Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 6, 1875, Volume I
No. 262.
Mr. Fish
to General Schenck.
Washington, March 12, 1875.
Sir: Referring to my instruction of the 8th of November, 1873, (No. 476,*) in relation to jurisdiction assumed by the local common-law courts of Great Britain, in cases of disputes arising between the masters and crews of merchant vessels of the United States, I now transmit to you a copy of a dispatch recently received by the Department from the United States vice-consul at Hong-kong, together with a copy of its incisures, relating to a case between Joseph D. Ellis, the steward of the American ship “Lathley Rich,” and Thomas Mitchell, the master of that vessel, in which the jurisdiction complained of, was assumed and exercised by the local courts of that colony. Complaints have also recently reached the Department from Melbourne and Singapore of a similar assumption of jurisdiction by the local courts of these colonies.
The laws of the United States make ample provision for the regulation and protection of the seamen of the United States, and for the settlement of all disputes which may arise between the masters and crews of American vessels before the consuls of the United States resident in the ports of foreign countries, carefully reserving, at the same time, to the parties all the rights and remedies that are secured to them by law through the courts of the United States.
Regulations similar in character for the government and police of their merchant marine are established by the government of Great Britain, and, indeed, by the governments of most, if not all, commercial nations, and this Government has never failed to recognize the effective beneficence of such domestic regulations in promoting discipline, order, and good government on vessels engaged in the merchant service. They rest upon principles of convenience, international comity, and well-settled rules of public law. The claim of jurisdiction made by the local common-law courts of Great Britain, and particularly by the colonial tribunals, is conceived to be in contravention of those principles; and the exercise of it, moreover, calculated to work serious injury to the commerce of the United States, in those ports where it obtains, and to the interests of the vessels which, from time to time, become the subjects of such unauthorized interference.
Acting in the spirit of these views, this Government has on several occasions, when interference of a similar character by local courts or magistrates of this country, in the case of British vessels, has been brought to its notice by Her Majesty’s government, promptly made such complaints the subject of inquiry and correction.
On the 19th of February, 1873, Her Majesty’s minister at this capital brought to the attention of the Department a case, occurring at Galveston, Texas, in which the master of the British ship “Bucephalus” had been arraigned before a local State magistrate, who happened, also, to be a United States commissioner, upon the complaint of one Thomas Moffit, a seaman of that vessel, for an alleged assault, commenced while the ship was at sea and continued after her arrival at that port. The case was referred by this Departments the Attorney-General, and that officer instituted an immediate investigation. It was found, upon inquiry, that the magistrate in question had instituted the proceedings [Page 593] in his capacity of justice of the peace, an office which he held under the laws of the State of Texas, and not as United States commissioner, and that upon being advised by the United States district attorney for that district that it was not a matter of which either the authorities of the United States or of the State should take cognizance, the master being amenable to the laws of the nation to which his vessel belonged, the complaint was at once dismissed by the magistrate. In the same note the British minister complained of certain proceedings of two United States commissioners at New Orleans with reference to the discharge of seamen from a British vessel at that port, the seamen in question being citizens of the United States and claiming the interposition of the local authorities on that ground. These officers were also instructed that such interference with the police regulations established by Great Britain for the government of their merchant-vessels was contrary to the policy of this Government, and that even in cases where the right of the local magistrates to assert the jurisdiction was undoubted, its exercise should be avoided. These instructions have been adhered to, and there has since been no recurrence at that port of the interference then complained of.
In another case, which occurred at Charleston, S. C, and which was brought to the attention of the Department by Sir Edward Thornton in a note of the 6th of May, 1874, in which it appeared that John Bogan, a seaman of the British ship “Amelie,” complained before a United States commissioner of ill treatment received at the hands of the captain of that vessel. It turned out, upon inquiry, that the commissioner was not advised of the nationality of the vessel when he issued his warrant of arrest, and, that as soon as the fact was disclosed to him that the occurrences complained of took place upon a British vessel, he promptly advised the United States district attorney of that circumstance, and, upon the advice of the latter officer, immediately dismissed the complaint.
In these several cases, occurring in the United States, it must also be noticed that the proceedings were taken by petty or inferior magistrates, who may not reasonably be supposed to be learned in the law, while in the case of the “Lathley Rich,” at Hong-kong, the proceedings were commenced before a nisi prius court, and ultimately heard and determined on appeal before the supreme court of the colony, and the same is true of some cases which occurred at Melbourne.
The instances thus given, taken in connection with the practice and doctrine laid down by Mr. Justice Betts in the United States court for New York, sitting in admiralty, to which I adverted in my No. 476 to you, serves to show the uniform regard in which these principles of international comity and convenience have been held by the Government of the United States.
It is therefore with regret that I notice the absence of a reciprocal respect for these principles in the administration of the local courts of Great Britain, and particularly in Her Majesty’s colonies, in their proceedings towards American merchant-vessels.
Bearing in mind the views expressed in my former instruction, (No. 476,) it is desired that you will take the earliest favorable opportunity of bringing to the attention of Her Majesty’s government the case of the “Lathley Rich,” now transmitted in connection with the general question of the jurisdiction referred to, and you will represent to Earl Derby the interest felt by this Government in the adoption of such measures by that of Great Britain as will prevent a recurrence of such cases, and be effective, especially as regards the colonial courts, in putting a stop [Page 594] to this exercise of jurisdiction, at once injurious to the interests of the vessels which may be the subjects of it, and the possible cause of international inconvenience to two nations so largely interested in the commerce of the world as are those of the United States and Great Britain.
I am, &c.,
Mr. Loring to Mr. Cadwalader.
Hong-kong, December 14, 1874. (Received Feb. 24, 1875.)
Sir: I have the honor to call the attention of the Department to the evidence herewith submitted in a certain case that came before me as the consular officer in charge of the United States consulate at this port, marked “inclosure 1,” in which it appears that a complaint was made before me by Captain Thomas Mitchell, master of the American ship “Lathley Rich” of Boston, as against his steward, Joseph D. Ellis, for incompetency, filthy and untidy habits, and general misconduct in his capacity as steward of said vessel.
After a careful investigation of the case, I decided that the complaint was fully sustained, and in view of the fact that the man Ellis (notwithstanding he had shipped on the “Lathley Rich” in a foreign port) could at once reship on an American vessel bound to the United States, I discharged him with loss of extra pay, under the provisions of the act of Congress approved March 3, 1873, Department Circular No. 41, bearing date May 16, 1873.
The man Ellis apparently submitted to this decision—made no remonstrance or demand for extra pay whatever; his account of wages earned was submitted to him by myself, and approved of in every particular; but the moment he obtained possession of his certificate of discharge he declined to reship. I then informed him that under the regulations of the port he must enter either the sailors’ home or a licensed boarding-house before I could give him the balance of wages due and in my hands, thereby relieving my Government of the danger of his coming on this consulate for relief in a few days, his money being gone.
This he declined to do, and at once brought an action in the summary-jurisdiction court of this colony to recover not only the amount of wages due and in my hands at the date of his discharge, but also a further claim for two months’ extra wages, for an alleged wrongful dismissal or illegal discharge.
At the request of Captain Mitchell, i attended and stated the case to the court, pointed out the law under which I had acted, and, in fact, at the request of the judge, gave my reasons for my decision, although i intimated to the court that in doing so 1 was prompted simply by a desire to be courteous, and that the fact of my having acted in accordance with law might be fully established, and not for a moment that I conceded them the right to inquire into my official conduct in matters relating to the discharge of American seamen from American vessels, in accordance with law and the instructions of my Government. My statements were, however, of no avail, the court overruled my decision as regards the extra pay (there being no dispute as regards wages) and awarded the man Ellis two months’ pay over and above the amount of wages earned, as shown by the account submitted by the master and approved by the steward.
The conduct of the court was so plain during the hearing of the case that one could not fail to see that there was a fixed determination on the part of the presiding judge, not only to go into the case, notwithstanding my action, but to overrule my decision if possible. In view of this conviction, I at once addressed a communication to the local government, a copy of which I inclose herewith, marked inclosure 2.
Before I received the reply of the Government to the same, the court rendered judgment in the case in favor of the plaintiff, and an appeal was at once taken to the supreme court of the colony. A day or two after this appeal had been taken, I received a reply to my communication from the colonial secretary, a copy of which I inclose herewith, marked inclosure 3.
The case came on, after a delay of some weeks, and was postponed; finally a hearing was had and judgment reserved until after the departure of the vessel for New York; the master having entered into bonds for the payment of costs, &c. Forty eight hours after the vessel had cleared from this port, the court rendered judgment [Page 595] fully sustaining the action of the lower court, and the attorney was compelled, by threats of immediate process, as against the surety to pay the two months’ extra pay into court on behalf of Captain Mitchell; this was done, however, under protest.
I. then addressed the local government a second communication, a copy of which I inclose, marked number 4; a copy of the reply to the same, I also inclose herewith, marked inclosure number 5.
As the full court decided not to make the judgment rendered by them sustaining the action of the lower court public, I instructed the defendant’s attorney to apply for an official copy of the same, the result of which was that on December I, nearly four months from the date of the steward’s discharge by myself, the final decision was given in full from the bench, a copy of which I inclose herewith, marked Inclosure number 6.
I also inclose, for the information of the Department, an article on this case from a copy of the China Mail, a leading journal published in this colony; it is marked inclosure number 7.
I refrain from expressing an opinion in regard to this case, further than, perhaps, an error was made by Captain Mitchell (acting, however, under the advice of his attorneys) in relying too much upon the idea that the court would dismiss the case upon its being brought to the knowledge of the justice that the matter had been adjudicated upon in accordance with American law before the consul. This was the opinion, however, of the entire legal fraternity, as well as myself; and in fact, a leading legal firm here, no less than the crown solicitors, had been applied to by the steward to conduct his case, and had declined to do so, on the grounds that he had no case, that the courts here would not entertain an appeal from a consular decision in matters appertaining to the discharge of seamen from foreign ships in this port before their respective consular officers. The whole case, then, for the defense rested upon the ground of want of jurisdiction, the defendant evidently failing to show cause for my action (other than by the statements made by myself) simply because he did not call as witnesses the parties that I had called in my examination at the consulate.
The question of jurisdiction, then, in the opinion of: the courts of this colony, is now fully determined, and consular officers cannot fail to see that any course they may take, as regards carrying out the instructions of their respective governments relating to the discharge, wages, and disputes, as between masters and seamen, is liable to be received here, and their action in the matter reversed, so long as tile decision in this case stands.
With this statement and inclosures before you, then, I consider my duty done, and i await such action as may be deemed expedient by the Department in view of the facts submitted. In the mean time, rest assured that I shall continue to carry out my instructions, to the letter and spirit of same, to the best of my ability, avoiding all issues with local authority possible; each and every act, although tempered with moderation, still strictly in accordance with law, and in compliance with the views of the Department as expressed in existing regulations.
I have the honor to be, sir, your obedient servant,
United States Vice-Consul.
Hon John L. Cadwalader,
Assistant Secretary of State, Washington, D.
C.
Depositions of Captain Mitchell and others of the Lathley Rich.
Hong-kong, August 6, 1874.
In the matter of the complaint of Capt. Thomas Mitchell, master of the American ship “Lathley Rich,” against Joseph D. Ellis, steward of said ship.
Capt. Thomas Mitchell, being first duly sworn, deposeth and saith: I am master of the American ship “Lathley Rich,” of Boston. I have to complain of the untidy and filthy habits of the said steward about his pantry and table. Many times he has brought the dishes onto the table in a disgustingly filthy condition—very dirty, indeed. I have frequently spoken to him about this; and almost daily during the passage from Cardiff have been obliged to send the dishes away, owing to their dirty s condition.
The bread that he served for the cabin-table was frequently sour and unfit to eat, owing I to his negligent and lazy habits, allowing the yeast to stand too long. He would not wash the table-cloths, which is a part of his duty to do. At one time he let three table-cloths stand in the water three days; said he would not wash them; and Mrs. Mitchell was obliged to have the cabin-boy wash them, in order to prevent their being [Page 596] ruined. All this time the table-cloth in use was not any too clean, and his attention was frequently called to the fact, but to no purpose. He kept his pantry in anything but a clean and neat condition—drawers, barrels, cans, &c., &c., very dirty. He kept his pipe and tobacco in one of the drawers in use for keeping spices. I spoke to him about this, and told him to take them out; he did not do so, and I afterward took them and threw them out of the pantry myself. He kept his cloths for cleaning lamps, and made it a practice to clean and till his lamps in the pantry. He did this, although we had an oil-room expressly for the trimming of lamps, lining them, &c. Yet he would do all this dirty work in the pantry, and keep all his dirty fixings in the drawers used for the purpose of keeping things necessary for the cooking of the-food for the cabin.
I have to complain that he neglected his duty, and made the cabin-boy I have on board do his duty for him. He would not turn out in the morning and get the coffee, but make the boy do it for him; he would lay in his bunk all the time; often did not make his appearance for duty until after 6 o’clock in the morning, when he should have been out at 5 a. m., ready for duty, get coffee for the mates, &c., &c. When spoken to regarding these matters he was sulky, and did not try to do better; in fact, continued the same in his conduct as before.
I have to complain that in his capacity as steward he has had charge of the stores of the ship, and he has abused the trust, not being at all careful of them, and has be n very extravagant in the issuing of them. The tea gave out long before we arrived at our destination, owing simply to the fact of his wasteful and negligent, lazy habits. The sugar was male away with in a most wonderful manner, having issued and used up; besides all the molasses used, two barrels of sugar on the voyage from Cardiff to Hong-Kong. Since I have been master of a ship I have never known of the stores of a ship generally to be wasted in such a shameful manner as this steward has done, to the loss of the captain and owners of the ship.
I consider this man is a very bad man, indeed, one liable to breed trouble on any ship between the master and the crew. I have to request that he may be removed from-the ship at one, for fear of further trouble; his presence on the ship is prejudicial to good order and discipline, every moment he stays there, and I shall not take him on the ship, if I can help it, again.
Regarding his conduct further during the voyage, I have to call the chief officer, sail-maker, and cabin-boy, and, if necessary, my wife, who is on the ship with me, and Can state more fully than I regarding some things that have occurred on the voyage.
Charles Pera, chief officer, being first duly sworn, deposeth and saith: I have to say that the steward, Ellis, has been an awful dirty man; he has been very dirty, indeed; not a meal was passed but that the captain or the madam has been obliged to send plates back to the galley from the cabin-table, on account of their being dirty. I have seen dishes come on the table with the marks of his dirty fingers on them; and very often the bread has been sour, not fit to eat. I have also at times been obliged to set two of the boys on the ship at work to clean the dirt out of the pantry. The flour that he used in cooking he was in the habit of keeping behind the stove, in an unfit place, when he had a proper place to keep it. The fact of the matter is, he has not attended to his duty at all as steward, but the cabin-boy has been compelled to do his work for him. On several occasions he has ill used the boy, whipped him most severely. While the ship has been lying in port he has been out of the ship about every night, without leave, never returning until the next morning. When Captain Mitchell spoke to him about the neglect of his work, I heard him say he “would do less in future.” I have to say, also, that he has used a large amount of tea; enough for the whole voyage was used up in a very short time; did not take proper care of the stores of the ship; allowed the cook to take what he liked. I consider that he was not a steward in any sense of the word; did not know his duty, find was dirty and filthy in the extreme. The table-cloths were dirty all the time, and he said he would not wash them, although it was his duty to do so I consider that a man of this kind is very apt to bring about difficulty between a master and crew, through his neglect of his duty in the care of the stores of the ship; that he is a very bad man for any ship. Temper very bad I have seen him fling the dishes about in the pantry, and exhibit, in various ways, a very bad temper indeed.
Charles Parker, sail-maker and third mate, being first duly sworn, deposeth and saith: I have to say, regarding the steward, Ellis, that he neglected his duties; did not keep things clean; aside from this, he has frequently abused and ill-treated the cabin-boy on the ship. I have seen him strike him in the forward cabin very often, ill-use him, and use very bad language to him; the boy all the time doing his duty for him, on account of his being too lazy to do his own work. He kept his pantry and store-room in a filthy condition; would not keep anything clean. The chief officer [Page 597] has often set the boy to work to clean the pantry out for him, it having got in so filthy a condition. He did not pretend, to do a single thing, in fact, that properly belonged to him to do, but would lay in his state-room and make the cabin-boy do the work for him. I don’t consider him a good man for a ship; he makes a great deal of talk—a kind of sea-lawyer, and one that would make trouble, at the first opportunity, between the crew of the ship and the master: he has a very bad temper indeed.
George Abraham, cabin-boy, being first duly sworn, deposeth and saith: I am eighteen years of age; I shipped on this ship as cabin-boy. Regarding this matter, I have to say that the steward, Ellis, has brought the plates on the table in the cabin, day after day, in a dirty and filthy condition; so bad, that the captain and Mrs. Mitchell have been obliged, again and again, to send them off the table. He kept the flour, used for food for the cabin, back of the stove in the pantry, instead of putting it in the flour-bin. He would hang his clothes up over it, and let them drain down on it. He trimmed and cleaned his lamps in the pantry, setting the oil-lamps on the bread-board. I have often, after he got through, gone and wiped the oil up myself, I think him a beastly, lazy man, very dirty and slovenly in his habits, more like a beast than a human being. On the voyage out he often, without any provocation whatever, would beat and ill-use me because I would not do all of his work, and he would want to go in the galley and smoke. I have done about all his work during the last part of the voyage, while he would go and have what he called his evening sleep. The only times he misused me was when the captain was not about. I have often had to go to work with one of the boys on the ship, by order of the mate, and clean out the pantry, it would be so dirty and stinking. In one of the drawers he left his pipe, cigars, and tobacco, where the food was. In the store-room he kept his stinking oil-rags, socks, &c., &c., in drawers used to keep the spices, &c.; used to prepare the food for the cabin. At one time, in the galley, he caught hold of me, tore my shirt, and struck me in the face and on the head until I bled at the nose and ears; this was because I was in the galley, doing something for the captain instead of waiting on him. At another time I had been up and attending his duty in the morning, getting the coffee for the mate; when I came back to the state-room to turn in for a moment or two, he got after me again because I did not bring him coffee while he was in his bunk; said he would fix me, and a short time after he caught me in the galley, and, putting my head between his legs, he beat me with a boot, and then threw me against the partition and struck me in the face with his fist when he heard the mate coming. At another time one of the men brought a keg of butter to the cabin-door. The steward was too lazy to bring it in, and I told him I was busy waiting on the madam; he then threw a large carving-knife at me, cutting my leg about one inch, (witness showed the scar;) the knife then struck the door and stuck there; the knife was a large one, used in the galley by the cook. I have complained to the madam about my treatment, and to the captain the last part of the voyage, and the captain told the steward not to have anything to do with me, that 1 was his servant, and he did not intend that I should be abused. Many times on the passage he has threatened my life, and has caught me by the throat and neck, and slapped my face with his hand. I occupied the same state-room with him, and always had to clean it up after him. He was a very dirty and filthy man about his duty, and imposed on me and most cruelly treated me throughout the voyage. I have often scrubbed the room out. The place where he lay was all of an inch thick with dirt, and he often went with his work in the pantry without washing his hands. If the steward stays in the ship I must leave; I can’t stay; I am afraid that he will kill me. I shipped as a cabin-boy, and my duty was note has to attend to the captain and the madam. The steward had no right to order me about or to make me do his work.
Many times he has made water in the wash-pan and made me empty it for him. This was in the state-room where we slept. He kept a bottle of poison in the pantry, with the food all the time—that is, it was marked poison. He also kept his dirty stockings, combs, and brushes in the pantry with the food. I have nothing further to say, only that often at night he would drive me out, and take the whole state-room to himself, although there were two bunks in it, one for me and one for him. I forgot, one time I went to the galley for the madam, and the steward and cook both pitched on me, the cook striking me with a belaying-pin.
When we left Cardiff it was cold, and we had a fire in the cabin, and the steward used to keep a can of kerosene-oil behind the stove, and would frequently pour the oil on to make the fire burn faster, or to’ light it. One time it caught fire, and blew the top of the can off. I wonder that he did not set the ship on fire many times. He was very wasteful in the handling of the stores. Tea I have seen him spill on the floor when he would go to the store-room to fill the tea-caddy. I called his attention to the fact. Sometimes he would spill all of one or two pounds. I have said it was a waste. He said, “Waste be damned,” and ordered me to throw it in the scrap-tub. He was very wasteful, indeed, in the handling of the stores.
Captain Mitchell recalled:
As soon as I knew of the fact of the steward’s ill-treating the boy Abraham, I spoke to hi m about it, and told him not to let me hear of any more of it; told him that the boy was to tend only myself and wife, in the cabin, and that he should have nothing to do with him. Before this I had allowed the steward to make use of him about his work, when not wanted in the cabin, bat finding that he not only made him do all the work while he lay around doing nothing, but also abused him, I would not let him have anything to do with the boy at all. I was afraid he would set the ship on fire, all the time, by his careless handling of the kerosene-oil; had to watch him all the time. I remember, one time, when I caught him pouring the oil on the fire from a can—a large can, holding at least two gallons. He said his mother was burned up and lost her life in the same way—putting krosene-oil on the fire to make it burn. It is a wonder he did not set the ship on fire and burn her up, for his careless handling of the oil had been going on for some time before any one knew anything about it. The morning I speak of catching him pouring the oil on, I do not think I should have known anything about it, but that the oil in the can, or the gas, did take fire and blow the top of the can off. The noise attracted my attention.
I do not consider that the ship is safe a moment with that man on hoard, and, in the interest of the owners, I have to request that this man be at once taken out of the ship. I can’t keep him on the ship. Every night he goes on shore without leave, stays all night, and comes back late for duty in the morning. I can’t have such work. It is a bad example for the men forward, and already it begins to have its effects. I can call Mrs. Mitchell, my wife, to testify, if you wish, regarding the steward’s conduct during the voyage.
Defense.
The defendant, Ellis, declined to make any statement, other than that the captain promised him a whole state-room to himself, and had not given it to him, but had put the cabin-boy in with him; said that either he or the cabin-boy must leave the ship. (Addressing himself to the captain,) “I deny all the charges made.”
Decision.
In view of the filthy habits of the steward, his careless handling of material like kerosene-oil, his wasteful handling of the stores of the ship, and ill-treatment of the boy Abraham, I have decided to discharge the man Ellis, with the loss of extra wages, under the provisions of the act of Congress approved March 3/1873, but that all wages due to date of discharge shall be paid in full; and he shall be shipped on the American bark “Menschikoff,” Captain Bannister commanding, now about leaving this port for San Francisco.
[seal.]
United States Consul in Charge.
Mr. Loring to Mr. Austin.
Hong-Kong, August 28, 1874.
Sir: I have the honor to call the attention of his excellency the governor to the following facts:
On the 7th instant, as the consular officer of the United States in charge of the United States consulate at this port, I, in my official capacity as consul, discharged from the articles of the American ship “Lathley Rich” the steward, Joseph D. Ellis, in accordance with law; that, at my request, the account of wages of the said Ellis was submitted to me by the master of the said ship, and by me to the man Ellis; that the same was duly approved and pronounced correct by him in my presence; that I then collected from the master the balance due, and issued to the man Ellis the certificate of discharge, as provided by instructions from my Government.
I then called the attention of the man discharged to the fact that under the harbor regulations of Hong-Kong, he would be obliged to lodge at either the Sailors’ Home or a licensed boarding-house, and that, until he complied with said regulations, I could not, under my instructions, pay over to him the balance of wages due, as I should then have no security that he would not come upon the consulate in a few days (his money being gone) for relief. That the man Ellis thereupon declined to comply with said regulations, and at once brought an action in the supreme court of this colony, in summary jurisdiction, against the master of the late ship the “Lathley Rich,” that this action was not only for the balance of wages rendered and in my hands, but for the sum of two months’ additional pay, as damages for an alleged [Page 599] wrongful dismissal, or, in other words, illegal discharge; that the plea of defense to this was as follows: First, the man Ellis, late steward of the American ship “Lathley Rich” was discharged at Hong-Kong, By the consul of the United States, in accordance with law; second, that, the consul having discharged the man Ellis in accordance with law, and given him his certificate of discharge under his signature and the consular seal of the United States, it was not competent for the court to review the case, having no jurisdiction.
Against all precedent, the court entertained the case, thereby constituting itself a court of appeal from the decisions of the United States consul at this port in matters concerning the discharge of American seamen from American vessels, rendering nugatory all instructions of my Government, or laws of the United States, made and provided for the guidance of its consuls at a foreign port, in matters relating to the discharge of American seamen from American vessels, and the manner of their discharged
The statements of his lordship, in the judgment rendered by him, that, by the ordinances of the colony which regulate the merchant-service, (1 of 1850, 6 of 1852, 1 of 1862,) consular officers are permitted to discharge seamen, has but little worth, if the officer has not the right, in accordance with the instructions from his government, to determine in what manner the seamen shall be so discharged, and the precedent be established, as in this case, that an appeal can be taken from his action in the matter. Of what value is the right of discharge granted by the ordinance referred to, if this construction is to be placed upon it? Which amounts to little more or less than this: a seaman, being discharged by his consul on what to him appears to be sufficient grounds for such action, and in accordance with law, can defy his consul by an appeal to a local court, and can not only set aside his official acts, but can obtain damages for same; as in this case my official act, as the consular officer of the United States, in that I did discharge the man Ellis, with loss of extra wages, in accordance with law, has been set aside by this court, and the ship mulcted for damages to the same amount I had denied the man under my official action.
I contend, with all due respect, that if, as a consular officer, I had the right to discharge, the man at all, I certainly had the right to determine the basis of his discharge, whether with or without extra wages, in accordance with the law of the United States regulating the same, and that, having once determined this fact, and discharged the man, he had no redress as against such decision other than that provided by the laws of the United States.
However, without entering upon a further discussion of the matter at this time, I deem it my duty herewith to enter a most solemn protest in behalf of my Government as against the action of the court in this case, as by its decision I am rendered utterly powerless to carry out the instructions of my Government regulating cases like the one in point. I claim, furthermore, that there is no precedent for this action; that the customs and usages of this port have established my right, as the consular officer of the United States, to, discharge seamen from American ships in accordance with law, and that as such consular officer I have sole jurisdiction as regards the basis of such discharge; that having decided a seaman shall be discharged, and the basis upon which such discharge shall be granted, there can be no appeal from the decision to any court in this colony.
In conclusion, permit me to state that in making this claim I am only urging that the consular officer of the United States at this port may have the same privileges and courtesies extended to him, in his official capacity, as is now, and has been for years, extended to like officials in England and the colonies, and that my Government may not be denied the reciprocal right here which is claimed and practiced by the government of Great Britain in the United States.
I have the honor to be, sir, your obedient servant,
United States Vice-Consul.
Hon. J. Gardiner Austin,
Colonial Secretary.
Mr. Austin to Mr. Loring.
Hong-Kong, September 2, 1874.
Sir: I have the honor to acknowledge the receipt of your letter of the 28th ultimo, and to acquaint you in reply that inasmuch as the case of Joseph D. Ellis has been submitted to the decision of the full court, and the first step in the appeal has already been taken, it would, at present, be premature to express any opinion in the matter. I have the honor to be, sir, your most obedient servant,
Colonial Secretary.
H. S. Loring, Esq.,
Vice-Consul for the United States, Song-Kong.
Mr. Loring to Mr. Austin.
Hong-Kong. November 12, 1874.
Sir: With reference to your dispatch No. 397, hearing date September 2, 1874, regarding the case of Ellis vs. Mitchell, as brought to the attention of the government by my No. 285, bearing date August 28, 1874, I have the honor to request, as the objection stated by you to the expression of an opinion is now removed, that my dispatch on the subject may be laid before his excellency the governor, and that I may be favored with an opinion on the point at issue, in order that I may be enabled to lay the whole matter before my Government at an early date, in obedience to my instructions.
I have the honor to be, sir, your obedient servant,
United States Vice-Consul.
Hon. J. Gardiner Austin,
Colonial Secretary.
Mr. Austin to Mr. Loring.
Hong-Kong, November 25, 1874.
Sir: I have the honor to acknowledge the receipt of your letter of the 12th instant requesting that your dispatch on the subject of the recent case of Ellis vs. Mitchell may be laid before his excellency the governor, and that yon may be favored with an opinion on the point at issue, in order that you may be enabled to lay the whole matter before your Government. In reply, I am directed to inform you that the decision of the full court is a formal statement of the law of the matter, and must be taken by his excellency to be in all respects correct until reversed on appeal by the privy council in England. I am also to observe that it cannot be expected, nor would it be right, that his excellency should express an opinion upon any such decision. I have the honor to be, sir, your most obedient servant,
Colonial Secretary.
H. S. Loring, Esq.,
Vice-Consul of the United States, Hong-Kong.
decision of the supreme court.
[From the Daily Press.]
Supreme court, 1st December, in admiralty, before the honorable chief-justice (Sir John Smale) and Mr. Justice Snowden. Ellis v. Mitchell—appeal case.
In this case, the chief-justice now read the following judgment:
“Our decision in this appeal having been for some time come to, we handed to the registrar our concluded judgment, and by our direction he gave it out on the 7th of November last. That decision was in the following terms: ‘We have fully considered all the facts in this case and the very able arguments which, on the part of the appellant, Mr. Kingsmill submitted to us. The respondent did not appear. We are of opinion that the appellant has failed to show that the decision in the summary branch of this court is wrong. It is our duty, therefore, to dismiss this appeal.’ The respondent has incurred no costs; we say nothing as to costs. Some questions as to the duties and jurisdiction of consuls have arisen in this case to which we should wish to advert, but as these questions arise out of this case, rather than lead up to our decision, we purpose at a more convenient opportunity to refer to them. It seems to us that a somewhat exaggerated notion as to the duties and jurisdiction of consuls in this colony is prevalent. The grounds and reasons for the decision in this case were very [Page 601] carefully considered and conferred on between us. We were agreed in the conclusion that the appeal must be dismissed. In order that the parties might not be kept longer in suspense, we directed the decision which I have just read to be given out by the registrar on the 7th day of November, as I have already said. There seems to have been a grave misapprehension that this case came before Mr. Justice Snowden as an appeal from the decision of the consul of the United States. It was not so. From the first it was treated by the learned judge as being untouched by decision, and, indeed, as a matter entirely ultra vires the consul of the United States. True it is that a discharge of the plaintiff from the ship, and an account taken in the presence of the consul of wages earned, were produced and relied on by the defendant, the master of the ship, as an answer to the plaintiff’s claim; but it was held in the summary branch of this court, upon the evidence before it, that in no way was the consul acting or intervening judicially, either as to the discharge, or as to the account. No claim for unlawful dismissal had been raised before the consul. It might have been properly raised before the proper judicial tribunal of and within the United States; but no evidence was adduced to show that that authority was vested by the law of the United States in the consul here. Even if it had been so vested by any such law of the Union, it required the force of a treaty, and an act of Parliament, or local ordinance, to enable the consul to exercise any extraterritorial judicial power within British territory. Although some instructions to the consul were produced to the court, no act of Congress was produced, nor was there any evidence that there was any such act, or common-law power in a consul. According to Chancellor Kent’s Commentaries, vol. 1, p. 50, and seq., ‘consuls are commercial agents.* * * In some places they have been invested with judicial powers over disputes between their own merchants in foreign ports; but in the commercial treaties made by Great Britain there is rarely any stipulation for clothing them with judicial authority, except in treaties with the Barbary powers. And in England it has been held that a consul is not strictly a judicial officer, and they have there no judicial power.’ He cites Waldron vs. Coombe, 3 Taunton, 162. The words of the Chief-Justice Mansfield there are, ‘The vice-consul is no judicial officer.’ At page 51, the very learned chancellor proceeds: ‘No government can invest its consuls with judicial power over their own subjects in a foreign country without the consent of the foreign government, founded on treaty.’ At page 52 he says: ‘It is likewise made their duty, (i. e. of consuls,) where the laws of the country permit, to administer on the personal estates of American citizens dying within their consulates,’ &c. And in note (6) he says, ‘American consuls cannot take cognizance of the offenses of seamen in foreign ports, nor exempt the master from his own responsibility.’ He cites Ware’s Reports, (American,) 367. And to conclude all, he says, at page 53: ‘The consular convention between France and this country (i. e. the United States) in 1778 allowed consuls to exercise police over all vessels of their respective nations within the interior of the vessels, and to exercise a species of civil jurisdiction by determining disputes concerning wages, and between the masters and crews of vessels belonging to their own country. The jurisdiction claimed under the consular convention with France was merely voluntary, and altogether exclusive of any coercive authority, and we (i. e. the United States) have no treaty at present which concedes even such consular functions.’ We quote the 9th edition of Kent’s Commentaries, (1858.) We have before us the valuable work of Judge Bouvier, the Law-Dictionary, the 4th edition of 1872, and in it we find nothing to vary all that Chancellor Kent asserts. Parsons’s Law of Shipping, published in 1869, is to the same effect. One quotation from Parsons, vol. 2, p. 56. He there says, ‘A discharge, i. e. of a seaman,) when made in a foreign port, is required to be made before the consul; but the payment of wages already due is not.’ And this to such an extent that the learned author adds, And the consul has no right to charge a commission for witnessing the settlement;’ in other words, he has nothing to do with the settlement of the wages due; a fortiori he has no authority in reference to damages for breach of contract, or otherwise, between the master and the seaman. Now, if the consul has no such authority, the authority must be somewhere, and it cannot be contended, upon any grounds of which we are aware, that this court has not the fullest authority over ail such disputes. It is quite clear that the legislature of this country can, by statute or ordinance, give extraterritorial powers to consuls, but as all such powers are in derogation of the royal prerogative, all such laws must be construed strictly. It appears to us that ordinance No. 4, of 1850, has no bearing on the question before us. It relates to cases of desertion from ships, and to nothing else. Ordinance No. 6. of 1862, is prohibitory. It says that no British seaman shall be discharged elsewhere than at the harbor-master’s office, and that every seaman discharged from a foreign ship, represented by a consul here, ‘shall, within twenty-four hours of being discharged at the office of his consul, or vice-consul, produce at the harbor-master’s office a certificate of his discharge.’ Now, this is not an enabling statute, and it gives no power to any consul which he had not before. All it does is to assume that every discharge of a foreign seaman will have been given at the office of the consulate of his country. But for legislation the discharge of a seaman is a matter between master and seaman only. [Page 602] No treaty has been produced, no act of Parliament or ordinance, other than those above cited, has been brought to the notice of this court. In the absence of any such we are driven back to the international law, as laid down by Chancellor Kent, page 51, that the consul of the United States is not a judicial officer, ‘that they have no judicial power and, page 53, that there is no treaty with the United States which authorizes consuls to exercise a species of jurisdiction by determining disputes concerning wages between masters and crews of vessels belonging to their own country in this colony. We conclude, therefore, that the consul of the United States has no judicial powers or authority whatever in this colony as to wages or damages for wrongs, between United States masters and seamen, which the judicial authorities here can recognize, but that this court must decide such questions when brought before it.
“What we have said as to the consul of the United States applies to consuls from all other foreign states. No such claim is, we believe, set up in any other part of the British dominions. In China, every consul of every foreign power has judicial authority over its own subjects; but this extraterritorial jurisdiction is the result of express treaty, and is conferred on them by the enactments of the legislative authority of each foreign state. The exaggerated notion as to consular authority here has probably arisen from the powers conceded to them in China, but which are not conceded here. In a colony so distant as Hong-kong is from London, convenience has rendered direct communication between the colonial government and consuls here on many subjects properly diplomatic, convenient for all parties. This has probably tended to induce an overestimate of the position of consuls here in reference to judicial authority. We feel great respect for the consuls in this colony, both officially and personally, but we must see that the authority of this court is not curtailed beyond what the law permits. If circumstances render it proper or convenient that judicial authority should in this colony vest in consuls, it must be obtained by treaty and legislation. This court has no power to concede it.”
His honor, Mr. Justice Snowden, said:
“I quite concur in the views which have just been expressed by the chief-justice, and the reasons given are precisely those on which I held, in the court of summary jurisdiction, that the discharge of the respondent, Ellis, before the vice-consul of the United States, was not per se a bar to an action for damages for a wrongful dismissal. The jurisdiction of consuls in dealing with matters connected with the discharge of seamen has been so fully discussed by his lordship, that I need say nothing on that head. I wish, however, to state my opinion on other points which arise in the case, and to which our judgment must also be directed. Some confusion seems to have arisen from the fact that the damages awarded by me, on the summary side of the supreme court, were assessed at the rate of two months’ wages; two months’ wages, or more correctly speaking, compensation at the rate of wages for two months, is the amount which by an act of Congress of 1873, an American consul is directed to collect at his discretion for the personal benefit of a discharged seaman, one month’s wages in addition being collected and retained for the use of a fund for seamen, without any exercise of discretion on the part of the consul. The damages might possibly have been larger, but the sum awarded was that mentioned in the summons, and seemed to meet the merits of the case j but the damages I gave and the two months’ wages to be collected by the consul, if he thought right to do so, are entirely distinct. The claim for the compensation I declined to entertain for the following reasons: 1st. That the respondent being an American citizen, signing articles to sail in an American ship sailing under the national flag, must be considered to be bound by American municipal regulations respecting the discharge of seamen. 2d. That with the municipal regulations of a foreign country a British court will not interfere, in accordance with the decision of Sir W. Scott in the case of the Courtney, reported in Edwardes, Ad. Rep., Vol. 1. And, moreover, that the respondent had accepted his certificate without any protest, and had by his conduct generally acquiesced in the consul’s decision to refrain from collecting the two months’ wages as compensation, and had waived his claim, even if it could have been entertained by the court. But a suit for damages for a wrong dismissal is a totally different matter, and I am strongly of opinion that the court had jurisdiction to entertain an action for breach of contract, as well as for wages due, if the consul had disallowed them. The cases of the Courtney and the Golubchut are instructive on the subject of the authority of foreign representatives. In the case of the Courtney, it was laid down by Sir W. Scott that the consent of the ambassador, or consul, or accredited agent of a foreign country would be requisite to give jurisdiction to the court of admiralty to entertain a suit for wages earned, promoted by foreign seamen against a foreign vessel; but Dr. Lushington, in the case of the Golubchut, 1 W. Robinson, Ad. Rep., page 143, modifies the rule so laid down, and decides that while consent of a foreign representative is not essential, notice of the intended proceedings should be given to him out of convenience and courtesy. In the case of the Courtney and the Golubchut, the proceedings were in rem in the court of admiralty; but Dr. Lushington says, in his judgment in the latter case: ‘In the other courts of this country, I have no doubt that the mariners might have instituted an action in personam, without [Page 603] reference to any consent at all’. Upon such high authority, can there be any doubt that the respondent in this case might have recovered for wages earned and due to him in the courts of this colony, in defiance of any consular decision to the contrary? Moreover, the reports of American courts of law teem with cases in which, after a discharge in due form, seamen have recovered damages against the masters of their vesvels. An American writer of great authority, Parsons, in his work on Shipping and Admiralty, has collected a large number of these cases. In page 50, under the heading ‘Wages’ he says, ‘If a master discharges a seaman without his consent, and without good cause, in a foreign port, he is liable to a fine of $100, or six months’ imprisonment.’ I lay stress on the words without his consent, because the acquiescence of the respondent to part of the proceedings before the consul formed the basis of one of the arguments addressed to the court on the hearing of the appeal by the learned counsel for the appellant, to which I must shortly advert by and by. Nor is a proper discharge an answer to an action in the courts of the United States. The learned author goes onto say, ‘and the seaman may recover besides full indemnity for his time lost or expense incurred by reason of such discharge.’ The case referred to is Crape vs. Allen, 1 Sprague, 184; but not having access to the authorized report of the case, I am obliged to content myself with the quotations from a text-book. In note 3, the author, referring to apparent contradictions in various cases there cited, adds: ‘In all the cases a compensation is intended to be allowed, which shall be a complete indemnity for the illegal discharge.’ Now, in every case it may be assumed that the formalities required by the rules of the foreign ports in discharge of seamen had been complied with; the illegality, therefore, would consist in a discharge without due cause, for which the captain is liable to fine or imprisonment as before mentioned. The argument I referred to above was, that after the discharge of the respondent, inasmuch as the court had found that he had acquiesced in the proceedings before the consul, no contract for service remained for the breach of which an action would lie. This argument seems to me to be based on a mistaken notion of what the so-called consent was, and of what the nature of a discharge is, and of the functions of the consul in giving the necessary certificate. A discharge is the dissolution of a contract for service between a seaman and the master of a ship, put into formal shape by a commercial agent appointed for the purpose, generally a consul in the case of foreign seamen.
“Were there no American consul or other commercial agent, as required by act 1840, U. S. Statutes, in Hong-kong, the discharge of the respondent must have been effected before the English harbor-master. Now, a certificate which is only the formal evidence of the dissolution of such a contract, the consul is bound to give by the laws of the United States, and he must set forth in it certain particulars mentioned in Parsons on Shipping, page 85, note 5. It would seem (note 5) that under the act 1840, U. S. Statutes, chap. 48, sec. 5, which regulates the shipment and discharge of seamen, on the application of any master and mariner, the consul may discharge such mariner. His certificate that the mariner was discharged, with his own consent, is conclusive of the fact unless fraud is shown. But that contemplates a joint application, and it was never, in this case, pretended that the respondent applied for his discharge. A discharge may be voluntary by mutual consent, or it may be involuntary, on the part of the seaman, when it becomes practically a dismissal, wrongful or not, according to the circumstances. Under any circumstances a certificate must be given by the consul; on the one hand, to protect the master on his return to America; on the other hand, to save the discharged seaman from the penalties of fine or imprisonment to which he would be liable in Hong-kong, under ordinance 1 of 1862, sec. 8, were he to remain in the colony twenty-four hours after the departure of his ship without a certificate. In a certain sense, the respondent voluntarily submitted to the only process by which he could escape the penalties alluded to. In other words, he voluntarily submitted to a necessity imposed on him by the master, through the consul’s agency. The evidence in the court on the summary trial proved beyond a doubt that there was no adequate reason for the dismissal of the respondent. There was then a breach of contract, for which damages can be awarded; and I cannot conceive that the jurisdiction of the courts of this colony can be ousted because a consul has—with reference to the proceedings which form the ground of complaint—performed a preliminary and purely ministerial act, which, by the laws of the country he represents, he was bound to do. The danger suggested by the learned counsel for the appellant, that the confirmation of the judgment will be a death-blow to all consular authority, is more imaginary than real. Each case will stand on its own merits, and a good legal reason for discharging a seaman will supply the master with an excellent defense to any action brought against him vexatiously. I will only add that the words duly discharged,’ which appear in the case, on which some stress has been laid, mean nothing more than ‘discharged according to the forms prescribed by the laws of the colony,’ viz, to use the words of the ordinance, (1 of 1862,) ‘on a certificate from the harbor-master, or other person appointed to grant the same, which person, by ordinance 6 of 1852, sec. 5, is supposed to be the consul or vice-consul in the case of foreign seamen’”
consular jurisdiction in hong-kong.
[From the China Mail.]
Most of our readers will remember the important point raised in the recently-tried case of Ellis vs. Mitchell. The plaintiff, a steward on board the defendant’s ship, brought suit in the summary court to recover a certain sum to which he maintained that, on being discharged, he was entitled under American law, but which had been withheld on the order of the United States acting consul. A decision was given in his favor, and the defendant appealed to the full court, which sustained the previous ruling. As regards the plaintiff and defendant, therefore, the case has in all probability closed. But inasmuch as the real point at issue was the validity of the United States consul’s act, in authorizing Captain Mitchell to withhold the sum at issue, that official has, we learn, called upon the court for the full text of its judgment. We can quite agree with Colonel Loring as to the importance of the principle which the judgment lays down. It is neither more nor less than that the courts of this colony can by their action practically reverse the decision of a consul in matters purely affecting his own nationals, serving on board American merchant-vessels, over whom he has always been supposed to exercise undisputed authority. The point is one of great importance, riot merely to the American consul, but to every official other than British in the colony; and the matter having passed beyond its condition sub judice calls for some expression of opinion.
The actual case which has given rise to the reference is of course sufficiently unimportant to all but those immediately concerned. The point demanding attention is, how far does the independent authority of a consul accredited to a British colony extend? There is nothing that we are aware of to render Hong-kong in any way different from another colony or home possession in such matters, and what is good or had law here must be good or bad law everywhere else. The case under notice so far differed from others which might arise, inasmuch as the plaintiff pleaded that it had not been “heard” before a consular court at all. His protest was against the personal dictum of the consul. But the decision did not turn upon this accident, and both the puisne judge and the chief-justice would have similarly decided, even had the man’s complaint or protest been heard in a duly-constituted “consular court.” And such being the case, the principle is established that a consular decision (in its fullest sense) is of no effect if contrary to a decision of the courts of the colony. We can see much to make this satisfactory. In theory the citizen or subject of any nation can appeal against the decision of his consul to his authorities, at home; but the absurdity of a common sailor carrying such an appeal home for a matter of some fifty dollars, when the time which must elapse and the cost which must be incurred are alike prohibitory, is too obvious to need demonstration. And this strengthens the reason which, from an equitable point of view, renders it highly desirable that a consular judgment should be entirely ignored by local courts The total absence of all publicity attending the best-organized consular court is a powerful argument, in the absence of any special international agreement to the contrary, for some local check being placed upon its decisions. As regards the consuls themselves, they cannot complain of the status internationally accorded to them by our own and other governments.
In China and other Asiatic countries there are good and weighty reasons why a consular decision, whether just or unjust, should not be liable to practical reversal by the act of the local authorities. We in fact insert exterritorial clauses in treaties with them, in order to draw a distinction between the powers inherent in their officials and those inherent in our own. And this tends to show that we have always tacitly, if not actively, assumed that, as regards western nations, a local government has supreme jurisdiction. We know it, for instance, to be a fact as regards every-day matters of crime, and we are unable to find any precedent in which our officials have neglected to exercise those powers as to civil suits. As regards the case which has given rise to these remarks, we should deem it to stand in this way: “The United States consul has given a certain decision which, under American law, stands good. But, inasmuch as our civil courts have the power of deciding all disputes which may arise between residents beneath our own flag, (the affairs of persons under martial law alone excepted,) the plaintiff has recovered his claim irrespective altogether of the consular decision. Our judges, therefore, have not reversed the finding of the United States consul, but have passed it by. If the plaintiff, for instance, were to revisit the United States, he would again be liable to make good the original decision against him. So long as he continues under British protection he can claim the benefit of that given in his favor by British judges. Such is the true state of the case, as regards all alien plaintiffs and defendants; and the position forced upon the United States or any other consul here is that which, we suspect, a British consul would have to take in any civilized foreign country. It is, however, most desirable that this be definitely understood. [Page 605] The hardship to consuls is not so great as it might seem, because their decisions hold good the instant both plaintiff and defendant are beyond our jurisdiction, and only therefore in exceptional cases would their authority be ignored. Should the matter become a subject of reference home, it is to be hoped that the correspondence will be made public.