BETTS, District Judge.
An objection is taken by the claimants to the mode of proceeding adopted in this cause, which is deemed by them to be of great importance in its bearing U}»n the merits; as is also the omission in the original and supplemental libel of any averment that the master of the Reliance entered in his log a full specification of the articles taken by him from the Lady Kenneway. Th$ conclusion to which the court has arrived upon another branch of the defence will, however, render it unnecessary to consider those points.
I have carefully examined all the proofs in the cause, as well those taken originally in this action as those introduced by stipulation from the suits prosecuted on behalf of the United States, in order that I might satisfy my mind whether the libellants had established a case of manifest justice on their part; and whether the property under arrest was so circumstanced as to render'it important to all interested in it, that this court should determine to what extent it was chargeable in behalf of the libellants; or whether, in order to insure the ultimate realization of its value to those concerned, it was advisable that the court should decree its sale; for I regard it as resting in the sound discretion of the court, on all the facts and circumstances of the case, to exercise or decline jurisdiction over the property arrested.
As a general principle, the citizens or subjects of the same nation have no right to invoke a foreign tribunal to adjudicate between them, as to matters of tort or contract solely affecting themselves. It rests in the discretion of the court, whose authority is invoked, to determine whether it will take cognizance of such matters or not. 2 Rea v. Hayden, 3 Mass. 24; Gardner v. Thomas, 14 Johns. 134; Johnson v. Dalton, 1 Cow. 548; The Gourtney, Edw. Adm. 239; The Madonna, 1 Dod. 37. The last two cases in admiralty proceed upon the same doctrine, although maritime courts will probably exercise a discretion in support of actions between foreigners, upon a broader view of collateral equities than would be entertained by courts of law. The Jerusalem [Case No'. 7,293].
As maritime courts proceed upon a common rule of right and compensation in salvage cases, the question of jurisdiction in that class of actions will seldom be raised or regarded before them.
The courts will take cognizance of those [705]*705cases as matters of course, if either party is territorially 'within the jurisdiction of the court; and the property being brought within their jurisdiction, although the salvors and claimants may be citizens or subjects of different nations, the court will unhesitatingly dispose of the subject, if satisfied that the whole right is before it, — salvage being essentially a question of the jus gentium. The Two Friends, 1 C. Rob. Adm. 271; The Blaireau, 2 Cranch [6 U. S.] 248.
In The Jerusalem [supra], Judge Story maintains strenuously the propriety of admiralty courts taking cognizance, it would seem, of all actions in rem, although foreigners are solely interested, whenever the situs rei under contestation is found within their territorial authority. But his reasoning still moves within the qualification that the court, having the legal capacity to adjudicate in such matters, is not bound to remit them to the forum of the litigant parties.
Guarded by that limitation, the rule may be serviceable to the navigation and intercourse of commercial nations, and be of convenient and wholesome application.
I find no authority of weight which imposes on the courts of our country the necessity of determining controversies between foreigners resident abroad, either in common-law actions, transitory in their nature, or maritime proceedings when the remedy is in rem.
If the doctrine were peremptory, imparting to suitors the right to such aid, and imposing on co.urts the obligation to afford it, actions, for supplies and materials, on charter-parties' and bills of lading, or by mechanics for labor, would be comprehended within the class, equally with suits for wages on bottomry bonds or for salvage compensation.
I am satisfied the law is not so. In my judgment it would be lamentable if courts were compelled to defer the business of the citizens of the country to bestow their time on litigations between parties owing no allegiance to its laws, and contributing in no way to its support.
Should it transpire, in the progress of the litigation, that the law of the domicile of the parties must be ascertained in order to adjudge rightly on their claims, or that witnesses must be examined there to fix the facts in controversy, the court might be compelled to suspend its movement, and wait until these cardinal particulars could be supplied from abroad. Every tribunal experiences the inconvenience and unsatisfactoriness of so settling controversies between those even who can have no other means of redress, and will recognize the value of the principle which enables them, in regard to foreigners, to remit their controversies to their home tribunals, where the law is known, and the facts can be more surely determined.
This court has, in repeated instances, acted upon this acceptation of the law; and believing it to be the sound and safe rule, I shall adhere to it in all cases authorizing that exercise of discretion.
The question to be considered is, whether, in this case, the rights of parties would be best promoted by retaining the case and disposing of the subject here, or by remitting it to the home courts of the salvors and claimants.
The answer advances many grave imputations against the conduct of the master and seamen on board the wreck, and after the property came into their possession, and these charges are not without color of proof to support them. Their case does not, accordingly, come before the court with the most persuasive claims to its interposition and favor. When salvage services are eminently meritorious, and the only inquiry to be made is the rate of reward to be allotted, admiralty courts would be solicitous to give every practicable dispatch to. suits by the salvors, and relieve them both from delay and expense in obtaining their just reward. It would scarcely occur that any court would withhold its aid from such suitors.
It is quite different when the foreign owner of the property charges his fellow-subject with embezzlement and spoliation, and other wanton misconduct in respect to it, and prays the privilege to contest his claim to compensation before the authorities of their common country.
Independent of that aspect of this case, it is attended by other particulars most proper to be inquired into and adjudicated by an English court, and which eould hardly be fitly appreciated or justly disposed of by a foreign one. There are several of these particulars:
1. The application and effect of certain provisions in two acts of parliament in relation to salvage services.
The claimants supposed this transaction within the provisions of the act of 1 & 2 Geo. IV., c. 75, and that the master of the Reliance had acted in direct violation of section 13 of that statute.
It had escaped the notice of the advocates that the acts of 9 & 10 Viet. c. 09, § 2, repeals the former statute. The latter act has been closely criticized by English writers, because of its unskilful and somewhat confused enactments (Law Mag., Feb., 1847. art. 2); yet section 30 would seem, notwithstanding, to embody substantially the provisions of section 13 of the act of 1 & 2 Geo. IV.
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BETTS, District Judge.
An objection is taken by the claimants to the mode of proceeding adopted in this cause, which is deemed by them to be of great importance in its bearing U}»n the merits; as is also the omission in the original and supplemental libel of any averment that the master of the Reliance entered in his log a full specification of the articles taken by him from the Lady Kenneway. Th$ conclusion to which the court has arrived upon another branch of the defence will, however, render it unnecessary to consider those points.
I have carefully examined all the proofs in the cause, as well those taken originally in this action as those introduced by stipulation from the suits prosecuted on behalf of the United States, in order that I might satisfy my mind whether the libellants had established a case of manifest justice on their part; and whether the property under arrest was so circumstanced as to render'it important to all interested in it, that this court should determine to what extent it was chargeable in behalf of the libellants; or whether, in order to insure the ultimate realization of its value to those concerned, it was advisable that the court should decree its sale; for I regard it as resting in the sound discretion of the court, on all the facts and circumstances of the case, to exercise or decline jurisdiction over the property arrested.
As a general principle, the citizens or subjects of the same nation have no right to invoke a foreign tribunal to adjudicate between them, as to matters of tort or contract solely affecting themselves. It rests in the discretion of the court, whose authority is invoked, to determine whether it will take cognizance of such matters or not. 2 Rea v. Hayden, 3 Mass. 24; Gardner v. Thomas, 14 Johns. 134; Johnson v. Dalton, 1 Cow. 548; The Gourtney, Edw. Adm. 239; The Madonna, 1 Dod. 37. The last two cases in admiralty proceed upon the same doctrine, although maritime courts will probably exercise a discretion in support of actions between foreigners, upon a broader view of collateral equities than would be entertained by courts of law. The Jerusalem [Case No'. 7,293].
As maritime courts proceed upon a common rule of right and compensation in salvage cases, the question of jurisdiction in that class of actions will seldom be raised or regarded before them.
The courts will take cognizance of those [705]*705cases as matters of course, if either party is territorially 'within the jurisdiction of the court; and the property being brought within their jurisdiction, although the salvors and claimants may be citizens or subjects of different nations, the court will unhesitatingly dispose of the subject, if satisfied that the whole right is before it, — salvage being essentially a question of the jus gentium. The Two Friends, 1 C. Rob. Adm. 271; The Blaireau, 2 Cranch [6 U. S.] 248.
In The Jerusalem [supra], Judge Story maintains strenuously the propriety of admiralty courts taking cognizance, it would seem, of all actions in rem, although foreigners are solely interested, whenever the situs rei under contestation is found within their territorial authority. But his reasoning still moves within the qualification that the court, having the legal capacity to adjudicate in such matters, is not bound to remit them to the forum of the litigant parties.
Guarded by that limitation, the rule may be serviceable to the navigation and intercourse of commercial nations, and be of convenient and wholesome application.
I find no authority of weight which imposes on the courts of our country the necessity of determining controversies between foreigners resident abroad, either in common-law actions, transitory in their nature, or maritime proceedings when the remedy is in rem.
If the doctrine were peremptory, imparting to suitors the right to such aid, and imposing on co.urts the obligation to afford it, actions, for supplies and materials, on charter-parties' and bills of lading, or by mechanics for labor, would be comprehended within the class, equally with suits for wages on bottomry bonds or for salvage compensation.
I am satisfied the law is not so. In my judgment it would be lamentable if courts were compelled to defer the business of the citizens of the country to bestow their time on litigations between parties owing no allegiance to its laws, and contributing in no way to its support.
Should it transpire, in the progress of the litigation, that the law of the domicile of the parties must be ascertained in order to adjudge rightly on their claims, or that witnesses must be examined there to fix the facts in controversy, the court might be compelled to suspend its movement, and wait until these cardinal particulars could be supplied from abroad. Every tribunal experiences the inconvenience and unsatisfactoriness of so settling controversies between those even who can have no other means of redress, and will recognize the value of the principle which enables them, in regard to foreigners, to remit their controversies to their home tribunals, where the law is known, and the facts can be more surely determined.
This court has, in repeated instances, acted upon this acceptation of the law; and believing it to be the sound and safe rule, I shall adhere to it in all cases authorizing that exercise of discretion.
The question to be considered is, whether, in this case, the rights of parties would be best promoted by retaining the case and disposing of the subject here, or by remitting it to the home courts of the salvors and claimants.
The answer advances many grave imputations against the conduct of the master and seamen on board the wreck, and after the property came into their possession, and these charges are not without color of proof to support them. Their case does not, accordingly, come before the court with the most persuasive claims to its interposition and favor. When salvage services are eminently meritorious, and the only inquiry to be made is the rate of reward to be allotted, admiralty courts would be solicitous to give every practicable dispatch to. suits by the salvors, and relieve them both from delay and expense in obtaining their just reward. It would scarcely occur that any court would withhold its aid from such suitors.
It is quite different when the foreign owner of the property charges his fellow-subject with embezzlement and spoliation, and other wanton misconduct in respect to it, and prays the privilege to contest his claim to compensation before the authorities of their common country.
Independent of that aspect of this case, it is attended by other particulars most proper to be inquired into and adjudicated by an English court, and which eould hardly be fitly appreciated or justly disposed of by a foreign one. There are several of these particulars:
1. The application and effect of certain provisions in two acts of parliament in relation to salvage services.
The claimants supposed this transaction within the provisions of the act of 1 & 2 Geo. IV., c. 75, and that the master of the Reliance had acted in direct violation of section 13 of that statute.
It had escaped the notice of the advocates that the acts of 9 & 10 Viet. c. 09, § 2, repeals the former statute. The latter act has been closely criticized by English writers, because of its unskilful and somewhat confused enactments (Law Mag., Feb., 1847. art. 2); yet section 30 would seem, notwithstanding, to embody substantially the provisions of section 13 of the act of 1 & 2 Geo. IV. At all events, it more appropriately belongs to the English judiciary to settle its meaning, and determine whether the master of the Reliance has acted in violation of the directions of the statute; as also what were his obligations by the local law, under the circumstances, in regard to the wrecked vessel or her cargo.
If that statute applies to this transaction, then there is a further and urgent reason for referring the whole matter to the English courts, because the master would, by the provisions of the act, be subject to a penalty [706]*706of £100, and double the value of the goods taken by him, for failing; on the return of his vessel, to bring before the commissioner of salvage or the high court of admiralty, the property removed from the Lady Kenneway.
2. The Lady Kenneway was, shortly after the libellants left her, saved and taken into England. Most intimately, if not necessarily, connected with the manner and merit of the salvage of the vessel and the appropriate reward for it, must be that also of the salvage of the cargo, whether made by one or different sets of salvors. The Emma, 2 W. Rob. Adm. 315.
3. The termination of the voyage of the Reliance was in England, where it is to be presumed she would arrive within a short period after leaving this port, and it is most fitting that the question of the obligations and privileges of her master and crew, in respect to services rendered a British vessel, a wreck or in distress on the English coast, should be determined in the courts of that nation.
4. The shawls taken from the wreck were of great price, composing the chief value of all the property removed to the Reliance. It was found on the trials before referred to, that these articles were essentially adapted to the English and European market, and were comparatively unsalable in the American market They were transshipped from a vessel bound to London, and near her destination, and it is a question of deep import,, which cannot be evaded in the decision of the cause, whether the conduct of the master of the Reliance, in transporting such a cargo, situated as he found this, to a distance so remote from its proper and available market, was excusable; and even if excusable in law, whether he can found upon it a claim to remuneration as for a meritorious salvage.
Not only is this question itself more suitably ' addressed to the consideration of an English than an American court, but an ingredient for its just disposition not in the case before me, must necessarily be brought to the attention of the tribunals there — the' actual condition of the Lady Kenneway at the time, and the facility or delay the Reliance would have incurred in saving her, in the estimation of her salvors, or of persons who visited her after she had been deserted.
Other particulars in the case, of no unimportant influence, might also be referred to, but enough have been stated to satisfy my judgment that the exercise of a sound discretion requires me to dismiss this prosecution, and remit the property and cause to the proper forum in Great Britain.
A decree will accordingly be entered, discharging the property from arrest, each party to pay his own costs in this court, except that in respect to the British consul, who intervened officially in protection of the rights of absent and unknown owners, his taxable costs are to be paid before the order for delivering up the property is executed. It will be manifest from the face of the order, that the payment of these costs is compulsory, and by authority of the court having possession of the property, and as a condition to its surrender; and it will doubtless be a document which may avail in evidence before the British tribunals, and be there regarded in the final award of compensation and costs between the libellants and the owners of the property.
I regrftfcthat other engagements in the circuit court, and in the business before this court having precedence of this cause, have delayed the disposal of the case much beyond the period usual in these courts, after a hearing is completed. But as the property is not in its nature ‘perishable, it is presumable that no other consequence has resulted from a delay of six weeks; than an inconvenience to the parties: to the one in having the reward they may be entitled to deferred, and to the other in losing for the time the use or proceeds of the property.
As the libellants may not reclaim the property attached in their behalf, the decree will make provision enabling the claimants who have intervened in their own right, and the British consul in behalf of unknown owners, to take the goods out of court and ship them to their port of destination.
Decree accordingly.