that the power of the courts is most frequently invoked, and it is well settled that cognizance of a suit will be taken whenever justice demands that it should be done; as where the voyage is broken up at a port of this country,2 or the seaman is compelled England by other salvors, and that all the questions relative to the salvage service could be best determined together; that the vessel to which the salvors belonged, was on a voyage to England at the time the service was rendered; and that the articles saved were especially adapted to the English market, and were transshipped from a vessel bound to London and near that port, and the court doubted whether such conduct, if excusable in law, gave a claim to remuneration as for a meritorious salvage. The Ada, Daveis, 407. The law on this subject is ably stated in the celebrated case of Taylor v. Carryl, 20 How. 583, 611, by the learned chief justice of the Supreme Court of the United States: "It is true, that it is not in every case obligatory upon our courts of admiralty to enforce it in the case of foreign ships, and the right or duty of doing so, is sometimes regulated with particular nations by treaty. But as a general rule, where there is no treaty regulation, and no law of Congress to the contrary, the admiralty courts have always enforced the lien, where it was given by the State or nation to which the vessel belonged. In this respect, the admiralty courts act as international courts, and enforce the lien upon principles of comity. There may be, and sometimes have been, cases in which the court, under special circumstances, has refused to interfere between the foreign seamen and ship-owner; but that is always a question of sound judicial discretion, and does not affect the jurisdiction of the court." It should be remarked, that although this citation is taken from a dissenting opinion, yet the decision of the court proceeded on another ground, and this doctrine was not doubted. In Ellison v. Ship Bellona, Bee, 112, the court said: "Courts of admiralty have a general jurisdiction in causes, civil and maritime. . . . . The case of seamen's wages comes within the description of causes; and this jurisdiction has been uniformly exercised by me, as regards foreigners generally." In this case, the court took jurisdiction in a suit for wages against a foreign vessel having letters of marque. It was, however, said that no action could be brought in a foreign country against a ship of war, because the seamen look to the government of the country by whom they are employed. Nor, it is said, would an action lie against a privateer, because the share of prize is settled between the owners and crew, and before the seamen are entitled to any prize money, the validity of the prize must be determined by the proper courts of the nation to which the captors belong. In The Gazelle, 1 Sprague, 378, in The Barque Havana, 1 Sprague, 402, and in Peake v. Bark Havana, November, 1857, all in the district court for the Massachusetts district, Judge Sprague held, that where a foreign vessel was attached and sold by State process for an ordinary debt of the owners, and the voyage was thus broken up, the seamen might sue in admiralty for their wages. to desert on account of cruel treatment, or is entitled to be discharged on account of a deviation.2 It seems to be questioned, whether a foreign seaman is entitled to sue in this country, if discharged here by his own wish, or with his consent. But it is very clear that.he is not, if he leaves the vessel of his own accord before the voyage is finished, and when he could return to his own country. And our courts, if necessary, will enforce the provisions of a foreign statute,5 though, if possible, they prefer in such a case to remit the parties to their home forum. The same rule prevails in this country as in Eng 2 Weiberg v. Brig St. Oloff, 2 Pet. Adm. 428. There was also cruel treatment in this case. The same point, as to the question of the effect of a deviation, was decided in the case of Moran v. Baudin, 2 Pet. Adm. 415. But in Bucker v. Klorkgeter, Abbott, Adm. 402, 409, there is a dictum of Judge Betts, that he would not take cognizance of a case where the seaman claimed his discharge solely on the ground of a deviation. In Jansen v. The Heinrich, Crabbe, 226, where the seamen were held entitled to leave the vessel, because they had not signed shipping articles, no question was made as to the jurisdiction of the court. It was held in The Infanta, Abbott, Adm. 263, that the court would not take jurisdiction in such a case. See also Graham v. Hoskins, Olcott, Adm. 224. In The Brig Napoleon, Olcott, Adm. 208, the libellant was an American citizen, and the case is not, therefore, contrary to those above cited, though the language of the court appears to conflict. But in Johnson v. Dalton, 1 Cow. 543, the supreme court of New York took cognizance of a marine tort, on the sole ground that the libellant had been legally discharged, though the voyage was not ended. And in Pugh v. Gillam, 1 Calif. 485, where the plaintiff, a British subject, shipped on time and was discharged by the master, seven days before the time expired, because the vessel was about to sail on a long voyage, it was held that he could sue in our courts, though the vessel and captain were English. Gonzales v. Minor, 2 Wallace, C. C. 348; Thomson v. Ship Nanny, Bee, 217; Willendson v. The Försöket, 1 Pet. Adm. 197; Henry v. Curry, Abbott, Adm. 433; The Pacific, Blatchf. & H. Adm. 187. In Gardner v. Thomas, 14 Johns. 134, the Supreme Court refused to entertain a suit, where it did not appear but that the parties intended to return to their own country at the termination of the voyage. In Lynch v. Crowder, U. S. D. C. New York, 12 Law Rep. 355, the seamen shipped in England to a port in this country, and thence to a port of discharge in the United Kingdom. The master assented to their leaving in this country, but afterwards withdrew his consent, and the dissent of the British consul to the suit was also filed. Under these circumstances, Judge Betts refused to allow the case to proceed, but held that as the master had given his unreserved consent to their discharge, and there was no proof that he had withdrawn it before costs were incurred, the respondents should pay summary costs. See ante, p. 172, n. 6. • One Hundred and Ninety-four Shawls, Abbott, Adm. 317. 1 land, respecting stipulations in the shipping articles preventing the seamen from suing save in the home port. They have no application, if the voyage is broken up in a foreign country. 1 Our courts, it would seem, go somewhat farther than the English courts in requiring the assent of the minister or consul of the foreign country to which the parties belong; 2 and some recognition on his part of the court is usually required. His assent cannot have anything to do with the question of jurisdiction, for the reasons that we have already stated, but it becomes essential in another point of view. For the court is not obliged to take 1 Bucker v. Klorkgeter, Abbott, Adm. 402. The case of Aertson v. Ship Aurora, Bee, 161, which is sometimes cited to the point that the court will in no case interfere where the shipping articles stipulate that all disputes shall be regulated according to the law of the country to which the vessel belongs, was decided on the ground that the libellant had made out no case for relief. * In Davis v. Leslie, Abbott, Adm. 123, 134, after stating the English rule, Judge Betts said: "But in the courts of the United States, this precautionary condition is not required; and jurisdiction will ordinarily be exercised, if the voyage has been terminated by full completion or abandonment, or if the contract of hiring is dissolved by the wrongful act of the owner or master." But in The Infanta, decided in April of the same year, Abbott, Adm. 263, 268, the same learned judge said: "It is expected that a foreign seamen seeking to prosecute an action of this description in the courts of this country, will procure the official sanction of the commercial or political representative of the country to which he belongs; or that good reason will be shown for allowing his suit, in the absence of such approval." The language of Mr. Justice Grier, in Gonzales v. Minor, 2 Wallace, C. C. 348, is much to the same effect. Without deciding whether the court would hear any case which was prosecuted without the consent of the consul, the learned judge said: "But when the court does entertain such cases without the request of the representative of the government, they will require the libellants to exhibit such a case of peculiar hardship, injustice, or injury, likely to be suffered without such interference, as would raise the presumption of a request, because it is in fact conferring a favor on such foreign state." And in Hay v. Brig Bloomer, U. S. D. C. Mass., March, 1859, Sprague, J., said: "The usual course in the case of a libel by a foreign seaman against his vessel, is to direct the clerk to inform the consul of the government of the pendency of the suit, that he may take such notice of it as he thinks proper; and, unless there were strong circumstances in the case, the court would not proceed in rem against a foreign vessel, without the assent of the commercial representative here of the foreign government of the country where she belonged." See also Lynch v. Crowder, U. S. D. C. New York, 12 Law Rep. 355. In The Barque Havana, 1 Sprague, 402, as the accounts depended somewhat upon English law and usages, the aid of the British consul, as assessor, was invoked. jurisdiction in any suit between foreigners, and does so for one of two reasons, either to protect its own citizens, as where foreigners are discharged upon our shores, or on account of the comity of nations. In this latter case, the consent of the accredited minister of the foreign country is of importance. If he expressly signifies his dissent, this is equivalent to an avowal on the part of the foreign government that they have no desire that our courts should exercise jurisdiction, and of course, no principles of comity require it. And a statute expressly providing that, except in certain cases, seamen shall not sue in a foreign country, would have the same effect.1 In one case, the libellant, an American citizen, had been hired in Boston for a voyage in an English registered vessel with an English master, from Boston to St. Jago and back to a port in the United States. The voyage was performed and the crew discharged in Boston. An action was commenced in a cause of personal damage, and the English consul filed a protest to the jurisdiction of the court, setting forth that the vessel was a British vessel, and the commander a British subject. Also, "that an investigation of some of the alleged causes of damage must call in question official acts and conduct of a British functionary in regard to British subjects, for which he is responsible only to his own government." Mr. Justice Curtis overruled the protest, and, on the merits, affirmed a decree in favor of the libellant.2 Jurisdiction has also been sustained of a suit brought by an alien against the consul of his nation, who was also an alien, and who resided in the district, to recover the amount of official fees improperly exacted.3 1 Hay v. Brig Bloomer, U. S. D. C. Mass., March, 1859. The court seem to rely in this case on the statutes of the 7th & 8th Victoria, c. 112, in 1844, and the 13th & 14th Victoria, c. 93, § 94, in 1850. No notice seems to have been taken of the 17th & 18th Victoria, c. 104, § 190. But see Roberts v. Knights, 7 Allen, 449. Patch v. Marshall, 1 Curtis, C. C. 452. Lowry v. Lousada, U. S. D. C., Mass., Lowell, J., 1 Am. Law Review, 92. CHAPTER VI. OF THE JURISDICTION OF THE ADMIRALTY OVER PROCEEDS IN THE REGISTRY. WHEN a vessel or other property against which a suit is brought is sold, and the proceeds brought into the registry, the power of the court to distribute these proceeds is unquestioned, but the right of the court to decree that third persons, who could not have proceeded against the property in rem, may receive a proportion of the proceeds of that property to satisfy their claims against the owner, does not seem to us to be clearly settled on principle, if it is on authority, and the growth of the power of the admiralty courts, in this particular, is to be attributed to a desire, on their part, to mitigate the hardships imposed on material men by the jealousy of the common-law courts. Thus in England, prior to the passage of a late statute, material men could not enforce their lien against the vessel in admiralty; but at one time they were permitted to receive on their petition. the amount due to them from the surplus proceeds in the registry.1 The power of the court to decree payment out of the proceeds in such a case, when the payment was opposed by the owners, was soon afterwards denied.2 And although the authority of this case was denied and the old rule maintained by Sir John Nicholl, a short time afterwards,3 yet his decision was reversed by the Privy Council, on the ground that there was no difference between the right 1 See cases cited 3 Hagg. Adm. 148, note. In most, if not in all of these cases, however, no appearance was made in behalf of the owners. In The John, 3 Rob. Adm. 288, the court decreed, in the case of a foreign ship, that a material man might have payment of the proceeds in the registry, but denied the right to a general creditor of the owners, on the ground that the nature of the accounts rendered his demand more fit for a court of chancery. The court said: "The court of admiralty would not attempt to interfere, where the demand itself is the subject of a dispute which the powers of a court of equity are alone competent to settle. The Maitland, 2 Hagg. Adm. 253. |