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.
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