The Wind , 22 F. Supp. 883 ( 1938 )

DICKINSON, District Judge

(dissenting).

Several questions were pressed at the argument of this case. The view taken by the majority has reduced them to one. That is the question of the jurisdiction of this court to judicially act. The allowance of the motion to dismiss is based upon the proposition that the treaty between the United States and Norway gives ex-elusive jurisdiction to the Norway consul, and that he alone may act. This is said to exclude the jurisdiction of the cojirts of the.United States. The motion is restricted to the averments of the libel. These are in effect that the respondents have taken possession of the vessel and are holding it by virtue of no law other than the good old Rob Roy rule of physical power. No one would pretend justification of the acts of the respondents, except the justification that the members of one labor union have the 'right to employment as the crew of the vessel to the exclusion of the members of another union. Except for this, the acts of the respondents must be admitted to .be plain piracy. The libel, at least in form, has a purely possessory purpose. It raises the question of title to a vessel. Admiralty clearly has jurisdiction in such cases. The fact, if it be one, that the interested parties are aliens does not, in itself, oust the jurisdiction of the courts. The question thus becomes whether the treaty forbids its exercise. There is an allowable distinction between jurisdiction and its exercise. The treaty undoubtedly in the case of foreign ships remits certain types of disputes to the arbitrament of the foreign consul concerned. His jurisdiction is referred to as exclusive, and its exercise is committed to him alone. The concluding language of the treaty provision, however, is that it shall not interrupt the jurisdiction of the courts under local laws. The provision is the one usually in treaties. The construction given to it has always been that of an extension of the doctrine of comity applied by the courts of concurrent jurisdiction. When the consul assumes jurisdiction, the courts refrain from its exercise., The question thus divides itself into two: First, does the court have jurisdiction; secondly, should it exercise it. To hold in this case that the court does not have jurisdiction is to hold that a foreign vessel may be seized by any one, and that the law affords no redress to the owner, unless the foreign law allows one. We grant that if the process of the courts interferes with the e-xercise of the jurisdiction conferred by treaty upon the foreign consul, the courts should not assert their jurisdiction. There is no such interference here, however. The consul expressed his acquiescence in the exercise of the jurisdiction of.this court.

I would deny the' motion to dismiss.