[Translation.]
Mr. Van Limburg to Mr. Seward.
New York,
September 27, 1862.
Sir: I have the honor to submit to you herewith
a report from the consul general at New York, accompanied by a document
drawn up by Charles Edwards, a lawyer, showing that the court of general
sessions at New York has improperly interfered in a dispute between the
captain of the Netherlandish vessel the Jan Van Galen and her carpenter,
named Herman Nepping. There was a dispute between the captain and the
carpenter in regard to the engagement of the latter, and, according to
Netherlandish law, it was for the consul of the Netherlands to decide
the question. The court of general sessions, to which the carpenter
applied, has taken the liberty of interfering in this question of
internal order, and, because the Netherlandish engagement was not in
accordance with the rules of American engagements, has thought proper to
discharge the carpenter from his obligations, and thus to deprive the
captain of services to which he was entitled, unless the consul judged
otherwise.
It is generally the practice, and admitted, that the local authorities
are not to interfere in a dispute between the captain of a foreign
vessel and the persons forming her crew, as regards the execution of
contracts which have been entered into between them, unless the captain
requests it. This is clearly expressed, among other things, in Article
VIII of the consular convention between the United States and France,
bearing date the 23d of February, 1853, in which it is said:
“The respective consuls general, consuls, vice-consuls, or consular
agents, shall have exclusive charge of the internal order of the
merchant vessels of their nation, and shall alone take cognizance of
differences which may arise, either at sea or in port, between the
captain, officers, and crew, without exception, particularly in
reference to the adjustment of wages and execution of contracts. The
local authorities shall not, on any pretext, interfere in these
differences, but shall lend forcible aid to the consuls, when they may
ask it, to arrest and imprison all persons composing the crew whom they
may deem it necessary to confine.”
Now, this rule has also always been applied to Netherlandish vessels and
consuls. The President, in his exequatur, accords the same privileges to
the consuls of the Netherlands that he does to the consuls of the most
favored nation. It is an excess of authority, therefore, which the
above-mentioned court has exercised towards the Netherlandish vessel the
Jan Van Galen, and an infraction of the prerogatives of the consul
general of the Netherlands, to whom the decision of the question should
be left.
I have the honor, Mr. Secretary of State, to invoke your good offices to
the end that the government of the United States may be pleased to
reprimand the court of general sessions of New York; to issue the
necessary orders that courts or judges of the United States will
henceforth refrain from interfering in disputes of that kind; and to
grant to the captain of the vessel the Jan Van Galen, for the damage he
has sustained, an indemnification the determination of which I willingly
leave to the generosity of the government of the United States.
I embrace this new opportunity, sir, to reiterate to you the assurances
of my high consideration.
Hon. Mr. Seward,
Secretary of State of the United States of
America, &c., &c., &c.
[Page 647]
Mr. Burlage to Mr. Van Limburg.
No. 36.]
New York,
September 26, 1862.
Sir: I have the honor to report the
circumstances of the quarrel on board the Jan Van
Galen between the captain, P. H. de Boer, and his
carpenter, H. Nepping. Contrary to the custom thus far followed,
that United States courts do not interfere with quarrels and
difficulties between captain and crew on board of Dutch vessels, the
court of general sessions, however, took cognizance of a complaint
by the carpenter, Nepping, against his captain, de Boer, (as per
annexed copy of a document of Charles Edwards, lawyer, marked A,)
and the judge decided that Nepping must be discharged, because the
American law considers a voyage, where it is not specified and fixed
as to period of time in the muster-roll, a roving one, and this was
not done in the muster-roll of the Jan Van
Galen, where it was said, “ from
Rotterdam to Hong Kong via Singapore, and
further to such other places as the captain, or his successor, or
his substitute, may deem proper, and return to a Dutch port.” In
relation to this the Dutch law says, (article 3, law concerning the
management of and discipline on board merchant vessels:) “The voyage
will be deemed to have commenced as soon as the vessel is departed
from the place where the mustering of the crew has taken place, and
to be finished when the vessel, on her return in this country, is
arrived at the place of unloading or of her destination.”
As the law of the Netherlands, according to articles 14 and 17,
stipulates that all disputes between captain and crew during the
voyage and in a foreign country shall be decided upon by the consul,
the captain of the Jan Van Galen complains
that in his case my interference has been evaded, and that he
thereby was compelled to submit to a foreign authority, contrary to
treaties existing between the Netherlands and the United States, and
that he, moreover, was subjected to annoyances and expenses. Amongst
the latter were $35 for fees to the lawyer,
as per annexed copy, marked B. He, therefore, through my
intermediary, requests your excellency to take such steps in this
matter as your excellency may deem proper to vindicate his rights
and to prevent, for the future, occurrences of the same kind.
I have the honor of being, with the highest esteem, your excellency’s
obedient servant,
His Excellency Roest Van Limburg,
Envoy Extraordinary and Minister
Plenipotentiary from his Majesty the King of the
Netherlands,&c., &c., &c.
The Jan Van Galen.
New York,
August 25,
1862.
Sir: I have the honor to report the
circumstances connected with the claim of Herman Nepping, late
carpenter of the Jan Van Galen, and also
to give you my views in relation to it.
I agree with you that the American courts ought not to interfere
with neutral vessels or their masters except in very extreme
cases, and that all jurisdiction should be left to consuls.
However, both you and I know, sir, that, notwithstanding all
protests, some of our courts will take cognizance of complaints
by seamen against their captains.
I, as standing counsel for other consulates than yours,
especially for the British consulate, have, for several years,
done my best in court and out to check such a course of things,
but, in a port like this, it is difficult to contend
[Page 648]
against bad men who
encourage bad seamen, and against outside and political
influences.
I believe I have before now taken the liberty to call to your
attention the too general wording of foreign voyages on
muster-rolls. Both the British and American shipping articles
generally specify, as far as possible, all the important places
at which the vessel is to touch, and expressly state the length
of voyage, (as, for instance, not to exceed six months or three years.) Our
courts consider that where this is not done it becomes a mere
roving voyage, under which a seaman might be kept for an
indefinite time, ad infinitum, on board,
and, perhaps, never able to reach his home. And when a keeper of
a sailor’s boarding-house ascertains that the voyage is not
fixed as to time, he goes to some lawyer and gets him to sue
vessel or master on the ground the voyage is ended, on account
of not being specific and fixed as to period of time. And so, in
the case of the Jan Van Galen, a writ of
habeas corpus was first issued to
show that Nepping was detained against his will, because the
voyage was said to be at an end from uncertainty. The matter
came before a judge notorious for his want of principle, and he
chose to discharge this man from the vessel even before I had
put in my written argument, (which the judge had agreed to
receive.) Threat was then made to attach the ship if the captain
did not pay this man in full and let him go. On a conference
which I had the pleasure to have with you, it was decided that I
should defend any suit or attachment which should be had. The
lawyer opposed to me was desirous I should allow an attachment
to be brought without any security being given by Nepping; but
this I would not give in to; and, no doubt, the difficulty he
found in getting it, and my known determination to fight, kept
him from giving further trouble until the vessel had got to
sea.
I am inclined to think that if the foreign consuls were to sign a
memorial to our legislature, asking them to pass an act which
should not allow our minor courts to take cognizance of matters
between foreign captains and crews, that it would have
attention. I have once or twice suggested something of this kind
to the British consul.
I am satisfied, from the examination which was had before the
judge on the return of the writ of habeas
corpus, that this man, Nepping, was a bad fellow, and
that the master, de Boer, had done no more than his duty, and
had behaved most properly for the interests of his owners.
According to your wish, I have enclosed a memorandum of my fees,
and remain, sir, your most obedient and humble servant,
[Untitled]
The ship Jan Van Galen debtor to Mr. Charles
Edwards, advocate:
Aug.
1862. |
Attendances on and advising Captain de Boer in
relation to a writ of habeas
corpus issued in behalf of Herman Nepping,
carpenter; drawing and engrossing special return; two
attendances before Judge McCann, when testimony was
taken and argument had, and further adjournment for
written brief; preparing written brief; letters,
afterwards, to the opposite attorney, on his threat to
attach the vessel; attendances upon and written
communication to the consul for the Netherlands |
$35 |
Received payment September 3,
1862.
CHARLES EDWARDS, By J. P. CAMPBELL.
