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THE WIND

DISTRICT COURT, E.D. PENNSYLVANIA


March 31, 1938

THE WIND

The opinion of the court was delivered by: MARIS

Before DICKINSON, WELSH, and MARIS, District Judges.

MARIS, District Judge.

A libel has been filed in this case seeking a decree requiring the respondents to leave the motor vessel Wind and directing the delivery thereof to libelant. The respondents have moved to dismiss the libel upon the ground that this court is without jurisdiction to entertain it.

 The libel avers that libelant is the master of the Norwegian motor vessel Wind, and that respondents are former members of the crew; none of them being citizens of the United States. It is further averred that on October 13, 1937, respondents signed Norwegian articles of agreement before the vice consul for Norway at Mobile, Ala., under which they agreed to serve in their respective capacities on a voyage from Mobile, Ala., to Japan, and return, and pursuant to said articles the vessel proceeded to Japan, and returned to the United States at the completion of the voyage. On March 6, 1938, in accordance with Norwegian law, and with the provisions of the articles, the master served upon the members of the crew a notice that they would be paid off and discharged upon arrival at the port of destination in the United States. The Wind arrived at Philadelphia, on March 15, 1938, with a cargo of sugar; part of which was destined to be discharged in Philadelphia, and the balance was to be discharged at New York.

 The libel further avers that upon arrival here respondents notified libelant that they would not proceed with the ship to New York. Libelant thereupon notified respondents to go to the Norwegian consulate at Philadelphia and receive their pay and discharges, which respondents failed and refused to do. Thereafter, the consul at Philadelphia for Norway took jurisdiction over the matter and, upon hearing the facts, decided that the term of service of said men under said articles had expired, and that they should be discharged and should leave the vessel, and said consul personally went aboard the Wind on March 16, 1938, and so advised respondents. Nevertheless, respondents failed and refused to vacate the vessel, and have since continued in such refusal. The consul for Norway thereupon appealed to the mayor and superintendent of police of the city of Philadelphia for assistance in enforcing his orders, which assistance has been refused.

 The libel further avers that the vessel is loaded with a valuable cargo which will deteriorate and be damaged unless it is promptly discharged at its destined port of New York, and that because of the presence of respondents aboard it is impossible to obtain a new crew, and any effort on the part of the master and his officers to evict the men would result in violence and breach of the peace. The request of the consul of Norway at Philadelphia to this court to assume jurisdiction of the case is annexed to the libel.

 It is the contention of the respondents that the averments of the libel disclose a controversy, exclusive jurisdiction of which is conferred upon the Norwegian consul at Philadelphia by the express provisions of article 22 of the Treaty of 1932 between United States and Norway, 47 Stat. 2152. The treaty provisions referred to are as follows:

 "Article XXII.

 "A consular officer shall have exclusive jurisdiction over controversies arising out of the internal order of private vessels of his country, and shall alone exercise jurisdiction in cases, wherever arising, between officers and crews, pertaining to the enforcement of discipline on board, provided the vessel and the persons charged with wrongdoing shall have entered a port within his consular district. Such an officer shall also have jurisdiction over issues concerning the adjustment of wages and the execution of contracts relating thereto provided, however, that such jurisdiction shall not exclude the jurisdiction conferred on local authorities under existing or future laws. * * *

 "A consular officer may freely invoke the assistance of the local police authorities in any matter pertaining to the maintenance of internal order on board of a vessel under the flag of his country within the territorial waters of the State to which he is appointed, and upon such a request the requisite assistance shall be given."

 It is well settled that where treaty stipulations exist between the United States and the country to which a foreign ship belongs, with regard to the right of the consul of that country to adjudge controversies arising between the master and crew, or other matters occurring on the ship exclusively subject to the foreign law, such stipulations are the law of the land and must be fairly and faithfully observed. The Balgenland v. Jensen, 114 U.S. 355, 5 S. Ct. 860, 29 L. Ed. 152; Wildenhus's Case, 120 U.S. 1, 7 S. Ct. 385, 30 L. Ed. 565.It follows that where such a treaty confers upon the foreign consul exclusive jurisdiction over such a controversy a court of admiralty of the United States is without jurisdiction to adjudicate it. The Elwine Kreplin, 9 Blatchf. 438, Fed.Cas.No.4,426; The Burchard, D.C., 42 F. 608; The Marie, D.C., 49 F. 286; The Welhaven, D.C., 55 F. 80; The Bound Brook, D.C., 146 F. 160; The Ester, D.C., 190 F. 216, 226.

 This brings us to the question whether the averments of the present libel disclose a controversy within the exclusive jurisdiction of the Norwegian consul under the provisions of the treaty. As we have seen, those provisions confer upon him exclusive jurisdiction "over controversies arising out of the internal order of private vessels of his country," and direct that he alone shall "exercise jurisdiction in cases, wherever arising, between officers and crews, pertaining to the enforcement of discipline on board." We think that the libel clearly discloses a controversy arising out of the "internal order" of a Norwegian private vessel, and that this is a case "between officers and crews, pertaining to the enforcement of discipline on board." Certain it is that the suit is brought by the master as libelant against the members of his crew as respondents, and that the controversy between them arises as a result of the refusal of the crew to obey the master's orders to proceed with the ship from the port of Philadelphia to New York where they were to be paid off and discharged. Nothing could be more clearly a breach of internal order and discipline on board ship than the refusal of the members of the crew to obey the master's orders to perform their duties incident to the navigation of a vessel from an intermediate port of call to its port of destination, to which under their articles they were obligated to take her. We therefore conclude that the controversy disclosed by the libel in the present suit is a controversy within the exclusive jurisdiction of the Norwegian consul at Philadelphia, and that this court accordingly has no jurisdiction of the case.

 Our conclusion is fortified by the fact, disclosed in the libel, that the Norwegian consul at Philadelphia has actually taken jurisdiction of the controversy and has proceeded to adjudicate it. The fact that he is unable, because of the failure of the Kingdom of Norway to make similar provision for the execution of the treaty in favor of the United States, to invoke the aid of this court under sections 4079, 4080, and 4081, R.S., as amended, 22 U.S.C. §§ 256, 257, 258, 22 U.S.C.A. §§ 256-258, in carrying out his adjudication cannot operate to confer upon this court jurisdiction of which it has been expressly deprived by a valid subsisting treaty. Nor can the refusal of the local police authorities to assist the consul, as by the express terms of the treaty they are required to do, confer such jurisdiction upon us. The responsibility for the consequences, as Judge Smith said in The Ester, supra, "rests upon the lawmaking, not the judicial, department of the government."

 The libel is dismissed for want of jurisdiction.

19380331

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