Mr. Hay to Mr. von Holleben.

No. 565.]

Excellency: On the 23d ultimo I had the honor to inform you, in reply to your note of February 9, that the Attorney-General had brought the matter of the alleged violation of the consular convention of 1871, between the United States and Germany, by the United States marshal at Philadelphia, in libeling the Hamburg-American Line steamship Assyria without first having notified the German consul at that city, to the attention of the marshal and had instructed him to avoid in future any similar occurrence in contravention of the terms of the convention.

I am now in receipt of a communication from the Attorney-General, dated February 26, stating that, after further consideration of the language of Article XII of the consular convention referred to, it appears to him that the previous notice to be given to the consular officers of the respective nations relates only to an examination or [Page 163]search of merchant vessels by judicial authorities or custom-house officials, and to the taking of the depositions or statements of officers or persons belonging to the crew of a vessel of the respective nations, to be made or used in judicial proceedings. In his judgment, therefore, the service of a writ of attachment upon a vessel is not within the language or intent of said Article XII; and as immediate service of such a writ is often the very essence of the claimant’s or creditor’s right, as showing due diligence, especially where preferences are concerned, he thinks the reasons are obvious why the service of an ordinary attachment was not intended to be, and was not in fact embraced, in the proceedings which require previous notice under Article XII of the treaty aforesaid.

Accept, etc.,

John Hay.