No. 27.
Mr. Bayard
to Mr. Tree.
Washington, December 19, 1887.
Sir: Your No. 278, of the 30th ultimo, asking for instructions relative to the flag to be hoisted by American-owned vessels in the Congo Free State, makes it proper to supplement my instructions No. 90, of the 7th instant, in regard to procuring a flag license for a small steam-boat, the Henry Reed, employed in mission work on the Congo River above Stanley Pool.
By the Congo convention, signed at Berlin, the Congo River and its tributaries are opened to the trade and navigation of citizens of all countries and their vessels. Although the Government of the United States is not a party to that convention, yet the peaceful use of the benefits offered by the Congo Free State to the world at large are shared by their vessels and their citizens.
The commerce of the Congo Free State being thus freely opened, the American vessel, viewed as a vehicle of transit, maybe either a registered [Page 28] vessel of the merchant marine of the United States or an unregistered vessel owned by citizens of the United States, without affecting her enjoyment of the guarantied privilege of navigation. In either case she has the right to fly the flag of the United States.
This Government holds it to be a settled principle of international law that ships not only are entitled to carry wherever they go the flag of the country of which their owners are citizens, but that it is their duty, as a rule, to carry such flag alone, inasmuch as the very fact of a vessel’s having on board and displaying a plurality of flags renders her liable to suspicion. With this principle municipal laws requiring in certain cases quarantine or pilot ensigns to be carried do not conflict, because such ensigns do not claim to be flags of nationality. But the principle would be directly antagonized by a rule that vessels navigating the rivers of a particular State, when such rivers are open, as in this case, to foreign navigation, should carry the flag of that State. This is the purport of article 2 of the Congo decree of April 30, 1887, which you quote. Its effect is to substitute the flag of the Congo Free State for the national flag of the vessel by requiring its display on the staff at the stern, which in steamships is generally the placed the vessel’s national emblem, although it is also shown at the peak. And this effect is not altered by the further provision of the same article 2, which permits the vessel to fly also the flag of the country to which she belongs.
This proviso is open to two serious objections. It subordinates the national flag to the temporarily displayed Congo flag. And it implies assertion of right on the part of the Congo authorities to determine the sufficiency of the vessel’s title to fly her national flag by making it depend on the possession of papers establishing nationality. It is the province of each country to determine for itself the conditions for the use of its flag upon its vessels, and the United States’ rule is that vessels bona fide owned by citizens of the United States are entitled, when abroad, to carry the flag of the United States irrespective of the question of the papers they may have on board.
With regard to the general question, as presented in your No. 278, you will make to the minister for foreign affairs of the Congo Free State a protest against the application of article 2 of the decree of April 30, 1887, to vessels owned by citizens of the United States, and will further protest against the application to such vessels of the last clause of that article which makes the right to carry a national flag dependent upon the possession of papers on board establishing nationality.
I am, etc,