[402] [403] The facts found by the Court of Claims, and | to him again. Whittle told Hartwell that i upon which the correctness of the judgment was an impossibility to let the money go back to below must depend, are as follows: Carter, and that any deficiency must be paid in before 10 o'clock the next morning. The appellant in February and March, 1867, was a national banking association, having its place of business in the city of Boston, Massachusetts; and there was in that city a firm of brokers under the style of Mellen, Ward. & Co., the junior member of which was Edward Carter. At the same time George D. Whittle was the chief clerk in the office of the Assistant Treasurer of the United States, in Boston, having its general management, and Julius F. Hartwell was disbursing clerk or paying teller. About 9 o'clock A. M. of the 1st of March Hartwell called on Carter at Mellen, Ward & Co.'s office and asked him if he had that mon ey. Carter told him he did not then have it but could give it to him before 10 o'clock and asked Hartwell if he could not take a draft on New York, stating to him that Mellen, Ward & Co. would have a very large amount of New York funds to dispose of as soon as Hartwell returned to them the gold certificates aforesaid. Hartwell said he would take the New York Prior to the 28th day of February, 1867, Mellen, funds, and the interview then ended. It does Ward & Co., acting through Carter, succeeded not appear that up to this time Carter had any in inducing Hartwell to take out of the sub-knowledge or intimation of Hartwell's disclo treasury at various times and to place in Car-sures to Whittle; nor does it appear that Carter ter's hands, large amounts of money belonging informed Hartwell as to how he intended or exto the United States until, first and last, the pected to get the draft on New York. At the sums so abstracted aggregated a million to a close of this interview Hartwell returned from million and a quarter dollars. This money was Mellen, Ward & Co.'s office to the sub-treasury. used by Mellen, Ward & Co. in stock speculations. About the middle of February, 1867, the amount so obtained by Carter being then very large, Hartwell informed him that in the use of the public money they were guilty of a crime. This, it is found by the court below, was the first information Carter had of the criminal character of these transactions. Between the middle of February and the 15% of March, 1867, several conversations were held between Carter and Hartwell, in which the former expressed his purpose to make the latter's money right for the examination of the subtreasury, which was expected to take place on the 1st of March, upon Hartwell's solemn assurance that he would let him have the money out of the sub-treasury again on the 2d of March, after the examination should be over, when Carter would repay the parties the moneys he had obtained, and, selling all the stocks and securities his firm held, replace as much as possible of the money in the sub-treasury so as to reduce the loss to the smallest possible amount. Carter promised Hartwell that he would return all the money before the 1st of April, not again to come out of the sub-treasury. During the period within which those conversations between Carter and Hartwell occurred, the latter knew in a general way the extent of the resources of Mellen, Ward & Co., and how they were using the money he had let Carter have. On the 28th of February Carter returned to Hartwell all the money the latter had let him have except the sum of $157,000, which the former promised to return to him the next morning. Among the funds so returned were United States gold certificates to the amount of $580,000. On the afternoon of the same day Hartwell made known to Whittle that he had been loaning to Carter the funds of the Government, and that all had been returned except about $150,000. He told Whittle that the money had been paid out to Carter from time to time to assist in stock speculations; that it was paid back again to tide over the monthly examination; that he had promised Carter that the money should be repaid to him the following day; and had told him that he would ask Whittle's consent that the money go back About half past nine o'clock of the same morning Carter went to the banking-house of plaintiff and obtained from Charles H. Smith, its cash, his draft, as cashier, on the Manhattan Company, New York, in favor of Mellen, Ward &., for $125,000, which draft was in the words and figures following, to wit: "The State National Bank of Boston, Boston, March 1, 1867. The facts and circumstances connected with his obtaining that draft were as follows: Carter asked Smith for the Bank's draft on New York for $125,000, promising to give him immediately, in return, Mellen, Ward & Co.'s draft on New York for the same amount, with $100,000 in United States_gold certificates attached, or else the Adams Express Company's receipt for that amount in gold. Upon the faith of this promise Smith drew and delivered to Carter the draft aforesaid. In this interview between Smith and Carter nothing was said by the latter about there being any deficiency in the subtreasury for which he was responsible; nor that he desired to use the draft to help make good a deficiency there; nor what his purpose was in obtaining it; nor does it appear that Smith had, at any time before or during this interview, any knowledge or intimation of the transactions between Carter and Hartwell. Within fifteen or twenty minutes after Carter received from Smith the draft for $125,000, the former, at the office of Mellen, Ward & Co., delivered it, together with $32,000 in currency, to Hartwell. The latter paid Carter nothing for the draft; it was passed to him by Carter to make good that deficiency; and Carter supposed it would not be wanted for that purpose over an hour. Neither before nor at the time Hartwell received from Carter the draft for $125,000 did the former know any; thing of the means by which the latter obtained it from Smith. Immediately after Hartwell received that draft and the $32,000 in currency from Carter he took both to the sub-treasury and delivered them to Whittle, who objected to receiving the the rules of the government reb-treasury to receive nothing but rerai-tender notes, or national bank besides, he had an impression that, or other, the plaintiff's cashier ved in the stock speculation which the day before told him of MelCo.'s being engaged in; for Hartthen after Whittle's refusal to let the acain, mentioned, among others, of Smith as one who was going to be e then directed Hartwell to go it the currency. Hartwell tried at As to raise the currency on the draft ** but could not find sufficient yone bank. He then went to the Back of Boston, and obtained change for that draft, three of its = York, one for $75,000, and two ch, with the idea that currency ased in smaller amounts at differAt the hour was so late then-it ten o'clock-that he took the three ⚫y to Whittle at the sub-treasury, "If the said Smith shall hereafter pay to the that he had obtained them from State National Bank the said sum of one hunthe Eagle National Bank, in ex-dred and twenty-five thousand dollars, the Bank izr the draft for $125,000, and that was will return to the sureties the amounts by them cd do. The Government exami- severally paid; or if he shall pay so much thereat that time at work in the sub- of that the Bank shall be in the receipt-includze their monthly examination of the ing the payments made by the sureties-of a [407] Whittle then went out from the surplus beyond one hundred and twenty-five h the three drafts of the Eagle thousand dollars, the Bank will return and disBark, and sold them to the Second tribute such surplus to the sureties in proporof Boston, and returned to the tion to the sums by them severally paid. with the proceeds of the sale, currency, which he turned over, $32,000 aforesaid, to the examisums made up Hartwell's debalanced the cash account of the part of the $157,000 which those de up was ever returned to Harter, or Melien, Ward & Co., or the obtained from Smith; and the three drafts of At the time Smith let Carter have the draft "State National Bank, Boston, received of the amount due from them as sureties on the bond of Charles H. Smith, late cashier of said Bank, by reason of the defalcation of said Smith, resulting from an unauthorized draft made by the said Smith upon the Manhattan Co., New York, for the sum of one hundred and twenty-five thousand dollars ($125,000), which was applied to his own use. ben the draft for $125,000 was Hartwell to Whittle nor when it was by the former for the drafts of the Bank, did Whittle have any notice of the consideration or that draft had been obtained of the appellant; but he had = that Carter had procured it. a forgring transactions occurred, ventarily paid to the Eagle Nathe draft for $125,000 which Carter "But this receipt is not to be construed or understood as an admission or recognition of any obligation on the part of the Bank to take any measures to make up said defalcation, nor as the assertion of any claim by the said Bank upon any funds, property or means whereby the said defalcation or any part thereof can be made good, nor as any admission by the said Bank that any such funds, property, or means are in existence." The present case differs materially from U. S. v. State Bank, 96 U. S., 33 [bk. 24, L. ed. 647]. Our judgment there proceeded upon the ground that the gold certificates deposited in the sub-treasury by Smith, the cashier of the State National Bank of Boston, were known by Hartwell, at the time he received them, to be the property of that Bank, and not of Mellen, Ward & Co. The deposit was made by Smith, in the presence of Carter; and, although the receipt for the certificates was out to Mellen, Ward & Co. or order, it was immediately indorsed by Carter, in the name of his firm, to Smith as cashier. The cancellation of the certificates and their transmission to the Treasurer of the United States at Washington was therefore in derogation of the rights of the bank. It was adjudged that money or property of an innocent person, which had gotten into the coffers of the nation by means of fraud to which its agent was a party, could not be held by the Government against the claim of the wronged and injured party. There is no room in the present case for the application of that principle. Apart from his responsibility for the crime committed in using the money of the United States, Carter, representing Mellen. Ward & Co., was under a legal obligation to replace the amount ab [410] [355] (See S. C., Reporter's ed., 355–373.) Jurisdiction in admiralty in cases arising the high seas between foreigners of differe nationalities-discretion-review of author ties negligence in cases of collision-du of steamers. 1. The Admiralty Courts of the United Stat have jurisdiction of collisions occurring on the hig seas between vessels owned by foreigners of diffe ent nationalities. 2. The courts will use a discretion about assumin jurisdiction of controversies between foreigners i cases arising beyond the territorial jurisdiction such controversies are communis juris specia the country to which the courts belong; yet wher grounds should appear to induce the court to den its aid to a foreign suitor when it has jurisdictio of the ship or party charged. 3. Upon appeal, the action of the court of first ir stance in assuming jurisdiction can only be ques tioned on the ground that its discretion has bee justify the court of appeal in holding that it ha exercised on wrong principles, or so unjustly as t been exercised wrongly. stracted from the sub-treasury. 4. Where the parties are not only foreigners bu belong to different nations, and the injury or sa vage service takes place on the high seas, ther seems to be no good reason why the party injure or doing the service should ever be denied justic in our courts. administered in the courts of the country in whic 5. The general maritime law, as understood an the litigation is prosecuted, should be applied i cases between parties or ships of different nation alities arising on the high seas not within the ju risdiction of any nation. 6. When the facts found furnish conclusive proc of negligence it may be regarded as properly foun amongst the conclusions of law as a legal inferenc from those facts. 7. The facts found in this case show that the col lision occurred by the negligence of those having the barque and in not taking the proper precau charge of the steamship Belgenland in not seein tions due to such a night and such a sea, by reduc ing speed and keeping a sufficient lookout. [No 169.] Argued Jan. 16, 1885. Decided Apr. 13, 1885 they could not be used or withdrawn except in APPEAL from the Circuit Court of th the mode prescribed by law. The essential Bank, ubi supra, and this case is, that in the True copy. Test: United States for the Eastern District o Pennsylvania. in the opinion of the court. For the opinion The history and facts of the case fully appea of this court on certain questions of practice which arose in this case, see bk. 27, 685, 686. Messrs. Morton P. Henry and Henry R Edmunds, for appellants. Messrs. J. Langdon Ward and Henry Flanders, for appellee: The question of jurisdiction is well settled. bk. 19, L. ed. 772); Taylor v. Carryl, 20 How. The Maggie Hammond, 9 Wall.,435 (76 U. S. 611 (61 U. S., bk. 15, L. ed. 1038). sion is evidence of great negligence somewhere. Under the circumstances the fact of a colli The New Orleans, 8 Ben., 102; The Lizzie James H. McKenney, Clerk, Sup. Court, U. S. Major, Id., 333; The Cella, 3 Ben., 168. THEODORE JENSEN, MASTER OF THE If the night was thick her speed of eleven knots against wind and sea was too great. If it was clear the steamer failed to see the bark of a proper lookout. as soon as she should have seen her, for want NOTE.-Admiralty jurisdiction-to what places confined. Allen v. Newberry, 62 U. S. (21 How.), bk. 16, 111, note. Collision-rights of steam and sailing vessels with reference to each other. See St. John v. Paine, 51 U. S. (10 How.), 557, note. L Ben 245; The Hansa, 5 Ben., er's lockout was insufficient. 3. Ward, 21 How., 570 (62 U. S., reamers side-lights were not visible, the 4, Asp. Mar. L. C., 182; 29 L. T. rting of the barque's helm in ex- 5 Wall., 302 (75 U. S., bk. 19, L. favigation do not apply to a vessel pher course after the approach a collision is inevitable. ,19 Wall, 41 (86 U. S., bk. 22, Nichols, 7 Wall., 656 (74 U. S., 157 The Johnson, 9 Wall., 146 19, L. ed. 610); The Dexier, 23 x C. S., bk. 23, L. ed. 84). Bradley delivered the opinion O out of a collision which took seas between the Norwegian -the Belgian steamship Belgenthe former was run down and Part of the crew of The Luna, includwere rescued by The Belgento Philadelphia. The master tied the steamship on behalf of The Luna and her cargo, and Crew, in a cause civil and mari head sea, throwing water over her turtle deck The proctor of The Belgenland at the time of The district court decided in favor of the libelant and rendered a decree for the various parties interested, to the aggregate amount of $50,278.23. An appeal was taken to the circuit court, which found the following facts, to wit: "1. Between one and two o'clock on the morning of September 3, 1879, in mid ocean, a collision occurred between the Norwegian barque Luna on her voyage from Humacao, in Porto Rico, to Queenstown or Falmouth, and the steamship Belgenland on a voyage from Antwerp to Philadelphia, which resulted in the sinking of the barque, in the total loss of the vessel and her cargo and in the drowning of five of her crew. 2. The wind was between S. W. and W. S. W., and there was not much sea but a heavy swell. The barque was running free, heading S. E. by E half E., having the wind on her starboard quarter. All her square sails were set except her main royal, and she carried also her fore, main and mizzen stay-sails and inner jib. Her yards were braced a little, her main sheet was down but the weather-clew was up. She was making about seven and one half knots. Her watch on deck consisted of the first mate and three men; an able seaman was on the lookout on the top-gallant forecastle, and a capable helmsman was at the wheel. She carried a red light on her port side and a green light on her starboard side, properly set and burning brightly, which could be seen, on a dark night and with a clear atmosphere, at last two miles. The character and location of these lights conformed to the regulations of the barque's nationality, which are the same as those of the British Board of Trade. About 1.45 o'clock the lookout sighted the white masthead light of a steamer right ahead, distant, as he thought, about a mile, and reported it at once to the mate, who cautioned the man at the wheel to "keep her steady and be very careful," and the barque held her course. ad in substance that the barque ks, was on a voyage from Porto own or Falmouth, with a cargo when in latitude 44° 33′ and was met by the steamship on, between one and two in run down and sunk by her crew escaping; that the hip was observed right ahead e off, that the barque kept washer duty to do; and that the to measures to avoid her but until she struck The Luna; was altogether the fault No side-lights on the steamer were seen from art of the steamship. the barque, but as the vessels approached each the Belgenland appeared for other the white light of the steamer gradually 19d an answer denying that drew a little on the port bow of the barque for e of the collision was sail- three or four minutes. The mate of the barque egd, and averred that she seeing the steamer's sails and that she was headof the steamship, and ing directly for the barque, was close aboard of ad her course, and that this her, and reasonably apprehending that a collithe collision: that The Luna sion was inevitable, ordered the barque's helm ered until the instant of the col- hard a-port. In a few seconds the steamer's too late to alter the course starboard light came into view, and in another and that the reason why the instant she struck the barque on her port side, 2 eet before was that she was cutting her in two obliquely from the after part ver of rain and mist; and of her fore rigging to the fore part of the main Se dramatig was plunging into a heavy | rigging. [358] [359] [360] 3. The Belgenland was steering N.W. by W. | out of the way of the barque, and, to that en half W. by compass, and making about eleven so to change her course as to preclude all dang knots. Her second officer had charge of the of collision. deck, and his watch was composed of ten able seamen, two quartermasters, the second boatswain and the fourth officer. One able seaman was stationed on the lee or starboard side of the bridge, as a lookout. The second officer was on the bridge. The fourth officer was stationed at the after or standard compass, which was near the mizzen-mast, but at the time was on the bridge, having come there to report a cast of the log. A quartermaster was at the wheel. The rest of the watch was underneath the turtleback or top-gallant forecastle. The steamer was 416 feet long and about 38 feet beam. The bridge was 150 or 180 feet from her bow, and was six or seven feet higher than the top of the turtle-back, which was about 25 feet above the water. The steamer had her fore, main and mizzen try-sails, fore stay-sails and jib set and drawing, and probably her jigger also. She heeled to starboard from ten to fifteen degrees. 4. The only lookout on the steamer was on the bridge. None was on the turtle-back, although it would have been entirely safe to station one there, for the alleged reason that the vessel was plunging into a head sea and taking so much water over her bows that he woulu have been of no use there. 5. The barque was not seen by those in charge of the steamer until just at the instant of the collision, when the second officer saw her head sails just across the steamer's bow, the lookout in the lee side of the bridge saw her after-sails and stern. 6. The moon was up, but was obscured by clouds. There was no fog, but occasional rain with mist, and the wind was blowing from the S. W. to W. S. W. 7. Objects could be seen at the distance of from five hundred yards to a mile. The masthead light of the steamer was sighted and at once reported by the lookout on the barque, at the distance of about a mile; the port light of the barque was seen by a steerage passenger on the steamer, looking out of his room just under the bridge, and reported to his roommates long enough before the collision to enable the second steerage steward, who heard the report, to go up the companion ladder, cross the deck and reach the steamer's rail; after the collision the mizzen-mast of the barque was all of her above water, and this was distinctly seen from the steamer when she was at the distance of five hundred yards from it. 8. The damages caused by the collision were assessed at $50,248.23. Upon these facts the court below deduced the following conclusions: 1. That the vessels were approaching each other from opposite directions, upon lines so close to each other as to involve the necessity of a deflection by one or the other of them to avoid a collision. 2. That the lookout on the barque saw the steamer when she was nearly a mile distant, and she was held steadily on her course, and that she thereby fulfilled her legal obligation. Even if her helm was ported it was at a time and under circumstances which did not involve any culpability on her part. 3. That it was the duty of the steamer to keep 4. That the barque could and ought to ha been seen by the steamer when they were su ciently distant from each other to enable t steamer to give the barque enough sea-room avert any risk of collision. In this failure observe the barque the steamer was negliger 5. No satisfactory or sufficient reason is fu nished by the respondent's evidence for th failure of observation. If it resulted from t inattention of the steamer's lookout, or becau their vision was intercepted by her fore tr sail, she was clearly culpable. If it is exp cable by the condition of the atmospherematter by what cause it was produced-it w the steamer's duty to reduce her speed and place a lookout on her turtle-back. An om sion to observe these precautions was neg gence. But considering the proof that the barq held her course and that the steamer mig have seen her by proper vigilance, when suit ble precaution against collision might ha been taken, a mere speculative explanation the steamer's presumptive culpability cannot accepted as sufficient. A decree was thereupon entered affirmin the decree of the district court in favor of libelants for the sum of $50,748.23, with inte est from March 25th, 1861, amounting $51,954.14, and costs. A reargument was had on the question jurisdiction, and the court held and decided th Admiralty Courts of the United States ha jurisdiction of collisions occurring on the hig seas between vessels owned by foreigners different nationalities; and overruled the plea the jurisdiction. The case is now before us o appeal from the decree of the circuit court. The first question to be considered is that the jurisdiction of the district court to he and determine the cause. It is unnecessary here, and would be out place, to examine the question which has s often engaged the attention of the common-la courts, whether and in what cases the cour of one country should take cognizance of co troversies arising in a foreign country or i places outside of the jurisdiction of any country It is very fully discussed in Mostyn v. Fabrig and the notes thereto, in 1 Smith, Lead. Cas 765; and an instructive analysis of the law wi be found in the elaborate arguments of couns in the case of the San Francisco Vigilant Con mittee (Malony v. Dows, 8 Abb. Pr., 316), argue before Judge Daly in New York, 1859. W shall content ourselves with inquiring what ru is followed by courts of admiralty in dealin with maritime causes arising between foreig ers and others on the high seas. This question is not a new one in these court Sir William Scott had occasion to pass upon in 1799. An American ship was taken by th French on a voyage from Philadelphia to Lo don, and afterwards rescused by her crew, ca ried to England and libeled for salvage; an the court entertained jurisdiction. The crev however, though engaged in the American ship were British-born subjects, and weight wi given to this circumstance in the disposition the case. The judge, however, made the fo |