No. 399.
Mr. Ferrara to Mr. Bayard.

[Pro Memoria, January 4, 1887.]

In October last Frank Feol, a seaman on board the Italian bark Salomone, was arrested at the demand of the Italian consular agent in Savannah, Ga. While in jail he introduced a writ against the master of the bark for payment of his wages. The master alleged before a justice of the peace that under the existing treaty the only competent authority in the case was the Italian consular agent, both the parties being Italian subjects. The consular agent confirmed the allegation of the master, but the justice of the peace required the clerk of the district court to issue an admiralty process against the said vessel under section 4547 of the United States Revised Statutes. The judge of the court being absent, the clerk declined to do so on account of the court’s want of jurisdiction. Therefore a libel was filed against the clerk for his refusal and the court rendered the inclosed sentence, which is not in conformity with the provisions contained in the first article of the “convention supplementary to the consular convention of May 8, 1878, between the Kingdom of Italy and the United States of America.”

The interpretation which the said article has always received is also explained by the inclosed note of the district attorney of New York under September 4, 1882.

It is therefore desirable that the said sentence of the district court should be properly corrected, in order to prevent any unlawful interpretation of the before-mentioned consular compact.

[Page 643]
[Inclosure l.]

Mr. Kean to Mr. Di Revel.

Dear Sir: Absence Item the city has prevented my acknowledgment of the receipt of your communication of the 25th and 29th ultimo, covering a request for the surrender into your custody of Valentine Lauro, at that time confined in the city prison charged with assault on Michael Romano, under the Italian flag, on board the Italian bark La Maria, in conformity with the provisions of Article XI of the convention between His Majesty the King of Italy and the Government of the United States, proclaimed in September, 1878.

I have now the honor to inform you that upon the receipt of your letter of the 29th ultimo an investigation, into the circumstances of the case was made by this office, and thereupon the magistrate, by whom said Lauro was committed, was advised that, under the provisions of the said convention, the courts of this State were without jurisdiction over the offense, and that consequently the grievance ought to be surrendered into the custody of the consul-general of Italy, as required by the treaty. This, I suppose, has already been done.

Regretting the unavoidable delay of this response to your official communication,

I am, etc.,

John M. Kean,
District Attorney City and County of New York.
[Inclosure 2.]

United States of America,
Eastern Division, Southern District of Georgia, ss:

I, Marion, Erwin, clerk of the district court of the United States of America for the southern district of Georgia, do hereby certify that the writing annexed to this certificate is a true copy of its respective original, now on file and remaining of record in my office, to wit: The opinion of the court in case of Frank Feol v. the bark Solomono and Marion Erwin, clerk of the district court, rendered December 7, 1886.


[seal.]
Marion Erwin,
Clerk.
[Inclosure 3.]

In the district court of the United States, southern district of Georgia, eastern division. Frank Feol v. the bark Salomone, and Marion Erwin, clerk of the district court. In admiralty, seamen’s wages. Rule against the clerk. Henry McAlpin for the rule, Denmark & Adams contra.

(1)
If the clerk of the 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.
(2)
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 admiraity process against an Italian ship for the wages of a seaman thereon.
(3)
When 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.

Speer, J.

This is a rule sought against the clerk of this court by Henry McAlpin as proctor for Frank Feol.

[Page 644]

It appears from the petition filed and the answer of the clerk thereto that Feol was a seaman on the Italian hark Salomons. On the 15th 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, where upon the justice issued his certificate to the clerk of the district court in accordance with section 4547 R. S.

[The certificate.]

Office of M. Naughton,
Justice of the Peace, 17th day of September, 1886.

Savannah,
Chatham County, Georgia:

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 17th day of September, 1886.

[seal.]

McNaughton,
N. P. and Ex. O. J. P., C. C., Ga.

On the 18th 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 the 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 18th of September, 1887, is as follows:

Article XI. Consuls-general, consuls, vice-consuls, and consular agents shall have exclusive charge of the internal order on board of the merchant vessels of their nation, 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 fulfillments of agreements reciprocally made. The courts, or Federal, State, or municipal authorities in the United States, and the tribunals or authorities in Italy shall not under any pretext interfere in such questions, but they shall lend aid to consular officers, when the latter shall request it, in order to find out, arrest and imprison any person belonging to the crew whom they may think proper to place in custody. These persons shall be arrested at the sole demand of the consular officers, made in writing to the courts, or Federal, State, or municipal authorities in the United States, or to the competent court or authority in Italy, such demands being supported by an official extract from the register of the vessel and from the crew list, and they shall be detained during the stay of the vessel in port, at the disposal of the consular officers. They shall be released at the ‘written request of the said officer, and the expenses of the arrest and detention shall be paid by the consular officer.’”

A protest signed by the master and the Italian consul at the port of Savannah was tendered to the clerk, and his attention was therein called to the provisions of the consular compact, and it was therein insisted that he should issue no process in the premises.

The master also stated that he appeared before Justice McNaughton and called his attention to the consular compare between the Government of the United States and the Kingdom of Italy. The great names appended thereto, viz, Baron Alberto and William Maxwell Evarts, had no terrors for his honor, Justice McNaughton; he discredited the treaty and refused to attach any importance to it. The clerk regarded it as controlling win in his action, and declines to issue the admiralty process of the court.

[Page 645]

For this refusal it was sought to make him liable. If the clerk had issued the process sought by the seaman upon the libel filed in this court he could not, in the opinion of the court, have been regarded as a trespasser. It is true that he is merely a ministerial officer, but there is a standing admiralty rule of this court, having the effect of an order of direction to the clerk, to wit, Admiralty rule No. 1:

* * * * * * *

“In-all suits in rem, or in personam, attachment, or warrant of arrest and monition, may issue without a judge’s order, immediately upon the filing of the libel and the usual stipulation for costs in the clerk’s office, except in suits in personam requiring bail, when the claim of the libellant amounts to more than five hundred dollars, upon an ascertained demand appearing upon the face of the libel, or is for uncertain or unliquidated damages. In such excepted cases a judged order authorizing bail process and fixing the amount of the bail will be required.”

So far as the proceeding under the libel is concerned, the clerk would have been protected by this rule had he issued process.

So far as the certificate of the justice of the peace is concerned, the action of the clerk was entirely justifiable. The order proceeding to an officer of the court from an inferior jurisdiction must depend for its validity upon the power of the court issuing it.

The justice of the peace in the presence of the treaty stipulations had no power to interfere in the difference between the Italian master and seaman of an Italian vessel. The treaty was paramount law, and should have been respected by him. His sole power under the statute related to the wages of the seaman, and that by the treaty is clearly remitted to the Italian consul.

It was to avoid interference of precisely this character with the navigators of both nations that the compact between the Kingdom of Italy and the United States was made.

The court has no disposition to lessen the importance of the functions attaching to the office of justice of the peace. They are stated with some elaboration of detail in the case of Bendheim Bros. & Co. v. Baldwin, 73 Ga., p. 594, Mr. Justice Blandford delivering the opinion of the court, and on this subject of State politics the decision of the highest appellate tribunal of the State may be regarded as binding on the courts of the United States, although the excellent opinion of their court of appeals is scarcely just to the dignified metropolitan justiciary, of which Justice McNaughton is a member.

It is true, however, the certain functions are occasionally improperly exercised by justices of the peace, as, for example, a justice would improvidentially issue a warrant for the arrest and imprisonment of seamen under section 4080 of the Revised Statutes.

This power belongs to a judge of a court of record of the United States, or to a commissioner of that court. Besides, it is the duty of all courts, from motives of justice and reciprocal policy, and for the advancement of commerce, to interfere as little as may be between the master and seamen of foreign vessels trading in ports of the United States. The certificate of the justice in this case, directed to the clerk, was a nullity, and the clerk very properly paid no attention to it.

The only remaining question is, Should the clerk have issued process under the libel?

It is now settled that the district court of the United States, unless restricted by some treaty stipulations, may, in the exercise of its discretion, assume jurisdiction of a claim for wages against a foreign vessel, and also where it is provided by treaty stipulations that the consuls, vice-consuls, etc., of a nation shall have the right as such to sit as judges and arbiters upon such differences as may arise between the captain and crews. Without the interference of the local authorities “it is held that the district court was not thereby debarred from exercising its authority in a case where there was no consul or other such officer within the territorial jurisdiction of the court.” (The Amalia, 3d Federal Reporter, p. 652.)

It appears, therefore, that notwithstanding the treaty there are occasions when the courts should take jurisdiction of suits prosecuted by foreign seamen against foreign vessels. Such cases are, however, of rare occurrence.

In the case cited by counsel for the rule, reported in the New York Daily Register of March 13, 1875, decided by Judge Joachim in the marine court of New York city, where a suit to recover for an assault and battery committed on board the vessel was entertained, it was held that the injury complained of was a difference of a nature to disturb the public peace and order in port or on shore, and the treaty vesting jurisdiction in the German consul excepted cases of that character.

The language of the treaty under consideration, to wit, “Consuls, etc., 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,” suggests the inquiry: Do the questions contemplated By this clause of the treaty include such a tort as an unjustifiable assault by the master upon the seaman on board ship, an assault [Page 646] which would indicate settled hostility and probable repetition while in port! I am inclined to think they do not. Must we not construe the treaty to include questions of a similar character to those enumerated ejusdem generis?

The treaty, it seems, does not include a criminal assault upon the seamen within the territorial jurisdiction of the court as a matter of exclusive consular jurisdiction, and in that humane protection which courts have always extended over the seaman, a denial of jurisdiction in the admiralty court is held to be a matter of too serious import to be rested on implication. (Weiberg, Castenus v. brig St. Oloa, 1st Peters’ Admiralty Decisions, 433.)

It is perhaps fortunate, therefore, for the legality of the clerk’s action that the libel filed in this court contained no prayer for the injury occasioned by the assault, and no prayer a for a discharge on account of such assault, and did not otherwise comply with the admiralty rule cited.

Since it contained a prayer for wages only, a matter of which by virtue of the terms of the treaty the Italian consul had exclusive jurisdiction, the rule must be discharged.