No. 281.

Mr. Bayard to Mr. Roustan .

Sir: With reference to the reply of this Department of the 6th instant to your note of the 31st ultimo, concerning the alleged conflict between the provisions of section 10 of the act of Congress, approved June 26, 1884, known as the shipping act, and the stipulations of Article VIII of the convention of February 23, 1853, between this country and France, I now have the honor to communicate to you the conclusions arrived at by this Government after the full and careful consideration of the subject demanded by its importance.

In your note, after referring to the provision in section 10 of the shipping act prohibiting the payment of advance wages to seamen, you suggest that this provision cannot be reconciled with the stipulations of Article VIII of the convention of February 23, 1853.

You further suggest that said provision infringes upon the rights of the different nations to determine according to their own legislation the duties and obligations of their merchant captains towards their crews on the merchant vessels of their own nations; and while conceding the right of this Government to forbid American captains in home or foreign ports to make payment of advance wages to their crews, you ask whether such right can legally be extended to French captains who enlist French sailors in the ports of the United States. You view the subject as presenting a question of the right of French captains over French sailors, rights concerning which what you call the very general [Page 387] terms of the final provision of section 10 of the act might raise difficulties between the Federal authorities and the consuls.

The views expressed in your note are apparently not only based upon a conception not sufficiently broad of the power of this Government to affect by its legislation foreign merchant ships when within its territorial jurisdiction, but also upon a misconception, it is apprehended, of the scope and operation of the statutory provision prohibiting the payment of advance wages to seamen to which you refer.

That provision is from its subject-matter of the nature of a commercial regulation. Commerce, in its simplest signification, means an exchange of goods, but, in the advancement of society, labor, transportation, intelligence, care, and various mediums of exchange, become commodities and enter into commerce 5 the subject, the vehicle, the agent, and their various operations, become the objects of commercial regulation. (9 Wheaton, 229.) The officers and crew of a merchant vessel are as much the instruments of commerce as the ship. (7 Howard, 408.)

The immediate purpose of the provision of section 10 of the act in question is to protect the interests and promote the welfare of merchant seamen while sojourning at American ports, persons whose occupation is indispensable to maritime commerce, and who are objects of solicitude and care in the codes of all commercial nations. They are characterized as usually a heedless and ignorant but most useful class of men, exposed to constant hardships, perils, and oppression, and in port the ready victims of temptation and fraud (3 Kent Com., 176), as notoriously and proverbially reckless and improvident, and on all accounts requiring, protection against themselves (Sh. Minerva, 1 Hagg., 355), as credulous, complying, and easily overreached, and requiring to be treated in reference to their bargains as courts of equity treat young heirs in dealing with their expectancies, wards with their guardians, cestuis que trusts with their trustees (Harden vs. Gordon, 2 Mason, 556). Legislation for their security and protection when employed in the merchant service was early adopted by Congress (act of July 20, 1790, chap. 29), and has been enacted from time to time down to the present, containing many wise and wholesome provisions directed to that end. (See Revised Statutes, Title LIII.)

The provision now under consideration deals with the subject of the wages of those seamen who are hired in American ports, and those only. It is thereby made unlawful to pay advance wages to the seaman himself before he leaves the port at which he is engaged, or to pay the same (i. e., advance wages of such seaman) to any person; and this by the express terms of the statute applies to foreign as well as to American vessels. The power of Congress to regulate the employment or hire of merchant seamen within the ports of the United States cannot be questioned. There is no principle of international law which forbids the application of such legislation to foreign ships.

Marshall, C. J., observes in The Exchange, 7 Cr., 136:

The jurisdiction of the nation is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a diminution of its sovereignty to the extent of the restriction and an investment of that sovereignty to the same extent in that power which could impose such restriction. All exceptions, therefore, to the full and complete power of a nation within its own territories must be traced up to the con-’ sent of the nation itself. They can flow from no other legitimate source.

Hence, a foreign merchant vessel going into the port of a foreign state subjects herself to the laws of that state and is bound to conform to its commercial as well as to its police and other regulations during the [Page 388] period of her stay there. “She is as much a subditus temporeneus,” remarks Sir R. Phillimore with reference to such a case, in The Queen vs. Keyn, 2 Ex. D., 82, “as the individual who visits the interior of the country for the purposes of pleasure or business.”

From this doctrine it follows that in extending the provision adverted to so as to make it applicable to foreign merchant ships within our ports the same as to American vessels, Congress has not assumed to deal with any rights of such ships with which on principles of international law it is not entitled to interfere, nor has it exceeded the proper limits of its jurisdiction, having regard to the rights of other nations. Therefore, unless exempted from the operation of the provision by virtue of some treaty or statute having that effect, no nation has any valid ground to claim for its merchant shipping, in any case or under any circumstances, immunity from observance thereof. Whether the seaman hired or engaged in one of our ports by a foreign ship is or is not of the same nationality as the vessel is wholly immaterial, the language of the provision being general and including (as it may properly do) all merchant seamen who are there hired or engaged by such ship, irrespective of their nationality.

In regard to the supposed conflict between the statutory provision and Article VIII of the convention of February 23, 1853, between this country and France, this Government holds that the subject-matter of the one is entirely distinct from that of the other, and that no collision necessarily arises.

By that said article of the treaty the respective consuls—

Shall have exclusive charge of the internal order of the merchant vessels of their nation, and shall alone take cognizance of differences which may arise, either at sea or in port, between the captain, officers and crew without exception, particularly in reference to the adjustment of wages and the execution of contracts.

The word “execution” is obviously used here in the sense of performance.

This provision accords the consular officer—

(1)
A limited police jurisdiction over the merchant vessels of his nation, embracing only those acts which relate to the interior discipline of the vessel, and which do not disturb the peace and good order of the port. With respect to that jurisdiction the scope of the provision is precisely determined by the word “internal.”
(2)
A limited cognizance of civil controversies between the officers and the crews of such vessels, particularly those relating to the performance of contracts of service and the adjustment of wages thereunder.

It seems very plain to this Government that a public law of the port which prohibits the payment of advance wages to seamen, hired at that port, before the vessel sails, does not concern the “internal order” of such vessel in contemplation of the above provision; and it is difficult to see wherein the law could become a subject of “difference” between the officers and crew of the vessel. In hiring a seaman at an American port, the master of a ship can make no valid agreement to pay advance wages before leaving the port, for the reason that such payment is prohibited by the public law of the place. Should he do so, and fail to pay the advance, this might give rise to a “difference” between him and the seaman, but it would be a difference manifestly involving no conflict between the law and the treaty. On the other hand, should the master pay the seaman advance wages, the enforcement of the law against the former could not, in any point of view, be deemed an interference in a “difference” between, the two individuals.

[Page 389]

This Government holds that the provisions of section 10 of the act of June 26, 1884, are designed to regulate dealings with seamen who are commorant in the ports of the United States and with whom shipping agreements are there entered into. They do not apply to dealings with the seamen under such agreements made elsewhere. Obligations arising out of the latter agreements are unaffected by the statute; the former can give rise to no obligation the performance of which involves an infraction of its provisions.

In brief, the conclusions reached by this Government upon the points presented by your note are as follows:

(1)
That the provisions of the act of June 26, 1884, respecting the payment of advance wages, in so far as they apply to foreign shipping, are not in conflict with the stipulations of Article VIII of the convention of February 23, 1853, between this Country and France.
(2)
That the provisions of said act infringe upon no principles of international law which other nations are entitled to exercise within American ports as regards their merchant vessels.
(3)
That therefore those provisions can legally extend to French captains who hire French sailors in American ports, and that in extending, as they do to them, they violate or prejudice no right of such captains in the premises.

Accept, &c.,

T. F. BAYARD.