The Belgenland Jackson v. Jensen/Opinion of the Court
The first question to be considered is that of the jurisdiction of the district court to hear and determine the cause. It is unnecessary here, and would be out of place, to examine the question which has so often engaged the attention of the common-law courts, whether, and in what cases, the courts of one country should take cognizance of controveries arising in a foreign country, or in places outside of the jurisdiction of any country. It is very fully discussed in Mostyn v. Fabrigas, and the notes thereto in 1 Smith, Lead. Cas. 765; and an instructive analysis of the law will be found in the elaborate arguments of counsel in the case of the San Francisco Vigilant Committee, (Molony v. Dows, 8 Abb. Pr. 316,) argued before Judge DALY in New York, 1859. We shall content ourselves with inquiring what rule is followed by courts of admiralty in dealing with maritime causes arising between foreigners and others on the high seas.
This question is not a new one in these courts. Sir WILLIAM SCOTT had occasion to pass upon it in 1799. An American ship was taken by the French on a voyage from Philadelphia to London, and afterwards rescued by her crew, carried to England, and libeled for salvage; and the court entertained jurisdiction. The crew, however, though engaged in the American ship, were British-born subjects, and weight was given to this circumstance in the disposition of the case. The judge, however, made the following remarks: 'But, it is asked, if they were American seamen would this court hold plea of their demands? It may be time enough to answer this question whenever the fact occurs. In the mean time, I will say without scruple that I can see no inconvenience that would arise if a British court of justice was to hold plea in such a case; or, conversely, if American courts were to hold pleas of this nature respecting the merits of British seamen on such occasions. For salvage is a question of jus gentium, and materially different from the q estion of a mariner's contract, which is a creature of the particular institutions of the country, to be applied and construed and explained by its own particular rules. There might be good reason, therefore, for this court to decline to interefere in such cases, and to remit them to their own domestic forum; but this is a general claim, upon the general ground of quantum meruit, to be governed by a sound discretion, acting on general principles; and I can see no reason why one country should be afraid to trust to the equity of the courts of another on such a question, of such a nature, so to be determined.' The Two Friends, 1 C. Rob. 271, 278.
The law has became settled very much in accord with these views. That was a case of salvage; but the same principles would seem to apply to the case of destroying or injuring a ship, as to that of saving it. Both, when acted on the high seas, between persons of different nationalities, come within the domain of the general law of nations, or communis juris, and are prima facie proper subjects of inquiry in any court of admiralty which first obtains jurisdiction of the rescued or offending ship at the solicitation in justice of the meritorious or injured parties.
The same question of jurisdiction arose in another salvage case which came before this court in 1804. Mason v. The Blaireau, 2 Cranch, 240. There a French ship was saved by a British ship, and brought into a port of the United States; and the question of jurisdiction was raised by Mr. Martin, of Maryland, who, however, did not press the point, and referred to the observations vations of Sir WILLIAM SCOTT in The Two Friends. Chief Justice MARSHALL, speaking for the court, disposed of the question as follows: 'A doubt has been suggested,' said he, 'respecting the jurisdiction of the court, and, upon a reference to the authorities, the point does not appear to have been ever settled. These doubts seem rather founded on the idea that upon principles of general policy this court ought not to take cognizance of a case entirely between foreigners, than from any positive incapacity to do so. On weighing the considerations drawn from public convenience, those in favor of the jurisdiction appear much to overbalance those against it, and it is the opinion of this court that, whatever doubts may exist in a case where the jurisdiction may be objected to, there ought to be none where the parties assent to it.' In that case, the objection had not been taken in the first instance, as it was in the present. But we do not see how that circumstance can affect the jurisdiction of the court, however much it may influence its discretion in taking jurisdiction. For circumstances often exist which render it inexpedient for the court to take jurisdiction of controversies between foreigners in cases not arising in the country of the forum; as, where they are governed by the laws of the country to which the parties belong, and there is no difficulty in a resort to its courts; or where they have agreed to resort to no other tribunals. The cases of foreign seamen suing for wages, or because of ill treatment, are often in this category; and the consent of their consul, or minister, is frequently required before the court will proceed to entertain jurisdiction; not on the ground that it has not jurisdiction, but that, from motives of convenience, or international comity, it will use its discretion whether to exercise jurisdiction or not; and where the voyage is ended, or the seamen have been dismissed or treated with great cruelty, it will entertain jurisdiction even against the protest of the consul. This branch of the subject will be found discussed in the following cases: The Catharina, 1 Pet. Adm. 104; The Forsoket, Id. 197; The St. Oloff, 2 Pet. Adm. 428; The Golubchick, 1 Wm. Rob. 143; The Nina, L. R. 2 Adm. & Ecc. 44; S.C.. on appeal, L. R. 2 Priv. C. 38; The Leon XIII, 8 Prob. Div. 121; The Havana, 1 Spr. 402; The Becherdass Ambaidass, 1 Low. 569; The Pawashick, 2 Low. 142.
Of course, if any 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 should be fairly and faithfully observed. The Elwine Kreplin, 9 Blatchf. 438; reversing, S.C.. 4 Ben. 413; see S.C.. on application for mandamus, Ex parte Newman, 14 Wall. 152. Many public engagements of this kind have been entered into between our government and foreign states. See Treaties and Conventions, (Ed. 1871,) Index, p. 1238.
In the absence of such treaty stipulations, however, the case of foreign seamen is undoubtedly a special one, when they sue for wages under a contract which is generally strict in its character, and framed according to the laws of the country to which the ship belongs; framed, also, with a view to secure, in accordance with those laws, the rights and interests of the shipowners as well as those of master and crew, as well when the ship is abroad as when she is at home. Nor is this special character of the case entirely absent when foreign seamen sue the master of their ship for ill treatment. On general principles of comity, admiralty courts of other countries will not interfere between the parties in such cases unless there is special reason for doing so, and will require the foreign consul to be notified, and, though not absolutely bound by, will always pay due respect to, his wishes as to taking jurisdiction.
Not alone, however, in cases of complaints made by foreign seamen, but in other cases also, where the subjects of a particular nation invoke the aid of our tribunals to adjudicate between them and their fellow-subjects as to matters of contract or tort solely affecting themselves, and determinable by their own laws, such tribunals will exercise their discretion whether to take cognizance of such matters or not. A salvage case of this kind came before the United States district court of New York in 1848. The master and crew of a British ship found another British ship near the English coast, apparently abandoned, (though another vessel was in sight,) and took off a portion of her cargo, brought it to New York, and libeled it for salvage. The British consul and some owners of the cargo intervened and protested against the jurisdiction, and Judge BETTS discharged the case, delivered the property to the owners upon security given, and left the salvors to pursue their remedy in the English courts. One Hundred and Ninety-four Shawls, 1 Abb. Adm. 317.
So in a question of ownership of a foreign vessel, agitated between the subjects of the nation to which the vessel belonged, the English admiralty, upon objection being made to its jurisdiction, refused to interfere, the consul of such foreign nation having declined to give his consent to the proceedings. The Agincourt, L. R. 2 Prob. Div. 239. But in another case, where there had been an adjudication of the ownership under a mortgage in the foreign country, and the consul of that country requested the English court to take jurisdiction of the case upon a libel filed by the mortgagee, whom the owners had dispossessed, the court took jurisdiction accordingly. The Evangelistria, L. R. 2 Prob. Div. 241, note.
But, although the courts will use a discretion about assuming jurisdiction of controversies between foreigners in cases arising beyond the territorial jurisdiction of the country to which the courts belong, yet where such controversies are communis juris, that is, where they arise under the common law of nations,-special grounds should appear to induce the court to deny its aid to a foreign suitor when it has jurisdiction of the ship or party charged. The existence of jurisdiction in all such cases is beyond dispute; the only question will be whether it is expedient to exercise it. See 2 Pars. Shipp. & Adm. 226, and cases cited in notes. In the case of The Jerusalem, 2 Gall. 191, decided by Mr. Justice STORY, jurisdiction was exercised in the case of a bottomry bond, although the contract was made between subjects of the Sublime Porte, and it did not appear that it was intended that the vessel should come to the United States. In this case, Justice Justice STORY examined the subject very fully, and came to the conclusion that, wherever there is a maritime lien on the ship, an admiralty court can take jurisdiction on the principle of the civil law, that in proceedings in rem the proper forum is the locus rei sitoc. He added: 'With reference, therefore to what may be deemed the public law of Europe, a proceeding in rem may well be maintained in our courts where the property of a foreigner is within our jurisdiction. Nor am I able to perceive how the exercise of such judicial authority clashes with any principles of public policy.' That, as we have seen, was a case of bottomry, and Justice STORY, in answer to the objection that the contract might have been entered into in reference to the foreign law, after showing that such law might be proven here, said: 'In respect to maritime contracts, there is still less reason to decline the jurisdiction, for in almost all civilized countries these are in general substantially governed by the same rules.' Justice STORY's decision in this case was referred to by Dr. LUSHINGTON with strong approbation in the case of The Golubchick, 1 Wm. Rob. 143, decided in 1840, and was adopted as authority for his taking jurisdiction in that case.
In 1839 a case of collision on the high seas between two foreign ships of different countries (the very case now under consideration) came before the English admiralty. The Johann Friederich, 1 Wm. Rob. 35. A Danish ship was sunk by a Bremen ship, and on the latter being libeled, the respondents entered a protest against the jurisdiction of the court. But jurisdiction was retained by Dr. LUSHINGTON, who, among other things, remarked: 'An alien friend is entitled to sue [in our courts] on the same footing as a British-born subject, and if the foreigner in this case had been resident here, and the cause of action had originated infra corpus comitatus, no objection could have been taken.' Reference being made to the observations of Lord STOWELL in cases of seamen's wages, the judge said: 'All questions of collision are questions communis juris; but in cases of mariners wages, whoever engages voluntarily to serve on board a foreign ship necessarily undertakes to be bound by the law of the country to which such ship belongs, and the legality of his claim must be tried by such law. One of the most important distinctions, therefore, respecting cases where both parties are foreigners, is whether the case be communis juris or not. * * * If these parties must wait until the vessel that has done the injury returned to its own country, their remedy might be altogether lost; for she might never return, and, if she did, there is no part of the world to which they might not be sent for their redress.
In the subsequent case of The Griefswald, Swab. 430, decided by the same judge in 1859, which arose out of a collision between a British bark and a Persian ship in the Dardauelles, Dr. LUSHINGTON said: 'In cases of collision, it has been the practice of this country, and, so far as I know, of the European states and of the United States of America, to allow a party alleging grievance by a collision to proceed in rem against the ship wherever found, and this practice, it is manifest, is most conducive to justice, because in very many cases a remedy in personam would be impracticable.'
The subject has frequently been before our own admiralty courts of original jurisdiction, and there has been but one opinion expressed, namely, that they have jurisdiction in such cases, and that they will exercise it unless speci l circumstances exist to show that justice would be better subserved by declining it. It was exercised in two cases of collision coming before Mr. Justice BLATCHFORD, while district judge of the Southern district of New York: The Jupiter, 1 Ben. 536, and The Russia, 3 Ben. 471. In the former case, the law was taken very much for granted; in the latter, it was tersely and accurately expounded, with a reference to the principal authorities. Other cases might be referred to, but it is unnecessary to cite them. The general doctrine on the subject is recognized in the case of The Maggie Hammond, 9 Wall. 435, 457, and is accurately stated by Chief Justice TANEY in his dissenting opinion in Taylor v. Carryl, 20 How. 611.
As the assumption of jurisdiction in such cases depends so largely on the discretion of the court of first instance, it is necessary to inquire how far an appellate court should undertake to review its action. We are not without authority of a very high character on this point. In a quite recent case in England, that of The Leon XIII.L.R. 8 Prob. Div. 121, the subject was discussed in the court of appeal. That was the case of a Spanish vessel libeled for the wages of certain British seamen who had shipped on board of her, and the Spanish consul at Liverpool protested against the jurisdiction of the admiralty court on the ground that the shipping articles were a Spanish contract, to be governed by Spanish law, and any controversy arising thereon could only be settled before a Spanish court or consul. Sir ROBERT PHILLIMORE held that the seamen were to be regarded for that case as Spanish subjects, and, under the circumstances, he considered the orotest a proper one, and dismissed the suit. The court of appeal held that the judge below was right in regarding the libelants as Spanish subjects; and on the question of reviewing his exercise of discretion in refusing to take jurisdiction of the case, BRETT, M. R., said: 'It is then said that the learned judge has exercised his discretion wrongly. What, then, is the rule as regards this point in the court of appeal? The plaintiffs must show that the judge has exercised his discretion on wrong principles, or that he has acted so absolutely differently from the view which the court of appeal holds, that they are justified in saying he has exercised it wrongly. I cannot see that any wrong principle has been acted on by the learned judge, or anything done in the exercise of his discretion so unjust or unfair as to entitle us to overrule his discretion.'
This seems to us to be a very sound view of the subject; and, acting on this principle we certainly see nothing in the course taken by the district court, in assuming jurisdiction of the present case, which calls for animadversion. Indeed, where the parties are not only foreigners, but belong to different nations, and the injury or salvage service takes place on the high seas, there seems to be no good reason why the party injured, or doing the service, should ever be denied justice in our courts. Neither party has any peculiar claim to be judged by the municipal law of his own country, since the case is pre-eminently one communis juris, and and can generally be more impartially and satisfactorily adjudicated by the court of a third nation having jurisdiction of the res or parties, than it could be by the courts of either of the nations to wich the litigants belong. As Judge DEADY very justly said, in a case before him in the district of Oregon: 'The parties cannot be remitted to a home forum, for, being subjects of different governments, there is no such tribunal. The forum which is common to them both by the jus gentium is any court of admiralty within the reach of whose process they may both be found.' Bernhard v. Creene, 3 Sawy. 230, 235.
As to the law which should be applied in cases between parties or ships of different nationalities, arising on the high seas, not within the jurisdiction of any nation, there can be no doubt that it must be the general maritime law, as understood and administered in the courts of the country in which the litigation is prosecuted. This rule is laid down in many cases; among others the following: The Johann Friederich, 1 Wm. Rob. 35; The Dumfries, Swab. 63; The Zollverein, Id. 96; The Griefswald, Id. 430; The Wild Ranger, Lush. 553; The Belle, 1 Ben. 320; The Scotia, 14 Wall 171; The Scotland, 105 U.S. 24, 29; The Leon, 6 Prob. Div. 148. In the case last cited, which was that of a British ship run down by the Leon, a Spanish ship, the question was specifically raised by the respondents, (the owners of the Leon,) who set up in defense that if there was any negligence in her navigation, her master and crew, and not her owners, were liable by the Spanish law. This defense was overruled, and the general maritime law, as understood and administered in England, was held to govern the case; by which law the owners were held responsible. The same rule was followed by this court in The Scotland, and was applied to the collision of a British with an American ship on the high seas; although, it is true, we applied to that case the rule of limited liablility established by the act of congress, regarding that act as declarative of the general maritime law to be administered by our courts.
The rule requiring the application of the general maritime law to such cases has some qualifications, which, though not affecting the present case, should always be borne in mind. One of these qualifications is that the persons in charge of either ship will not be open to blame for following the sailing regulations and rules of navigation prescribed by their own government for their direction on the high seas, because they are bound to obey such regulations. The Scotia, 14 Wall. 170, 184. Another qualification is that if the maritime law, as administered by both nations to which the respective ships belong, be the same in both in respect to any matter of liability or obligation, such law, if shown to the court, should be followed in that matter in respect to which they so agree, though it differ from the maritime law as understood in the country of the forum; for, as respects the parties concerned, it is the maritime law which they mutually acknowledge. The Scotland, 105 U.S. 24, 31.
The first of these qualifications can rarely be called into requisition at the present day, since, for more than 20 years past, all the principal maritime nations of the world (at least, those whose vessels navigate the Atlantic ocean) have concurred in adopting a uniform set of rules and regulations for the government of vessels on the high seas. These rules and regulations have become international, and virtually a part of the maritime law. The Scotia, 14 Wall. 171, 187. They will be presumed to be binding up foreign as well as domestic ships unless the contrary is made to appear. 
We are then brought to the question of the merits of the case between the parties as shown by the pleadings and finding of facts. And this does not require any extended discussion. It is shown that the bark had her proper lights burning brightly, visible on a dark night, and with a clear atmosphere, at least two miles; and that, in character and location, they conformed to the regulations of the bark's nationality, which are the same as those of the British board of trade, (or the international rules b fore referred to;) that the mast-head light of the steamer was sighted right ahead, distant about a mile; that the bark was kept steady on her course until the steamer was almost upon her and apparently about to run her down; that then the order was given to put the helm hard a-port; that in a few seconds the steamer's starboard light came in view, and in another instant she struck the bark in her port side, cutting her in two obliquely. In all this we see nothing that the people in charge of the bark did which it was not their duty to do by the international rules. It was their duty to keep her steady on her course, and it was the duty of the steamer to see the bark and to avoid a collision.
On the other side, it appears that the steamer, which was a large and powerful one, 416 feet long and 38 feet beam, was coming towards the bark, end on, at about 11 knots an hour; that she had a lookout on the lee side of her bridge, (which was over 150 feet from her bow,) where the officer in charge of the deck also was, but had no other lookout on duty. The rest of the watch, except the man at the compass and one at the wheel, were underneath the turtle-back, or top-gallant forecastle. No lookout was on the turtle-back, although it would have been entirely safe to station one there. The omission to do so was for the alleged reason that the vessel was plunging into a head-sea, and taking so much water over her bows that he would have been of no use there. The bark was not seen by those in charge of the steamer until just at the instant of the collision; yet objects could be seen at a distance of from 500 yards to a mile, and the port light of the bark was seen by a steerage passenger on the steamer, looking out of his room just under the bridge, and was reported to his room-mates long enough before the collision to enable the second steerage steward, who heard the report, to go up the companionladder, cross the deck, and reach the steamer's rail.
We think that these facts furnished a sufficient ground for the conclusions at which the court arrived, as before rehearsed; the substance of which was that the collision occurred by the negligence of those having charge of the Belgenland, in not seeing the bark, and in not taking the proper precautions due to such a night and such a sea, by reducing speed and keeping a sufficient lookout.
It is argued that there is no express finding of negligence or fault, as matter of fact, but only as an inference from the facts found. But we think that the facts found furnish such conclusive proof of negligence that it may be regarded as properly found among the conclusions of law as a legal inference from those facts. U.S. v. Pugh, 99 U.S. 265. The counsel of the appellants suppose that the court below found the Belgenland in fault on the mere presumption arising from the fact of collision, and the primary duty of the steamship to avoid it. But this is not a just view of the decision. There was much more in the facts of the case than the existence of such a presumption, as the foregoing rehearsal of the facts clearly shows. The ability to see objects at a distance; the fact that the men in charge of the steamer failed to see the bark, while a passenger did see her from his room; the fact that there was but one lookout for such a large steamer; that other lookouts could have been stationed on the turtle-back; the fact that the speed was not slackened, and no precautions taken to get a better view ahead;-these facts, in addition to the presumption arising from the steamer's duty, present a very different case from that supposed by the appellants. The decision of the court must be taken as the collective result from the whole case. It cannot be judged from mere isolated expressions in the opinion.
The rule contended for by the appellants, that negligence and fault must be proved, and not presumed, is undoubtedly a sound one, and hardly needs cases to support it. But the circuit court evidently did not rest the case on presumption, but pon proof, from which it properly deduced negligence on the part of the steam-ship. At all events, this court, upon a careful consideration of the facts found, is satisfied that there was such negligence, and that it was the cause of the catastrophe.
The decree of the circuit court is affirmed, with interest to be added to the amount from the date of the same.
^2 The International Rules of 1863-Abb. Shipp. (11th Ed.) App. CCCLXIX.; 13 Rev. St. 58-were revised by an order of council, in England, in August, 1879, to take effect from the first of September, 1880, and, as thus revised, have been adopted by most commercial nations. See 4 Prob. Div. 241-249. They were adopted for both public and private vessels of the United States by act of congress approved March 3, 1885. Public act No. 100. They had been adopted for public vessels before. See Luce, Seamanship, (Ed. 1884,) 360.