Appeal from the District Court of the United States for the Eastern District of Pennsylvania; Oliver B. Dickinson, Judge.
Before BUFFINGTON, THOMPSON, and BIGGS, Circuit Judges.
This is an appeal from a decree of the District Court for the Eastern District of Pennsylvania, dismissing a libel in admiralty.
It is averred in the libel that the motorship "Estrella" is a Norwegian vessel; that the libellants are subjects of Norway; that the vessel is within the jurisdiction of the Court; that the libellants signed shipping articles for a foreign voyage on the "Estrella" with the right to secure their discharge in any Northern European port upon seven days' notice; that prior to the departure of the "Estrella" from a French port the libellants informed the master of the vessel that in the event the vessel sailed to Spain they desired to be discharged and paid off; that when the master informed them that he would not sail for Spain they remained on board the vessel; that the master ordered the vessel to sail to the port of Seville, Spain; that under Norwegian law Norwegian seamen on Norwegian vessels are entitled to be paid off and discharged in any port when there is danger of being exposed to war risk or when there is danger of the capture of the vessel; that when the vessel was at sea the libellants gave seven days' notice of their desire to be paid off and discharged; and that the master has refused their demand. The libel demands payment in full of wages alleged to be due to the date of its filing. The respondent filed exceptions to the libel and the Norwegian consul submitted an affidavit of protest. The libel was dismissed on exceptions for want of jurisdiction.
The libel is based upon Revised Statutes 4530, 46 U.S.C.A. § 597, which provides:
" Payment at ports. Every seaman on a vessel of the United States shall be entitled to receive on demand from the master of the vessel to which he belongs one-half part of the balance of his wages earned and remaining unpaid at the time when such demand is made at every port where such vessel, after the voyage has been commenced, shall load or deliver cargo before the voyage is ended, and all stipulations in the contract to the contrary shall be void: Provided, Such a demand shall not be made before the expiration of, nor oftener than once in, five days nor more than once in the same harbor on the same entry. Any failure on the part of the master to comply with this demand shall release the seaman from his contract and he shall be entitled to full payment of wages earned. And when the voyage is ended every such seaman shall be entitled to the remainder of the wages which shall be then due him, as provided in the preceding section: Provided further, That notwithstanding any release signed by any seaman under section 644 any court having jurisdiction may upon good cause shown set aside such release and take such action as justice shall require: And provided further, That this section shall apply to seamen on foreign vessels while in harbors of the United States, and the courts of the United States shall be open to such seamen for its enforcement."
The District Court, by virtue of this statute, has jurisdiction in cases involving seamen on foreign vessels while in harbors of the United States. On September 15, 1932, which is subsequent to the enactment of the above quoted statute, the United States and Norway proclaimed a treaty of Friendship, Commerce and Consular Rights (47 Stat. Part 2, 2135, 2152, treaty Series 852). Article 22 of this treaty provides:
"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."
It will therefore be seen under the terms of the treaty, that in cases involving the adjustment of wages of seamen on Norwegian vessels the District Court had jurisdiction concurrent with that of the Norwegian consul. Inasmuch as the jurisdiction of the District Court is concurrent, not exclusive, that Court had discretion to accept or refuse to take jurisdiction. We do not find that the District Court abused its discretion by declining jurisdiction in the instant case, for the parties litigant are Norwegians and their claim for wages in full prior to the termination of the voyage are based upon an alleged norwegian law which permits seamen to terminate their contract if subjected to war risks without their consent. In our opinion these rights can best be determined by the Norwegian authorities to be designated by Norway in accordance with its treaty with the United States. We find no abuse of discretion on the part of the District Court.
BIGGS, Circuit Judge (dissenting).
The appellants by the allegations of their libel against the M. S. "Estrella" claim that their contracts of employment terminated under the Norwegian law after notice given by them when the master of the M. S. "Estrella" took that ship into Seville, Spain, thereby subjecting the appellants to the risks of war. They claim all pay due them in accordance with the provisions of R.S. § 4530; Dec. 21, 1898, c. 28, § 5, 30 Stat. 756; Mar. 4, 1915, c. 153, § 4, 38 Stat. 1165; June 5, 1920, c. 250, § 31, 41 Stat. 1006, 46 U.S.C.A. § 597, and further sums equal to two days' pay for each and every day on which payment was delayed pursuant to R.S. § 4529; Dec. 21, 1898, c. 28, § 4, 30 Stat. 756, Mar. 4, 1915, c. 153, § 3, 38 Stat. 1164, 46 U.S.C.A. § 596. The provisions of R.S. 4529 are applicable to foreign seamen on a foreign vessel. The Sonderborg, 4 Cir., 47 F.2d 723, certiorari denied Akties, Dampskibsselskabet Donnenborg v. Mikkelsen, 284 U.S. 618, 52 S. Ct. 7, 76 L. Ed. 527. The provisions of R.S. § 4530 are applicable to foreign seamen by the statute's express terms.
As stated by Circuit Justice Story in The Jerusalem, 13 Fed.Cas.pp. 559, 562, No. 7,293, "It is a general rule, that foreign contracts are to be construed according to the law of the place where they are made, or to be executed." In the case at bar the contracts or employment of the appellants were made in Norway and were to be executed upon the "Estrella", a ship under Norwegian registry. In the opinion of the court in The Jerusalem, Circuit Justice Story went on to state, " * * * I do not perceive the hardship of compelling a party to perform his engagements according to the construction, which the courts of his own country would put upon them. In respect to maritime contracts, there is still less reason to decline ...