The Salomoni
| Decision Date | 07 December 1886 |
| Citation | 29 F. 534 |
| Parties | THE SALOMONI and another. v. THE SALOMONI and another. FEOL |
| Court | U.S. District Court — Southern District of Georgia |
Syllabus by the Court
If the clerk of the United States district court issue process under a standing admiralty rule of the court, he cannot be regarded as a trespasser, even though the court had no jurisdiction in the premises.
Under the treaty between the United States and the kingdom of Italy, stipulating that 'consuls general, consuls vice-consuls, and consular agents shall have exclusive charge; * * * and shall alone take cognizance of questions of whatever kind, that may arise, both at sea and in port between the captain, officers, and seamen, without exception and especially of those relating to wages, and the fulfillment of agreements reciprocally made,' a justice of the peace has no power, under sections 4546 and 4547 of the Revised Statutes of the United States to compel the clerk to issue admiralty process against an Italian ship for the wages of a seaman thereon.
Where the master of an Italian vessel, in one of the ports of the United States, is guilty of a barbarous and malicious assault upon a seaman on such vessel, he is not protected by the terms of the consular compact above quoted, and the district court may, in its discretion, take jurisdiction of the case, for the protection of the seaman, and the redress of his wrongs.
Henry McAlpin, for the rule.
Denmark & Adams, contra.
This is a rule sought against the clerk of this court by Henry McAlpin, as proctor for Frank Feol. It appears, from the petition filed, and the answer of the clerk thereto, that Feol was a seaman on the Italian bark Salomoni. On the fifteenth day of September last he made an affidavit before MCNAUGHTON, a justice of the peace, alleging an assault upon him, made by Francisco Grasso, the master of the bark, while she was lying at the wharf in the harbor of Savannah. The affidavit was intended to be in accordance with sections 4546 and 4547 of the Revised Statutes of the United States, to compel the payment of the wages due affiant, and to obtain his discharge. It does not appear, from these sections, that they embraced the subject of the discharge of the seaman, but they relate simply to his claim for wages. A summons was issued by the justice, directed to the master and owner of the vessel, commanding them to appear before him to show cause why process of attachment should not issue. A copy of the summons was served personally on the master of the bark by the constable of Justice MCNAUGHTON'S court, but the master treated the summons and the justice's court with great indifference, and, indeed, refused altogether to appear. Whereupon the justice issued his certificate to the clerk of the district court, in accordance with section 4547, Rev. St.
THE CERTIFICATE.
'Savannah, Chatham Co., Georgia.
'OFFICE OF MCNAUGHTON, JUSTICE OF THE PEACE.
'September 17, 1886.
'The master against whom the within summons issued neglects to appear, and I certify to the clerk of the district court of the United States for the Eastern division of the Southern district of Georgia that there is sufficient cause of complaint whereon to found admiralty process against said vessel.
'In witness whereof I have hereunto set my official signature and seal of office this seventeenth day of September, A.D. 1886.
(Seal.) 'MCNAUGHTON, N. P. & EX. O.J.P., C. Co., Ga.'
On the eighteenth day of September, the seaman also filed his libel in this court, and prayed process for the recovery of his wages. He made no claim for compensation for the assault, nor did he ask to be discharged. The clerk declined to issue process, either on the certificate of the magistrate or upon the libel. The reason he assigns for this refusal was his knowledge of the want of jurisdiction by this court of a difference of this character, between the master and seaman of an Italian vessel, both Italian subjects. He answers that he was aware that, under the treaty between the United States and Italy, this jurisdiction had been surrendered by the government of this country.
The article of the consular compact ratified between the United States and Italy on the eighteenth of September, 1878, is as follows:
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