Papers Relating to the Foreign Relations of the United States, With the Annual Message of the President Transmitted to Congress December 7, 1903

Freiherr Speck von Sternburg to Mr. Hay.

[Translation.]

Imperial German Embassy,
Washington, August 11, 1903.

Mr. Secretary of State: With reference to note No. 721, of the 5th of February of last year, addressed to my predecessor, I have, by direction of the Imperial Government, to make the following communication:

The large number of desertions of seamen from German vessels lying in the ports of San Francisco and Portland have for years been an occasion of complaint on the part of German shipowners and of petitions to the Imperial Government for assistance toward correcting these evils. As a result the Imperial ambassador, Herr von Holleben, was at the time instructed to take up with the Government of the United States the matter of the evils worked by the practices of the shipping masters on the Pacific coast to induce seafaring men to desert. The steps thereupon taken had for effect that at the request of the Federal Government, the Attorney-General, the Secretary of the Treasury, and the governors of Oregon and California issued to the official and local authorities concerned on the Pacific coast instructions to lend their assistance to the German consular officers when the latter called upon their cooperation to effect the apprehension of deserting seamen and strictly to observe the consular convention of December 11, 1871, between Germany and the United States.

In spite of this there has been no decrease in the number of desertions in San Francisco, and a fresh difficulty has recently arisen in connection with the pursuit of deserters. It lies in an interpretation of article 14 of the consular convention at variance with its spirit and letter.

It is therein stipulated that the German consuls-general, consuls, etc., may have seamen who are guilty of or charged with desertion from German vessels arrested, and that to that end they shall address to the competent American courts or authorities a written request, accompanied by an official extract of the ship’s register and crew list or other official documents, showing that the persons to be surrendered belong to the crew of the vessel. Upon a request thus supported alone the deserters (and the word undoubtedly includes persons that are merely charged with desertion) will be surrendered to the consuls, and the warrant of arrest must issue on this document simply.

Heretofore the consul-general at San Francisco had always found it possible whenever German shipmasters called upon him for assistance to carry such cases through by referring to the provisions of the convention without special formalities or appeal to the higher authorities.

Of late, however, the court commissioner appointed by the United States court to dispose of such matters has taken the position which, in the opinion of the Imperial Government, is inconsistent with the intent of the convention, that it is his duty thoroughly to ascertain whether the seaman whose arrest is to be effected is actually to be considered as a deserter, and to that end to cause the parties to appear through attorneys, as is done in extradition cases, and prove whether the offense stated by the consul in his application for arrest has actually been committed. The court commissioner has made a statement in that sense, published in the Examiner of the 19th of September of last year, a clipping of which I inclose with a request that it be returned, and this he bases on the statute of the United States, enacted in the fifties, which I also inclose with a request that it be returned.

The court commissioner’s statement not only is in contradiction of the instructions given him by the governor of California, as above mentioned, in regard to the enforcement of the consular convention, but it also conflicts with the plain letter and the spirit of article II itself.

The tedious proceeding required by the court commissioner would on the one hand preclude that prompt assistance which the treaty contemplated, and on the other hand considerably add to the costs which are, as it is, rather heavy.

As regards the above-mentioned statute, there can hardly be any doubt that, so far at least as it conflicts with an international treaty subsequently concluded, it has become inoperative.

As the court commissioner has already tried to deal with the Imperial consul-general in accordance with his announcement, I have the honor to beg that your excellency will kindly endeavor to cause the court commissioner to recede from the position he has recently assumed and to conduct his proceedings in accordance with the convention.

With a request that you will favor me with a reply at your earliest convenience, I avail myself, etc.,

Sternburg.

[Inclosure 1.]

Clipping from the San Francisco Examiner, September 10, 1902.

no more warrants for foreign consuls—united states commissioner heacock says that hereafter he will not order arrest of sailors “by request.”

“I have decided that I will not issue any more warrants for the arrest of sailors charged with desertion at the request of foreign consuls. If any of the foreign representatives apply to me for warrants I shall request them to go before Judge De Hevan or Judge Morrow for their warrant. The issuance of a warrant must be determined by a court of record. I am thoroughly convinced that my rulings thus far have been in conformity with the law, but in future all warrants will have to be issued by a judge of a United States court.”

This statement was made by United States Commissioner Heacock yesterday afternoon after he had remanded two sailors charged with desertion to the German consul-general, and it will mark a complete change of procedure in apprehending deserters from foreign vessels while in this harbor.

The fact that the courts of this country have been used by some of the representatives of foreign countries in this port to compel sailors to be arrested and sent back in irons on board vessels in the bay without legal investigation has been productive of great scandal. These practices have been exposed by the Examiner, aided by the court officials in many cases, but the “treaty obligations” have been used frequently to railroad ignorant sailors to jail and back to worse places in the brig of a vessel. The lettre de cachet of the French consul will not avail as much under the new ruling as it has in the past. Besides, it has been common rumor on the water front that many of the masters of German vessels make a handy sum by forcing their men to “desert” while in port and then seizing the pay due them.

Wilhelm Luder and Ernest Lithke were arrested on Wednesday night, charged by German Consul Rosenthal with deserting from the steamer Hans. Both men acknowledged that they had left the steamer, but claimed that they had been maltreated on board and said they were given permission to go ashore.

Captain Reiner denied that they had been given permission to go ashore.

Under the circumstances, and in view of the fact that the men acknowledged that they had deserted, Commissioner Heacock ordered them to be turned over by the United States marshal to the custody of the German consul-general.

[Inclosure 2.]

Extract from Revised Statutes of the United States.

Sec. 5280. On application of a consul or vice-consul of any foreign government having a treaty with the United States stipulating for the restoration of seamen deserting, made in writing, stating that the person therein named has deserted from a vessel of any such government, while in any port of the United States, and on proof by the exhibition of the register of the vessel, ship’s roll, or other official document, that the person named belonged at the time of desertion to the crew of such vessel, it shall be the duty of any court, judge, commissioner of any circuit court, justice, or other magistrate having competent power, to issue warrants to cause such person to be arrested for examination. If, on examination, the facts stated are found to be true, the person arrested not being a citizen of the United States shall be delivered up to the consul or vice-consul to be sent back to the dominions of any such government, or on the request and at the expense of the consul or vice-consul, shall be detained until the consul or vice-consul finds an opportunity to send him back to the dominions of any such government. No person so arrested shall be detained more than two months after his arrest, but at the end of that time shall be set at liberty, and shall not be again molested for the same cause. If any such deserter shall be found to have committed any crime or offense his surrender may be delayed until the tribunal before which the case shall be depending or may be cognizable shall have pronounced its sentence and such sentence shall have been carried into effect.