out a writ from the municipal court of that city to recover wages alleged to be due him as one of the crew of a steamship of which Telefsen was captain, and on this writ an affidavit had been put, signed by a master in chancery, authorizing the arrest, both writ and affidavit being in proper form. Telefsen was a Norwegian subject in command of the steamship, which was a Norwegian vessel flying the Norwegian flag, and was about to leave the port. Johannessen was a Norwegian, and had shipped at New York for the run to Boston without signing shipping papers. He left the ship at the latter port, "because his term of service had expired." The arrest was made on the deck of the vessel, while she was lying on the side of the wharf in Boston, at a place within the territorial jurisdiction of the municipal court. Defendant was informed before making the arrest that the vessel was Norwegian; that Telefsen was a Norwegian subject, and was captain; and that the claim would be adjusted at the consulate of Sweden and Norway, there being such consulate in Boston. After the arrest defendant detained Telefsen on the vessel until he paid, under protest the amount alleged to be due. Plaintiff asked the court to rule that, by the treaty between the United States and the kingdom of Sweden and Norway, he was at the time exempt from arrest, and that the process was not sufficient to justify the arrest under the circumstances disclosed, plaintiff being a Norwegian and upon and in command of a Norwegian vessel but the court declined, upon all the evidence, so to rule and ruled that defendant was justified in making the arrest unless the jury found that he used excessive force. Plaintiff excepted to the ruling and the refusal to rule, and the jury returned a verdict for defendant.
John Lowell and Edward S. Dodge, for plaintiff.
Bordman Hall, for defendant.
The municipal court of the city of Boston had no jurisdiction of the action brought against the plaintiff in this case for wages alleged to be due one Johannessen, and the writ upon which the plaintiff was arrested on mesne process was of no effect. By article 13 of the treaty between the United States and Sweden and Norway of 1827 (8 Stat. 352), it is provided that There are similar treaties with other countries, including one with Prussia in 1828 (8 Stat. 382). Many of these treaties are referred to in 7 Am.Law Rev. 417, Later treaties have been made with the Netherlands in 1855 (10 Stat. 1155), with Denmark in 1861 (13 Stat. 605), with Germany in 1871 (17 Stat. 921), and with Italy in 1878 (20 Stat. 729). By article 6 of the constitution of the United States, it is declared that "all treaties made, or which shall be made under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding." Such a treaty as that with Sweden and Norway has been almost uniformly held to take away all right of action for wages in the courts of this country, by a seaman coming within the scope of the treaty, whether the action be in rem or in personam. Norberg v. Hillgreu, 5n. Y. Leg.Obs. 177; The Elwine Kreplin, 9 Blatchf. 438, Fed.Cas. No. 4,426, where the question is considered at length; The Salomoni, 29 F. 534; The Burchard, 42 F. 608; The Marie, 49 F. 286; The Welhaven, 55 F. 80. In The Amalia, 3 F. 652, jurisdiction was entertained by Judge Fox of the United States district court in Maine of a libel against a Swedish vessel, on the ground that there was no consular representative of Sweden in the district of Maine. But this case has no bearing upon the one before us. An examination of the treaty and authorities above cited makes it plain that the court has no discretion in the matter, and that the local authorities have no right to interfere. Where jurisdiction is given by a treaty to a consul, vice consul, or a commercial agent, he alone has authority to act in determining in the first instance whether wages are due, and the amount.
It is to be remembered that the United States government has the same right by the treaty in regard to its vessels in Norway, and this right is insisted upon by our government. In the United States Consular Regulations of 1888 (page 25, par. 66), under the title "Jurisdiction over Dispute between Masters, Officers, and Crews," appears the following: "Exclusive jurisdiction over such disputes in the vessels of the United States, including questions of wages, is conferred by treaties or conventions with" several governments named, and, among them, Sweden and Norway. And on page 92, par. 273, is also the following: "In many instances, by treaty and consular convention, the United States have secured to their consular officers jurisdiction over questions of wages, shipment, and discharge of seamen."
The bill of exceptions is not so full as it should be as to what occurred on the arrival of the ship in Boston. It is merely said that "Johannessen left the ship at Boston because his term of service had expired." It does not appear whether he had been discharged, or had left without the permission of the master, though, perhaps, the more reasonable interpretation of the exceptions is that the statement of the cause of his leaving precludes our assuming other reasons to exist. However this may be, whether he was discharged or not, there was still the question of wages to be determined; and the defendant had been informed, before he made the arrest, that the claim of Johannessen would be adjusted at the consulate of the kingdom of Sweden and Norway. It seems to us impossible to say that there was not such a difference between the master and Johannessen that the consul had not exclusive jurisdiction in the premises. The facts in the case of The Elwine Kreplin are not fully set forth in the report in 9 Blatchf. 438, Fed.Cas. No. 4,426. But they are found at length in the report of the case in the district court (4 Ben. 413, Fed.Cas. No. 4,427). It was there considered by Judge Benedict that the connection of the men with the ship was severed by mutual consent, and that they were entitled to their wages. While this view of the facts was not fully assented to by Judge Woodruff, his opinion was that, although the men were entitled to their discharge and to be paid off, and the master was in the wrong, yet this matter of difference "was left by the treaty in the hands of the consul," and the libel of the seamen was dismissed. In The Burchard, 42 F. 608, Judge Toulmin dismissed a libel for wages against a German vessel brought by an American seaman who had shipped on board, and who claimed to be entitled to a discharge. He stated, however, that he was inclined to take jurisdiction, if the fact had been proved that a discharge had been granted. In the later case of The Welhaven, 55 F. 80, a libel was brought against a Norwegian steamship by a citizen of the United States, for damages and for wages, alleging that he shipped on the vessel at Mobile, for a round voyage to Tampico, and that, on his arrival in Mobile Bay on the return trip, he was put ashore, manacled, and finally discharged at Mobile, without full pay. On the intervention of the Norwegian consul, claiming jurisdiction, Judge Toulmin sustained the consul's position, and dismissed the libel. The case appears to have been heard on exceptions to the libel, as the judge concludes the opinion thus: "I am, therefore, constrained to sustain the exceptions to the libel, and to order that the libel be dismissed."
It appears, therefore, that the consul of Sweden and Norway had exclusive jurisdiction of the controversy or difference between Johannessen and Telefsen, and that the municipal court of the city of Boston had no jurisdiction either of the subject-matter or of the persons of the parties in the action which the seaman saw fit to bring against the master. The officer who arrested the master was therefore acting illegally and without justification, and is liable in this action, unless he is protected by virtue of his writ. This presents a question of some difficulty, and one which is not wholly free from doubt. Before proceeding to consider the principal question, it may be well to state briefly certain principles laid down by the courts in regard to which there is little or no dispute. Where the process is in due form and comes from a court of general jurisdiction over the subject-matter, the officer is justified in acting according to its tenor, even if irregularities making the process voidable have previously occurred. Savacool v. Boughton, 5 Wend. 171; Earl v. Camp, 16...
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