}
We conclude, therefore, that the Consul of the United States bas no judicial power or authority, whatever, in this Colony as to wages or damages for wrongs, between United States masters and seamen which the judicial anthorities here can recognise, but that this Court must decide such ques tions when brought before it.
What we have said as to the Consul of the United States, applies to Consuls from all other foreign staten,
No such alsim 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 jurisdic tlon 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 bere, has probably arisen from the powers conceded to them in China, but which are not conceded here.
In a colony so distant sa Hongkong 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 over-estimate of the position of Consula bere in referenos to judicial autho- rity,
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 This obtained by treaty and legislation. Court has no power to concede it.
His Honor Mr Justice Snowden, said :— 1 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 Re spondent Ellis, before the Vice-Consul of the U. S. was not per as 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 Stimmary side of the Supreme Court, were szarased at the rate of two months' wagen; two months wages or were 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 disebarged seaman, one month's wages in addition being collected and retained for the use of a fund for seamen without any sxercise of discretion on the part of the Consul
The damages might possibly dave been larger, but the sum awarded was that men tioned in the summons and seemed to mest the merits of the case, but the damages I gave and the two months' wages to be col- fested 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,
lat. That the Respondent being an Ameriban citizen, signing articles to sail In an American ship sailing under the pational flag, must be considered to be bound by American Municipal Regulations respecting the discharge of seamen,
i
fnd. That, with the munisipal Reguls tions of 3 Foreign snoptry, 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 wagus as compensation, and had waived his claim even if it could have been entertained! by the Court.
But a snit for damages for a wrongful 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 Golubchick 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 re- quisite 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 Golubchick 1 W. Robinson Ad: Rep: p. 143, modifies the rule so laid down, and decides that whilst 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 Golubchick the proceedings were in rem in the Court of Admiralty, but Dr Lush- ington says in his judgment in the latter
Case),
"In the other Courts of this Country I bave no doubt that the mariners might have instituted an action in personam with- out 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 recov- ered damages against the masters of their vessels.
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 $500 or 6 months' imprisonment." I lay stress on the words without his con- sent, because the acquiescence of the res pondent 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 Coun- sel 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 on to say "and the seaman may recover besides full in- demnity for his time lost or expense incur- red by reason of such discharge. The case referred to is Crape . 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 gases there cited adds "In all the cases a com. pensation is intended to be allowed, which shall be a complete indemnity for the ille- gal 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 dis- charge 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 sequiesced in the proceedings before the Conani, 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 Coneul in giving the necessary certificate.
A discharge is the dissolution of a con- tract for services between a seaman and the master of a ship, put into formal shape by a commercial agent appointed for the pur- pose, generally a Consul in the case of Foreign seamen.
Were there no American Consul or other commercial agent, as required by Act 1×40 U. S. Statutes, in Hongkong, the discharge
479
No comments yet.
Private notes are available after approval.