No. 13.
Baron Schaeffer to Mr. Frelinghuysen.
[Extract.]
Washington, February 19,
1883. (Received February 20.)
Sir: * * * I am now directed by my Government
to bring to your notice their views with respect to the lamented case,
which I do by the inclosed memorandum, asking you to give it due
consideration and to let me know whether you are inclined to adopt the
interpretation of our consular convention therein contained, or to
indicate to me the means, that, in future, similar proceedings on the
part of your local courts could not any more take place.
In order to be able to appreciate the reasons given by the
Austro-Hungarian Government, I venture to remind you of similar cases of
two American vessels in foreign ports which came to my knowledge, viz,
the Newton and the Sally. The first was in the port of Antwerp, where
the American consul and the local authorities both claimed exclusive
jurisdiction over an assault committed by one of the seamen belonging to
the crew against another, in the vessel’s boat. The second was in the
port of Marseilles, where exclusive jurisdiction was claimed both by the
local tribunals and by the American consul as to a wound inflicted by
the mate on one of the seamen in the alleged exercise of discipline over
the crew. The American consul insisted upon his sole
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right of jurisdiction, and the matter having
been brought before a higher tribunal, the latter pronounced against the
jurisdiction of the local authorities.
Finally, I have only to add that your letter of the 3d January, 1883,
with the draft of an additional article to our consular convention of
1870, has not yet been in the hands of the Austro-Hungarian
Government.
Accept, &c.,
[Inclosure.]
Memorandum of the Austro-Hungarian Government
with respect to the arrest of Captain Randich.
Although the said captain has been acquitted, the Austro-Hungarian
Government feels itself compelled to call the earnest attention of
the Government of the United States to the proceedings instituted in
this case by the local court at Philadelphia, which for various
reasons gives cause for serious apprehensions.
According to the general principles of international law, the local
jurisdiction with respect to foreign private vessels entering
domestic ports for the purpose of trade is beyond all present
controversy, yet, in practice, nations, following the maritime
jurisprudence of France, have inclined to the rule established by
that country that local courts should decline to take jurisdiction
of cases involving acts of mere interior discipline of such foreign
vessel, or of crimes and offenses committed by persons forming part
of its officers and crew against other persons belonging to such
vessel whenever the acts committed on board such vessel are not of a
nature to disthan the local peace and public order in port or on
shore, or whenever persons, other than the officers and crew of such
vessel, are not parties to the disturbance.
This principle has been adopted in modern times in international
conventions regulating questions of this character, and it has been
specially embodied in the various consular conventions which
Austria-Hungary has concluded with foreign powers, and particularly
in the convention with the United States concerning the rights,
privileges, and immunities of consuls in the two countries,
concluded in the year 1870.
The provisions of this last convention limit the right of
intervention by the local authorities to the class of cases
indicated. A similar provision in the consular conventions with
France, Portugal, and Italy has been in practice always construed to
mean that the local authorities of these countries were not
empowered to take cognizance of a criminal offense, committed on
board a foreign merchant vessel, whenever such offense was
committed, as indicated, by one of the crew against an officer or
against another of the crew.
The Austro-Hungarian Government must therefore positively deny the
right of the local court at Philadelphia to have instituted such
proceedings, or to have entertained jurisdiction of the present
case.
The Austro-Hungarian Government is furthermore compelled to make
complaint respecting the proceedings connected with the arrest of
Capt. A. Randich.
As appears by the report of the consul, it was the intention of the
court to cause the arrest of the said captain on board his vessel,
and the court, or the officers, failed to inform the consul of this
intended arrest or of the proposed proceedings, and to request, as
they should have done, the intervention of the consul in the
matter.
The Austro-Hungarian Government claims that the local authorities
cannot in any case exercise their jurisdiction over foreign merchant
vessels without first bringing the case to the knowledge of the
consul of the country to which such vessel belongs.
The course pursued by the court at Philadelphia in this case seems
therefore to be inconsistent with the spirit of the law of nations.
It is in precisely such cases as the present that the intervention
of the foreign consul would seem to be most desirable, in order to
protect foreign officers from any unauthorized restraint of their
personal liberty.
Probably the arrest of the captain would not have been made if a
timely opportunity had been offered the consul for his
intervention.
