Hamilton Fish to John L. Cadwalader , Assistant, March 12, 1875

No. 262. Mr. Fish to General Schenck.

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 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 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.,

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 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. 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 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. 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.