File No 14776/3.
Ambassador Leishman to the Secretary of State.
Constantinople, October 6, 1908.
Sir: In reply to the department’s telegraphic instructions of July 30 last, inquiring concerning the right of an American citizen to sue the Turkish Government for the recovery of excessive customs duties, I have the honor to report that I have caused inquiries to be made at the Sublime Porte and from the legal advisers of the Porte and of the customs administration and am informed that an American citizen, as well as an Ottoman subject or other foreign subject, may sue the Ottoman Government in the Ottoman courts to recover excessive customs duties The form of procedure and admittance of evidence, as well as the law applied, will naturally be those fixed by Ottoman law.
With regard to the nature of the cases in which an American citizen can sue the Ottoman Government in the Ottoman courts, I beg to state that the law does not limit such cases It can be said in a [Page 738] general way that in all matters wherein a foreign subject enters into relations with the Ottoman Government he can sue the same in the Ottoman courts Such action, when brought by a foreign subject or citizen enjoying capitulatory rights in Turkey, comes within the jurisdiction of the “mixed courts,” which is presided over by an Ottoman judge, and comprises, besides the president, two Ottoman associate judges, called members of the court, and two foreign assessors, appointed by the diplomatic or consular authorities of the nation to which the foreigner belongs Such action is not heard unless the dragoman of such foreign mission or consulate be present.
As to the question whether the remedy accorded is as practicable, efficient, and absolute as that furnished by the American Court of Claims, I beg to state that an action in an Ottoman court, and an irrevocable judgment sanctioning the claims of the foreigner, are the only remedies which a foreigner has in Turkey It is true that under the old régime foreigners who obtained judgments against the Ottoman Government experienced delays in the execution of these judgments, but this does not change the point of law, which recognizes the jurisdiction of the Ottoman courts against the customs administration in claims for the recovery of excessive customs duties.
The delay in writing this reply to the department’s inquiry was caused by the wish of the embassy to ascertain, from the office of the legal advisers of the general customs administration, whether there have ever been cases of this nature against the department All their old records were searched, but no such case was found; yet they recognize that there is no doubt whatever about the jurisdiction of the courts, and that they would not for a moment think of raising an exception of want of competency, in case such action were brought against their administration Their present legal adviser states that, whenever such claims have been presented during his tenure of office, he has caused them to be settled out of court.
I have, etc.,