File No. 367.114M69/132.

The American Consul General at Smyrna to the Secretary of State.

No. 23.]

Sir: I have the honor to enclose herewith a memorandum on the subject of jurisdiction in the case of Spiro Macris, captain of the American ship Texas, recently sunk in the harbor of Smyrna.

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The question is a serious one, involving the prestige of the Consulate, and one that will establish a precedent affecting generally the rights of foreigners in Turkey.

My colleagues the Russian and Belgian Consuls, who have steamship lines in their jurisdiction similar to the American Company, tell me that I am undoubtedly right in my views. I am not pressing my claim as I cannot enforce it without definite support.

Being on the ground here, however, I am in a position to inform the Department that though it may be unfortunate that these ships have acquired the right to carry the American flag, no middle course is now possible. Either some way must be found to take the flag off these ships or they must have full protection within the law. The fact that I have not insisted on taking over Captain Macris is already giving the impression here that American protection is a weak pillar to lean on. As I point out in my memorandum, it is hard to distinguish between ships “regularly documented” and others.

I have [etc.]

George Horton.
[Inclosure. 1.]

Memorandum as to the law concerning jurisdiction in the case of Spiro Macris, Captain of the American S. S. Texas.

On the 29th of April, 1912, the Texas, a ship of the American Archipelago Steamship Company, was sunk at the entrance of the Harbor of Smyrna, either by a shell fired from a shore battery or by a torpedo anchored in the bay.

It is certain that shells were fired from the shore battery; it is also claimed by the Turks that the harbor is mined, as a precaution against attacks by the Italians, there being now a state of war between Turkey and Italy.

The sinking of the Texas occurred about 6 o’clock in the evening, and this Consulate General immediately began an enquiry as to the causes and reasons.

The captain of the Texas was rescued from the water in a wounded and insensible condition and taken to the Creek hospital, an Ottoman institution, and put under strong police guard, the Turks claiming that he was the sole cause of the unfortunate incident.

It immediately appeared that various witnesses of the disaster were afraid to give their testimony to the Consulate; and the possession of the captain, a most important witness, by the Turkish authorities seemed likely to work detriment to the American interests involved. This Consulate General therefore notified the Vilayet that the crew of the vessel were temporarily under American protection and demanded that the captain be turned over to the American authorities. The Vilayet denied this request and replied by conducting the captain, with great show of military force, to the Ottoman hospital, where he was locked up in a room with criminals.

The Consulate General did not press its claim for the custody of the captain but has proceeded with great caution, awaiting definite instructions from the Embassy.

The action of the Turkish authorities is based upon two reasons:

They admit that a seaman takes his protection from the flag under which he serves; but they contend that, the vessel having been sunk, the reason for protection no longer exists.
They do not admit that the company in question is American.

In this second contention they come into sharp conflict with the American Government, which says that the company is American and has so notified its consular and diplomatic officers in Turkey. A copy of the Turkish Government’s answer, with translation, is herewith enclosed.

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As to the first point at issue, this Consulate General acted after careful study of the law and the facts, which it interprets as follows:

The ships of the American Steamship Company formerly belonged to a Turkish company; they were bought by Charles J. Missir, a naturalized American citizen, the transfer taking place before Mr. Harris, at that time our Consul General at Smyrna.

Charles Missir then organized the Archipelago American Steamship Company under the laws of the State of Maine, and sold out his interest to said company, taking stock in exchange. This stock he afterwards sold to Rufus W. Lane, a native-born American citizen, who now is president of the company and holds over ¾ of the shares. Thus more than 95 per cent of the entire stock is owned by American citizens.

These vessels are not vessels of the United States according to the provisions of the Revised Statutes of 1878, Section 4131 et seq.

According to Paragraph 341, however, of the Consular Regulations the right of citizens of the United States to acquire property in foreign ships is held to be a natural right, independent of statutory law; and according to Paragraph 347 of the same Regulations “the practice of carrying the flag by such vessels is now established”. Paragraph 200 of the Consular Regulations states that: “It is held that the circumstance that the vessel is American is evidence that the seamen on board are also American, and that in every regularly documented merchant vessel the crew will find their protection in the flag that covers them.” See also Paragraph 629, C. R.

The question now arises whether, in countries where extraterritoriality exists, it is possible to make a distinction between regularly documented American vessels and those which, having been bought by American citizens, have acquired the right to carry the flag.

A vessel owned by American citizens and flying the American flag becomes to all intents and purposes an American vessel, and the Government of the United States, in allowing, the use of the flag, assumes certain responsibilities to those serving under it, the non-enforcement of which may result in loss of prestige for the flag, itself. Foreign peoples cannot always distinguish between regularly documented vessels, and others not so documented.

Hinckley, in “American Consular Jurisdiction in the Orient”, says (page 87), “It is a rule, believed now to be generally accepted, that for purposes of protection a seaman, duly enrolled as a member of the crew of a merchant ship of a nationality different from his own, is to be regarded of the same nationality as the ship on which lie serves”; and the John Ross case is cited. On page 88 of Hinckley is found the following footnote: “A foreigner, the master of an American-owned, unregistered American vessel, sailing under an American flag, and whose name was borne upon the ship’s articles, was held to be under the jurisdiction of the American Consular Court at Kanagawa in 1886 for a crime committed in Japan.” This is a precedent in all respects relevant.

In the present case of the Texas the captain was seized by the Ottoman authorities and imprisoned, for the reasons above given, who will probably try him on a criminal charge, and may convict him and sentence him to severe punishment. The Ottoman authorities recognize the principle that a seaman takes his protection from the flag that covers him, but attempt to evade it by a quibble, as seen above. As has been pointed out, the people of this region do not discriminate between “regularly documented” vessels and others, and failure of the American Government to demand the captain, who is a Greek subject, for trial in the American tribunals will be set down to weakness and will result in loss of prestige.

Wharton’s “International Law Digest”, vol. 1, page 808, states: “When, however, such an offender, being a member of the crew of an American vessel, is a subject or a citizen of a country having no treaty engagements on this question with China or Japan, or where the consul of the nation to which such person may belong shall decline to assume jurisdiction over him for the offence charged against him, it is the opinion of this Department that the consular officers of the United States may properly assume jurisdiction in the case.” (Mr. Cadwalader, Acting Secretary of State, to Mr. Avery, No. 2, 1875.)

The records of this Consulate show that on several occasions the Turkish courts have sent citations to the American Consulate General for officers of the Archipelago American Steamship Company to appear before a Turkish tribunal. This Consulate has paid no attention to these citations, as the United States Government does not admit that an American citizen can be tried for a criminal offence by a Turkish court; but the fact of the citations proves that the Ottoman [Page 1315] courts acknowledge that these seamen take their protection from the American flag.

Henry Bonfils and Paul Fanchille, in the “Manuel de Droit International Public “page 400, section 601, state: “La nationalité d’un navire de commerce est fréquemment reconnue, pour 1’oeil exercé des marins, par la forme extérieure même du navire, par son gréement ou par sa voilure; mais juridiquement elle n’est établié que par le pavilion et par les papiers de bord.”

Indeed, what other means exists more inevitable for establishing the nationality of a ship than the flag which it carries? It should be observed that in cases concerning seamen on the vessels of the Archipelago American Steamship Company the Greek Consulate has invariably acknowledged the right of the American jurisdiction, and the Greeks have gone more deeply into these matters than any nation in the Near East.

In volume 6 of “The Federal Statutes”, edited by McMinney & Kemper, section 4612, we find a definition in point: “In the construction of this Title, every person having command of any vessel belonging to any citizen of the United States shall be deemed the master thereof; and every person (apprentices excepted) who shall be employed or engaged to serve in any capacity on board the same shall be deemed and taken to be a seaman.”

In view of the above facts, I respectfully request that such action be taken at Constantinople as will induce the Sublime Porte to give the necessary orders to the authorities here to deliver over the Captain of the steamship Texas to the jurisdiction of the American Consular Court in this city.

Respectfully submitted.

George Horton.

[Inclosure 2—Translation.]

The Ministry for Foreign Affairs to the American Consul General at Smyrna.

The present is in answer to the verbal note No. 476 of 2d May, 1912.1 The formalities for the recognition as American, by the Ottoman Government, of the company to which the S. S. Texas belongs, have not yet come to a conclusion. Leaving this point aside, it is exclusively possible for the crew of a vessel to enjoy the protection of the flag the vessel flies, while they are in the vessel. By the fact that the vessel sank and her captain and crew have landed, they cannot enjoy the protection in question, and as they get back to their original nationality they should be acted upon accordingly. Although, as already stated above, the American nationality of the vessels of the Hadji Daout Company has not been accepted by the Government, nevertheless the investigation which you state is being conducted by the Consulate General will not be prevented, but the result of the investigation, no matter what it may be, will not be considered as official, by the local authorities, and this investigation will not affect the disposition of the one which the Government has made.

  1. Referred to in Mr. Rockhill’s telegram of May 5.