No. 30.
Mr. Tree to Mr. Bayard.

No. 294.]

Sir: Referring to your No. 92 of the 19th ultimo, relative to the decree of the sovereign of the Independent State of the Congo of the 30th of April last, concerning the display of the flag of that State on foreign vessels, I have the honor to transmit herewith a copy of my note of the 9th instant, addressed to Mr. Yan Eetvelde, the general administrator of foreign affairs.

In making a representation and protest on the subject, I did not see how I could better do so than by following generally the reasoning and language of the instruction.

With regard to the steamer Henry Reed, as her case is covered by the principles laid down in the instruction and is within the terms of the protest, if she is an American owned vessel, I have not deemed it necessary to make any allusion to her in this connection.

I have, etc.,

Lambert Tree.
[Inclosure in No. 294.]

Mr. Lambert Tree to Mr. Edmund Van Eetvelde.

Sir: Under instructions from my Government I have the honor to invite your attention to the second article of the decree of His Majesty, the soverign of the Independent State of the Congo, on the subject of the use of flags, bearing date the 30th of April, 1887, and published in the official bulletin, No. 5 (May, 1887).

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As this article is understood it decrees that every private vessel navigating the waters of the Independent State of the Congo up the stream beyond the falls of Leo-poldville, will be required to hoist at the stern the flag of the State, and that if the vessel possesses ship’s papers establishing her nationality she may in addition fly the flag of her country.

By the second article of the general act of the Berlin conference all flags, without distinction of nationality, are secured in the right to have free access to all the waters of the Congo and its affluents, including the lakes, and to all the canals that in the future may be cut with the object of uniting the water-courses or the lakes confined in the whole extent of the territories described in article 1 of that instrument; and while 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, may be either a registered vessel of the merchant marine of the United States, or an unregistered vessel owned by citizens of the United States, without affecting, it is insisted, her enjoyment of the guarantied privilege of navigation. In either case she has the right to fly the flag of the United States.

My 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.

The principle stated, however, 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 appears to be the purport of article 2 of the royal decree of the 30th of April, 1887.

Its effect is to substitute the flag of the Congo Free State for the national flag of the vessel, by requiring the flag of the State to be displayed at the stern, as it is evident that the flags of the two nations could not both fly from the same staff, or from the same gaff. To do this would be under some circumstances, at least, to denote that the vessel was a prize to the nationality whose colors were uppermost.

I understand it to be the universal usage that the flag carried on a gaff at the flagstaff at the stern, is the flag of the vessel’s nationality.

The last clause of article 2 of the decree of April 30 implies the assertion of aright on the part of the authorities of the Congo State to determine the sufficiency of the vessel’s title to fly her national flag by making it depend on the possession Of papers establishing her nationality.

It is maintained by my Government that it is the province of each Government 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.

I am therefore instructed by my Government to protest against the application of article 2, of the royal decree of April 30, 1887, to vessels owned by citizens of the United States.

First. In requiring such vessels to fly the flag of the Independent State of the Congo at the stern. The right to require such vessels to hoist the flag of any other nationality than their own is denied.

Second. In making the right to carry a national flag on such vessels dependent upon the possession of papers on board establishing nationality.

I avail myself, etc.,

Lambert Tree ,