No. 13.
Baron Schaeffer to Mr. Frelinghuysen.


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 [Page 13] 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.,


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.