No. 290.
Mr. Fish
to General Schenck.
Washington , November 8, 1873.
Sir: Referring to the case of Albert Allen Gardner, master of the American ship Anna Camp, tried in the county court at Liverpool, in May last, copies of certain papers relating to which were forwarded to you by General Badeau, I desire to call your attention to the claim of jurisdiction put forth by the local common-law courts of Great Britain in this and other similar cases.
It seems to be claimed by the courts in question that their jurisdiction extends to the hearing and determining of causes arising upon complaints between masters and mariners of vessels of the United States, not only when the occurrences upon which the complaint may be founded took place within British ports or waters, but also when the offense which is made the ground of action was committed on board the vessel on the high seas.
The exercise of this jurisdiction by the local common-law courts at Liverpool has already been the cause of much annoyance and, in some instances, serious inconvenience to masters and owners of American vessels, and if persisted in may affect injuriously the interests of American shipping.
The courts of the United States, even those possessing admiralty jurisdiction, have repeatedly declined to take cognizance of cases of this nature when the parties to the action were seamen and masters of foreign vessels. The reasons assigned by the courts of the United States for refusing to entertain jurisdiction of such cases are believed to be in accord with the general practice of other maritime powers and supported by the principles of international maritime law, as understood and interpreted by the highest judicial authority of maritime nations.
In a case of controversy between the crew and the master of the British ship Reliance, sought to be prosecuted before the district court of the United States in the city of New York, the master and crew in question being British subjects, the court, in declining to entertain the case, says: “The admiralty courts of the United States will decline jurisdiction of controversies arising between foreign masters and owners unless the voyage has been broken up or the seamen unlawfully discharged. It is expected,” continues the same judge, “that a foreign seaman 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 reasons will be shown for allowing his suit in the absence of such refusal. This court,” adds the learned judge, “has repeatedly discountenanced actions by foreign seamen against foreign vessels not terminating their voyages at this port as being calculated to embarrass commercial transactions and relations between this country and others in friendly relations with it.”
The justice and wisdom of those observations of the court will be at once obvious. The laws of the United States, and the instructions of this Department to its consular officers resident in foreign countries, provide with more than ordinary care for the adjustment of all questions of controversy which may arise between the masters and crews of American vessels growing out of the relations of such masters and seamen on board the vessel while on the high seas or in the ports of foreign [Page 491] powers; and where offenses are committed by either master or mariner, or other questions of dispute between them arise which are beyond the province of the consul to determine, ample provision is made by law for the trial and punishment of such offenses and the settlement of those questions by the courts of the United States. These provisions of the law and consular regulations of this country are believed, moreover, to be in general harmony with existing laws and regulations of Great Britain on this subject.
This Department, as you are aware, has repeatedly brought to the attention of Her Majesty’s government the necessity of a consular convention between the two countries, the existence of which would do much to obviate in future occurrences such as that now complained of. It is not designed in this connection to renew any discussion of that subject now, as you are fully informed that this Government is now, as it has been heretofore, ready to enter into a convention on that subject.
You will avail yourself of the earliest opportunity to bring the question involved in the case of Captain Gardner to the attention of Her Majesty’s government, with the expression of the hope indulged by the Government of the United States that measures will be adopted to prevent in future the exercise of jurisdiction by the local common-law courts of Great Britain in controversies arising between the masters and seamen of vessels of the United States growing out of occurrences on board their vessels on the high seas.
I am, &c.,