No. 1128.
To the consular officers of the United States at sea-ports.


Gentlemen: An important question has recently arisen in regard to the precise meaning of the term “American seamen,” or “seamen of the United States,” as used in our statutes. The question arose in considering the right of one Caspar Klypool, an alien, shipped as a seaman on an American vessel in the United States for a voyage terminating in a foreign country, and who had been injured on the voyage, to receive relief in such foreign port on the termination of the voyage, and to be returned to the United States.

For your instruction and guidance a part of the correspondence on this subject between this Department and the Treasury Department is hereto appended.

The conclusions reached by this Department, and concurred in by the Treasury Department (as more fully appears in the appended letters), are as follows:

A seaman of foreign nationality who ships in an American vessel in a port of the United States, with intent to attach himself for an indefinite though not necessarily a long time to the American merchant service, becomes thereby a seaman of the United States within the meaning of the statute and regulations authorizing the relief and transportation, at Government expense, of destitute seamen to the United States; and he retains that character, with its privileges, until divested of it by taking service in a foreign vessel, or by abandonment of the seaman’s calling.
The act of August 3, 1882, for the exclusion of pauper immigrants, has no application to this class of persons, when transported hither at the expense of this Government; and such a seaman, so returned, can not be lawfully refused admittance by the port authorities, on the ground [Page 1656] that he is a foreigner without the means or ability to take care of himself, and is likely to become a public charge.

Your attention is called to that part of the appended letter of the Secretary of the Treasury which suggests that it would be advisable for returned seamen to bear a certificate from the forwarding consular officer to be exhibited to the examining officers of the home port.

I am, gentlemen, your obedient servant,

G. L. Rives,
Assistant Secretary.
[Inclosure 1.]

Mr. Bayard to Mr. Fairchild.

Sir: I have the honor to acknowledge the receipt of your letter of the 16th of December, 1887, in which you state the reasons why Caspar Klypool, a foreigner who had shipped on an American vessel in the port of San Francisco “for the run” to Liverpool, and been relieved and given passage to the United States as a destitute American seaman, by our consul at the latter port, was refused admittance in the port of New York, and sent back to Liverpool.

A copy of your letter was sent to the consul at Liverpool, and has elicited from him an inquiry as to his duty hereafter when seamen of foreign nationality come upon the consulate in a destitute condition from American vessels on which they have shipped in an American port for a voyage or period that ends at Liverpool.

In view of the fact that this is a question of great practical importance, upon which perfect harmony of opinion and action should exist in the two Departments, I have the honor to request an interchange of views upon it.

As an expression of the conclusion reached by this Department after some consideration, I beg to submit the proposition that a seaman of foreign nationality who ships on an American vessel in a port of the United States, with an intent to attach himself to the American merchant service for an indefinite, though not necessarily long period, becomes a seaman of the United States, within the meaning of section 4577 of the Revised Statutes, and retains that character with its privileges, until divested of it by taking service on a foreign vessel, or by abandonment of his calling.

In the leading case of Matthews vs. Offley, 3 Sumn., 115, Judge Story says, “that where a foreign seaman has once acquired a domicile in the United States, and is engaged in our merchant service, and retains * * * the habits of that service, and upon every discharge from one ship still has the animus revertendi to that service and domicile, he must be treated as intending to retain his acquired character of an American seaman and his acquired American domicile.

“Some overt act on his own part, such as engaging in some foreign service, or resuming his original native character, or disowning his American character and domicile, seems to me indispensable to rebut the presumption that he still attaches himself to the American service.”

A sailor is a citizen of the world, and can acquire in his vagrant career only that sort of domicile which the nationality of the ship which is his place of abode gives him.

More than half of our merchant seamen, this Department is informed, are foreigners, and during the last half century they have been deemed, when shipping in our ports and upon our vessels, as “mariners and seamen of the United States,” and entitled as such to the protection of our laws.

So generally are they regarded in the character they have assumed that almost invariably they are entered on the crew lists as of the United States.

The Consular Regulations of 1855 (par. 122), following a decision of Judge Minot, Fifth Auditor of the Treasury during that year, state “that * * * all foreigners regularly shipped in American vessels at any port in the United States are to be regarded as American seamen and citizens, within the provisions” of the statutes relative to discharge, relief, and transportation to the United States. The successive editions of the Consular Regulations from that time to the present, including the edition now in press, have contained substantially the same provisions (see paragraph 199 of the edition of 1881). During that entire period our consular officers have acted in conformity with these instructions, discharging such seamen as were entitled to discharge, relieving the necessities of those found destitute, and furnishing passages [Page 1657] to the United States to such as were unable, from any cause, to reship, and were desirous of returning to the United States for that purpose.

The fact of shipment in a port of the United States has been deemed presumptive evidence of attachment to the American service, and the application for transportation to the United States, in case of inability to reship on an American vessel in the port of discharge, has been accepted as sufficient proof of intent to continue in the American service to entitle the foreigner to the benefit of our laws.

There may be individual cases where it is apparent to the consul that the seaman is in the habit, when out of employment, of shipping in any vessel the master of which will engage him, wholly indifferent as to the place or country to which she belongs, or as to the part of the world in which he may find himself when the contract is at an end; but such cases are exceptional, and do not affect the general rule, only suspending its application in the particular instances.

It is universally conceded that a citizen seaman, when unable by reason of sickness, hurt, or injury, to reship after his discharge in a foreign port, retains his character and rights as an American seaman until he is cured, or from lapse of time or other circumstances, his abandonment of that character is presumed.

It is the opinion of this Department, adopting the language of the forthcoming edition of the Consular Regulations, that “A foreign seaman, having shipped on an American vessel at a port of the United States, is entitled to extra wages on his discharge in a foreign port, in all cases where a seaman who is a citizen would be so entitled, and on such discharge he may be relieved and returned to the United States.”

* * * * * * *

In reference to the act of August 3, 1882, for the exclusion of criminal and pauper immigrants, I beg, in closing, to say that this statute has been heretofore understood in this Department to be confined in its application to immigrants, persons who have come to stay, not to seafaring men, who come only to reship and go to sea again; not even when the seaman is temporarily unable to reship. This view derives some support, by analogy, from the opinion of the Attorney-General, rendered to your Department December 26, 1886, that Chinese servants who come to this country on a visit with their employers are not within the provisions of the Chinese immigration act, because they do not come to stay, and can not be considered immigrants.

I have the honor to be, sir, your obedient servant,

T. F. Bayard.
[Inclosure 2.]

Mr. Fairchild to Mr. Bayard.

Sir: I have the honor to acknowledge the receipt of your letter of the 11th instant, referring to the late case of Caspar Klypool, and requesting an interchange of views upon the question relating to seamen of “foreign nationality who ship on American vessels in ports of the United States, and who may be returned to our ports under the provisions of section 4577, Revised Statutes.

This Department recognizes the correctness of the general proposition which you maintain respecting the standing of seamen of foreign nationality who have been employed on American ships, and concurs in the opinion that such seamen, when regularly returned to the United States under section 4577, Revised Statutes, should be exempt from the operation of the immigrant law.

In view of the examination and report required to be made by the commissioners charged with the administration of the local affairs of immigration at their respective ports under the provisions of section 2 of the immigrant act, it is suggested whether it would not be advisable for the returned seamen to bear a certificate from the consul or eommercial agent to be exhibited to the examining officers.

Respectfully, yours,

C. S. Fairchild,