File No. 367.114M69/132.
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.
[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:
- 1.
- 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.
- 2.
- 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.
[Page 1314]
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.
Smyrna, Turkey,
May 9, 1912.
