No. 33.
Mr. Tree to Mr. Bayard.

No. 305.]

Sir: Referring to my number 294 in which I inclosed a copy of my note of the 9th ultimo addressed to Mr. van Eetvelde, relative to the decree of the 30th of April last, requiring foreign vessels on the Congo River to hoist the flag of the Congo State, I have now the honor to transmit herewith the answer of Mr. van Eetvelde to my note and my rejoinder thereto.

It will be observed that Mr. van Eetvelde discusses the question as if the Congo was territorial water, under the exclusive jurisdiction of the State, instead of being as free to the commerce of the world as the sea, subject only to police regulations with reference to public order and public health.

I have, etc.,

Lambert Tree.
[Page 37]
[Inclosure 1 in No. 305.—Translation.]

Mr. van Eetvelde to Mr. Tree.

Mr. Minister: The communication that you have done me the honor to address me the 9th of this month concerns a decree made the 30th of April last, by the terms of which every vessel navigating in the Superior Congo is required to hoist the flag of the State, with the privilege, if she possesses ships’ papers establishing her foreign nationality, to hoist in addition the flag of her country.

The Government of the United States sees in this measure a double infringement of the law of nations, no vessel, according to it, being obliged to carry any other flag than its own, and not being obliged to justify its nationality by ships’ papers.

You kindly recall on this occasion that the general act of the Berlin conference opens to vessels of every nationality free acess to the Congo and its affluents. It is true, Mr. Minister, that by admitting all nations to subscribe to the general act the conference has intended to exclude no one from the advantages that it consecrates, and it enters into the desires of my Government to see the citizens of the United States profit by them in the greatest measure.

I do not think, however, that the decree of the 30th of April last can in any way trammel the free exercise of navigation in the waters of the Congo. It has been inspired, on the contrary, by quite different purposes; in stipulating that all vessels, without distinction, should in these latitudes little frequented display a flag recognized and respected by the natives, it is designed, in effect, as much to guard these vessels against any act of hostility as to strengthen toward the people still savage the prestige of a power which is one of the principal guardians of the work of the conference and which will be all the more able to protect the operations of commerce, that its authority is strong and uncontested. In this double manner the decree serves the interest of the liberty of navigation.

In taking this measure the Government of the Congo does not believe that it has overpassed the rights of police which belong to it in its territorial waters. It is a principle of international law, universally recognized to-day and consecrated by numerous precedents, that a foreign vessel, in all that touches public interest and public order, is submitted to the laws of the state where it is found, only interior matters and discipline on board escaping the jurisdiction of local justice. But I have shown that the decree is inspired by the most evident necessities, and protects the security even of navigation. Under these conditions, does it not justify itself so much the more that it neither makes any attempt against private interests nor the dignity of foreign navigators, since it happens every day that vessels of commerce and others hoist by simple courtesy another flag than theirs? My Government esteems that there can be no inconvenience in floating the colors of the two countries, the one at the side of the other; if, however, contrary to our thought, this exterior disposition of flags could be of a nature to awaken susceptibilities, the adoption of any modifications would not be refused which, in giving on this point satisfaction to your Government, would be to our mind compatible with the object of the measure.

The second objection that you have kindly addressed to me concerns the obligation which is imposed implicitly by the decree on foreign vessels to prove their nationality by ships’ papers. I do not think, Mr. Minister, that this obligation is contrary in any respect to international usages. Without doubt it belongs to each country to fix the limits which suit it for conferring its nationality on vessels, but everywhere where the sovereignty of another power is exercised, and where in consequence the obligatory force of foreign laws ceases, this privilege is limited by that of the law of nations which accords to this power to determine on its side the conditions on which it recognizes the nationality of these vessels in its territorial waters. It is not only the theoretical rule which permits the State of the Congo to act as it has done; the general practice sanctions the principle that requires every vessel to justify its nationality by regular documents. This is so true that no vessel would be advised to go to sea without being furnished with them, as if she were unprovided with them she would be exposed in time of war to be declared fair prize, and as on her arrival in a foreign port she is required to present them for visé to the authority. The American law itself exacts that the papers should be deposited with the consul. The interest of nations and the care of their own neutrality command, besides, that a vessel without official attestation can avail itself of the protection of no flag.

I hope, Mr. Minister, that on this question a simple misunderstanding separates us, I and that at bottom the manner in which your Government sees it does not differ from that which J have just exposed. I read, in fact, in an official publication issuing from [Page 38] the, department of foreign affairs* at Washington, that, according to the laws of Congress, the right to carry the American flag can only belong in practice to vessels registered at a custom-house. That is to say that by the fact itself of registry ships’ papers are obtained. The work which I have just cited adds that foreign tribunals would not be required to recognize certificates of American property delivered by the consul to vessels of foreign construction.

Permit me to recall also that international acts to which the Government of the United States is a party consecrate the obligation for a vessel to justify her nationality by ships’ papers. In the presence of these dispositions which animate our two Governments I can not prevent myself from regretting, Mr. Minister, that the terms of the decree of the 30th of April last have been able to give birth to a doubt as to their real meaning.

My Government does not seek, in fact, to interfere in the delivery of these papers nor to dictate the conditions upon which such delivery should be subordinated; it is too penetrated with respect for the rights of the powers and too convinced that they would respect its own to raise this pretention. All that is desired is to prevent the abusive use of foreign flags, and on this point an accordance of views appear to exist between us; it is that vessels establish by a regular document that they are the property of foreign citizens and authorized as such to hoist the colors of their country.

I desire to add, Mr. Minister, that on this question, as on all others that could arise between the two countries, my Government will always be happy to accord to the one that you represent all the satisfaction reconcilable with the interest which it protects.

It has it at heart to recognize by its friendly action the fruitful support that the Government of the United States lent to it at the time of its foundation, and it will know how, being inspired with a duty of gratitude, to testify its solicitude to the enterprises in which the citizens of the’ United States will take the initiative in its territories. It likes to believe, on its side, that the Government of the United States will not cease to encourage it with its sympathies and that on the present occasion it would kindly re-enforce, by its moral support, the authority of which the young state has need in order to assure the success of its civilizing and philanthropic work.

Please accept, Mr. Minister, the assurances, etc.,

The administrator general of the department of foreign affairs.

Edm. van Eetvelde.
[Inclosure 2 in No. 305.]

Mr. Tree to Mr. van Eetvelde.

Sir: I have the honor to acknowledge the reception of your esteemed note of the 28th ultimo, which I have read with interest.

You therein confirm what I supposed would be the case, that your Government and mine are in entire accord on the point that the general act of the Berlin Conference opens to the flag of all nationalities, without distinction, free access to the navigation of the Congo and its affluents, whether parties to the convention or not.

We equally agree on the general principle that the enforcement by the state through which a free river flows of police regulations, with a view to the preservation of public order and the protection of public health within its territories, is not inconsistent with the enjoyment of the free use of the river for the purposes of navigation, trade, and commerce. I am not able to see, however, that the demand on the part of such state that foreign vessels traversing free waters shall display the flag of the state, or that the authorities of the state may properly exercise the right of deciding upon the sufficiency of the papers on board establishing the vessel’s nationality as a prerequisite to her flying another flag than that of the riparian state, is in any sense a police regulation. If this demand is founded on law, the principle in this instance must be sought for elsewhere than in the right to make and enforce police regulations.

Nor am I prepared to admit, while fully recognizing the benevolent and kindly motives which actuate the authorities of the state, that the freedom of navigation of the waters of the Congo is assured, when the undisturbed enjoyment of this right can be obtained for foreign vessels only on the condition of flying the flag recognized or respected by the people of the riparian state. It is possible that such vessels might [Page 39] be move free from danger; but if they are obliged, for any reason, to conceal their own flag or hoist the colors of the riparian state as a condition to the navigation of these waters, dedicated to the free commerce of the world, it is evident that the navigation would not be free in point of fact, no matter whether all nations, without distinction, were subjected to the same terms.

It is quite true that it happens every day that foreign vessels hoist at the foremast, as a matter of courtesy, the flag of the nation whose ports they are entering or departing from, but I believe it will scarcely be seriously contended that the extension of a courtesy, for however long a period it may have been practiced, constitutes a sufficient basis for the assertion Of an absolute right.

So far as the question of law is concerned, it being conceded that the Congo River and its affluents are free waters, and open to the commerce of the world without distinction of flag, it seems to me it must inevitably follow that wherever a vessel may go, she may carry the flag of the nationality of which her owners are citizens, and that she is not bound to carry any other flag”. Indeed, as a general rule, the display of the flags of two different nations on the same vessel renders her liable to suspicion, and even puts in doubt her nationality. This principle is not in conflict with municipal laws requiring the display of quarantine flags, pilot ensigns, etc., which do not claim to be flags of nationality.

I regret that I am not able to concur with you on the question raised as to the right of your Government to determine upon the sufficiency of the papers on board of a vessel to establish its nationality.

There could be no better illustration of the danger of the exercise of such power by the authorities of one state over the vessels of another than that which is furnished in your own communication, to which I am now having the honor to respond.

You have therein kindly called my attention to section 226 of the Consular Regulations of the United States of 1874, as evidence that only vessels registered at a custom-house may carry the American flag.

It is quite natural for foreigners to fall into error in construing the meaning and effect of the local regulations of another country because they can not be expected to be familiar with the history of such regulations, the circumstances which precede their adoption, or the purposes to be subserved in controlling or directing the agents of the Government.

Without entering into any explanation at length of the section of the Consular Regulations to which you have referred, I present to you at once the best evidence possible that you have misapprehended the section you have quoted, intended, as it was chiefly, to put a stop to the practice which had grown up with our consuls of issuing certificates of ownership to vessels—a practice clearly unauthorized by law.

That you have misapprehended its scope, you will readily see from the terms of sections 338 and 339, to be found in the Consular Regulations of the United States of 1881, at page 54.

The sections referred to read as follows:

  • Sec. 338. The right of American citizens to acquire property in foreign ships has been held to be a natural right independent of statutory law, and such property is no more nor less entitled to protection by the United States than any other property of an American citizen.
  • Sec. 339. The existing general regulations of the Treasury Department, under customs and navigations laws (Customs Regulations of 1874), recognize the right of property in vessels of this character, and declare them to be entitled to the protection of the authorities and to the flag of the United States, although no register, enrollment, license, or other marine document prescribed by the laws of the United States can lawfully be issued to such vessels, whether they are American or foreign built.

“The former practice of issuing sea-letters in the case of the purchase abroad of American or foreign vessels by citizens of the United States is no longer authorized and will not be permitted.”

I have already explained, in my communication of the 9th ultimo, that American vessels may be either registered or unregistered.

A registered vessel is one which is built in the United States and wholly owned by citizens thereof.

An unregistered vessel is one not built in the United States, but wholly owned by citizens thereof.

While registered vessels, with the view of encouraging ship-building, are entitled to certain privileges and exemptions not extended to unregistered vessels, both are I nevertheless entitled to carry the American flag, and to claim the protection of the Government.

The registration of vessels is a matter of local or municipal regulation, differing in different countries. I am not aware of any rule of international law which requires a ship to have a register, or any other document expressive of her national character. She may plow through the sea and other free waters of the world without the possession of any such papers, and can not be lawfully disturbed, so long as she is engaged [Page 40] in peaceful pursuits and molests no one. The flag which she carries is the symbol of her nationality, and it is prima facie evidence to the world of the national character of her owners, just as a register, sea-letter, or other document is. True ownership of a vessel is a matter in pais, to be proved like any other fact. It may be shown by a bill of sale, the ordinary instrument used for the purpose of transferring property in a ship, or, in the absence of a bill of sale, it may be shown by parol testimony.

On the other hand, as the national flag is prima facie evidence in free waters that the nationality of the ships carrying it corresponds to that of the flag, so, under well established principles of law, if a vessel is navigating under the flag of a foreign country she is to be considered as bearing the national character of the country under whose flag she sails. She marks a part of its navigation, and is in every respect liable to be considered as a vessel of the country.

Thus it is apparent under the rules of law that,. if the decree of the 30th of April requiring vessels to hoist the flag of the Congo State is enforced, it invests the authorities of the state with the power of making a prima facie transfer of foreign vessels, without the consent of the owners, to the marine of the Congo State. I am not able to find any warrant in the law for the exercise of such a power by the state.

While my Government watches with the deepest interest and sympathy the progress which is being steadily made by the royal and illustrious founder of the independent State of the Congo, in giving to that land the blessings of civilized government, and fully appreciates that the Government which he guides has the loftiest purposes in view, and fosters no aims which are not conceived with the intention of advancing the highest ends of good government, it yet esteems it a duty that it should not, by its silence, seem to assent to a proposal to inflict a fine on an American vessel which fails to hoist a foreign flag on waters which, without distinction, are free to the flags of the world.

I avail myself, etc.,

Lambert Tree.
  1. Regulations prescribed for the use of the consular service of the United States, article 226, Washington, 1874.