Count von Quadt to Mr. Hay.
Washington, November 8, 1901.
Mr. Secretary of State: By a note, No. 565, of March 1 of this year, relative to the attachment of the steamer Assyria, of Hamburg, your excellency communicated to the imperial ambassador a letter, dated February 26 of this year, from the Attorney-General, in which he declared that upon further examination of Article XII of the consular convention of December 11, 1871, concluded between the United States of America and Germany, he had formed the opinion, at variance with his earlier view, that the attachment of merchant vessels did not come within the class of judicial proceedings previous notice of which is to be given to the consular officer under Article XII of the aforesaid consular convention.
The contents of your excellency’s note have been brought to the knowledge of the Imperial Government, by which I am now instructed to make the following communication to your excellency.
The Imperial Government is unable to concur in the opinion advanced in the Attorney-General’s letter of the 26th of February of this year and repeated in your excellency’s note of March 1 last. To be sure, the attachment of vessels is not specially mentioned in the aforesaid convention at its proper place, yet, in the opinion of the Imperial Government, it is to be assimilated to the cases enumerated in Article XIII, loco citato, and in like manner requires that the consular officer be called upon.
The Imperial Government has always adhered to the opinion that the obligation of notifying the imperial consular officers concerned extends, if not to all official proceedings of American local authorities on board German merchant vessels, at least to all such as affect the interests of the vessel or its service.
This view has been upheld by the Imperial Government in several instances, and notably in connection with the conflict between police officers of Hoboken and firemen of the Norddeutschen Lloyd steamer [Page 164] Elbe in 1890, and has been conceded in Assistant Secretary William F. Wharton’s note of June 19, 1891.
Among the official proceedings of American authorities affecting the interests of the vessel or its service, an attachment is indeed to be placed in the first rank, and it has been thus expressly conceded by the Government of the United States itself in the cases of attachment of the vessels Schleswig, Rhaetia, Magdalene, and R. C. Rickmers. I venture, in this respect, to refer to the notea of Secretary of State John Sherman, of November 9, 1897, No. 395; the notesa of Secretary of State William R. Day, of June 2, 1898, No. 60, and of the 23d of August of the same year, No. 99; and the notea of Assistant Secretary of State David J. Hill, of the 19th of April of last year, No. 417.
The Imperial Government does indeed grant that an attachment must in most cases be executed without delay. But this does not come in support of the opinion advanced by the Attorney-General, because the obligation to call upon the assistance of the consuls in the proceedings under consideration has never been understood otherwise than that a notification of any official proceeding whatever was to take place before execution only when its object was not to be defeated by reason of the loss of time thereby involved, but that a notification given immediately after entering upon its execution would be deemed sufficient. Vessels of a foreign nation in Germany enjoy a similar right.
Under the circumstances, the Imperial Government thinks it may express its expectation that the United States Government will not depart from the interpretation of article 12 of the consular convention as accepted in the above-mentioned cases, and that the attachment of a vessel will, as heretofore, be counted among the official proceedings therein specified, which require a previous notification.
While respectfully asking that your excellency will take the views of the Imperial Government as herein presented into favorable consideration and favor me with a reply at your convenience, I avail myself of this opportunity to renew, etc.