See also note, foot of p. 717, citing: Code Napoléon, Arts. 1709, 1719, 1721, 1728, 1754, 1755.

733

547

} Labor on Sunday prohibited.......................... 28:3

Factors.

Factors

.33, 37

37

A Circuit Court of the United States has jurisdiction to issue a writ of habeas corpus to determine whether one of the crew of a foreign vessel in a port of the United States, who is in the custody of the state authorities, charged with the commission of a crime, within the port, against the laws of the state, is exempt from local jurisdiction under the provisions of a treaty between the United States and the foreign nation to which the vessel belongs.

Unless exempted by treaty, a foreign merchant vessel, entering a port of the United States for purposes of trade, is subject to the local law, and the local courts may punish for crimes committed upon the vessel, within the port, by one foreigner upon another foreigner. Article XI of the Convention between Belgium and the United States of March 9, 1880, 21 Stat. 781, conferring power upon Belgian consuls in the United States to take cognizance of differences between captains, officers, and crews of Belgian merchant vessels which are in ports of the United States, and providing that the local authorities shall not interfere except when a disorder arises of such a nature as to disturb tranquillity or public order on shore or in the port, does not apply to a case of

The docket title of this case was "No. 1288. Charles Mali, Consul of His Majesty the King of the Belgians, and Joseph Wildenhus, Gionviennie Gobnbosich, and John J. Ostenmeyer, Appellants, v. The Keeper of the Common Jail of Hudson County, New Jersey."

VOL. CXX-1

Statement of Facts.

felonious homicide committed on board of a Belgian merchant vessel in a port of the United States, and does not deprive the local authorities of the port of jurisdiction over such a crime so committed by one Belgian upon the person of another Belgian, both belonging to the crew of the vessel.

THIS appeal brought up an application made to the Circuit Court of the United States for the District of New Jersey, by Charles Mali, the "Consul of His Majesty the King of the Belgians, for the States of New York and New Jersey, in the United States," for himself as such consul, "and in behalf of one Joseph Wildenhus, one Gionviennie Gobnbosich, and one John J. Ostenmeyer," for the release, upon a writ of habeas corpus, of Wildenhus, Gobnbosich, and Ostenmeyer from the custody of the keeper of the common jail of Hudson County, New Jersey, and their delivery to the consul, "to be dealt with according to the law of Belgium." The facts on which the application rested were thus stated in the petition for the writ:

"Second. That on or about the sixth day of October, 1886, on board the Belgian steamship Noordland, there occurred an affray between the said Joseph Wildenhus and one Fijens, wherein and whereby it is charged that the said Wildenhus stabbed with a knife and inflicted upon the said Fijens a mortal wound, of which he afterwards died.

"Third. That the said Wildenhus is a subject of the Kingdom of Belgium and has his domicil therein, and is one of the crew of the said steamship Noordland, and was such when the said affray occurred.

"Fourth. That the said Fijens was also a subject of Belgium and had his domicil and residence therein, and at the time of the said affray, as well as at the time of his subsequent death, was one of the crew of the said steamship.

"Fifth. That at the time said affray occurred the said steamship Noordland was lying moored at the dock of the port of Jersey City, in said state of New Jersey.

"Sixth. That the said affray occurred and ended wholly below the deck of the said steamship, and that the tranquillity of the said port of Jersey City was in nowise disturbed or endangered thereby.

Statement of Facts.

"Seventh. That said affray occurred in the presence of several witnesses all of whom were and still are of the crew of the said vessel, and that no other person or persons except those of the crew of said vessel were present or near by.

"Eighth. Your petitioner therefore respectfully shows unto this honorable court that the said affray occurred outside of the jurisdiction of the said state of New Jersey.

"Ninth. But, notwithstanding the foregoing facts, your petitioner respectfully further shows that the police authorities of Jersey City, in said state of New Jersey, have arrested the said Joseph Wildenhus, and also the said Gionviennie Gobnbosich and John J. Ostenmeyer, of the crew of the said vessel (one of whom is a quartermaster thereof), and that said Joseph Wildenhus has been committed by a police magistrate, acting under the authority of the said state, to the common jail of the county of Hudson, on a charge of an indictable offence under the laws of the said state of New Jersey, and is now held in confinement by the keeper of the said jail, and that the others of the said crew arrested as aforesaid are also detained in custody and confinement as witnesses to testify in such proceedings as may hereafter be had against the said Wildenhus."

ARTICLES 8, 9, and 10 of a royal decree of the King of the Belgians, made on the 11th of March, 1857, relating to consuls and consular jurisdiction, were as follows: 1

1 ART. 8. Nos consuls ont le droit de discipline sur les navires de commerce belges dans tous les ports et rades de leur arrondissement.

En matière de délits ou de crimes, ils font les actes d'instruction, conformément aux prescriptions du Code disciplinaire et pénal de la marine marchande.

Ils réclament, aux termes des conventions ou des lois en vigueur, le concours des autorités locales pour l'arrestation et la remise à bord des marins déserteurs.

ART. 9. Hors le cas où la tranquillité du port aurait été compromise par l'événement, le consul réclamera contre toute tentative que ferait l'autorité locale, de connaître des crimes ou délits commis, à bord d'un navire belge, par un homme de l'équipage envers un homme soit du même équipage, soit de l'équipage d'un autre navire belge.

Il fera les démarches convenables pour obtenir que la connaissance de l'affaire lui soit remise afin qu'elle soit ultérieurement jugée d'après les lois belges.