File No. 367.114M69/166.
The American Ambassador to the Secretary of State.
Constantinople , September, 6, 1912 .
Sir: Referring to my despatch No. 247 of July 18, 1912, with regard to the trial of Spiro Macris, Captain of the S. S. Texas of the Archipelago American Steamship Company at the time of her sinking in Smyrna harbor on April 29th last, I have the honor to report that I had an interview with his excellency Noradunghian Effendi on August 26 last, in the course of which this matter was again discussed.
In reply to my presentation of the arguments which this Embassy had previously put forward under the Department’s instructions, the Ottoman Minister for Foreign Affairs repeated the arguments already advanced by his Government to support its claim of jurisdiction, to the effect that the charge against the captain of the Texas is one against the person of Spiro Macris, not against the Archipelago American Steamship Company, the crime for which the accused is held, that of disobeying the port regulations of Smyrna in time of war, was committed by an Hellenic subject in Ottoman territorial waters and resulted in the loss of life of Ottoman subjects; and he pointed out that at the institution of the trial jurisdiction in the premises was recognized by the Hellenic Government, which could not have done otherwise, as vested in the Ottoman courts. With reference to the last point, I beg leave to enclose herewith copies of [Page 1331] recent correspondence with our Consul General at Smyrna,1 from which it appears that the trial of Macris is being conducted by the Ottoman court in the presence of the dragoman of the Hellenic Consulate.
His excellency then proceeded to make an assertion that includes points which have not hitherto been made in support of his Government’s contention in this case. He said that if his Government should admit the view of the American Government this Hellenic subject should be tried by the American Consular Court as an American citizen, because the Texas was an American vessel, the property of an American corporation and flying the American flag, and because this Hellenic subject is held for a crime alleged to have been committed by him while aboard this American vessel and in his capacity as master of the same; should his Government admit this, it would be forced to the consequent admission that an Ottoman subject who might happen to be the captain of one of the ships of the American company would, under similar circumstances, be subject to the jurisdiction of the American Consular Court. He added that such a thing would be manifestly impossible, contrary to all principles of penal procedure and jurisdiction as applied in Turkey, and which the American Government would not think of claiming.
The Minister said that, moreover, a trial of an Ottoman subject in an American Consular Court under an analogous state of facts would be contrary to the provisions of the “Regulation in regard to Foreign Consulates of 1863.” This regulation was accepted by all the diplomatic missions accredited here and lays down the general rule that no Ottoman subject can be withdrawn from Ottoman jurisdiction by a “trust, employment or service which he may hold from a foreign subject.”
In tracing the origin of this regulation it appears that in the 18th and the beginning of the 19th centuries a system of protection of Ottoman subjects by foreign consulates grew up in Turkey which seems to have been abusive. A large number of Ottoman subjects, not in the foreign diplomatic or consular service, was being “protected” by some foreign consulate. The effect of such “protection” was that in all civil or criminal actions these persons were treated as foreign subjects. The system of “protection” was even extended to the members of the “protégé’s” family and could be transmitted by inheritance to his descendants. The Porte objected to this system and when towards 1860 it realized that at certain seaports the foreign “protégés” were more numerous than Ottoman subjects themselves, it decided to use every proper means at its disposal to put an end to this anomalous state of affairs. In September, 1860, the Porte informed the diplomatic missions that any Ottoman subject who should obtain foreign “protection” must leave the Empire within three months after securing such “protection.” If he refused to leave, he would be treated in every way as an Ottoman subject. The attitude of the Porte was regarded as justifiable and in 1863 the diplomatic missions agreed to the above-mentioned regulation, so that the Porte has ever since considered it as in the nature of an international act.
[Page 1332]The principal provisions of the regulation are that foreign consular “protection” extended to Ottoman subjects is limited only to dragomans and cavasses in actual service, called privileged “temporary protégés”; that the number of such “protégés” is fixed according to the rank of the consular office they serve; that so long as they are in such service they are treated in all their affairs, official and private, as permanent protégés, i. e., as subjects of the country which they serve; that this withdrawal from their natural jurisdiction is a temporary and exceptional condition which lasts only so long as they are in the actual service of the foreign consulate. As to other Ottoman subjects who are employed by other foreigners, this regulation clearly provides that “no Ottoman subject can be withdrawn from Ottoman jurisdiction by the trust, employment or service that he may hold from a foreign subject, only the foreign interests that may be found in his hands shall enjoy foreign protection. * * *.” “Beyond the foreign interests with which they may be entrusted Ottoman subjects (other than temporary protégés) shall not cease for a single instant to retain their character of Ottoman subjects and to be under Ottoman jurisdiction in their private affairs and in their persons.”
The last is the provision to which the Minister for Foreign Affairs attaches great importance, because, he says, as stated above, should American jurisdiction be admitted in the case of this Hellenic subject, the same jurisdiction must be admitted in the case of an Ottoman subject who might serve in a similar capacity.
After hearing the argument of the Minister, I reiterated our view of the question at issue and in reply to his request that we should admit the jurisdiction of the Otoman courts, I stated that I could not do so.
In connection with this matter, there is another important consideration which I deem it proper to submit. From the remarks of some Ottoman officials, it would appear that certain of the heirs of Ottoman subjects who lost their lives in the Texas disaster, or other Ottoman subjects who claim to have sustained losses on account of the disaster, may bring against the Archipelago American Steamship Company civil actions to recover damages; such actions, if ever brought, would be brought in the Mixed Court at Smyrna. Before taking any steps, however, these persons would naturally wait to see the result of the criminal prosecution against the captain of the Texas. Should he be acquitted, they may give up the idea of bringing actions against the company. Should he, on the other hand, be found guilty, then probably they will act against the company.
The Ottoman officials may think, therefore, that in order to shield the American Company against the future civil suits, the American Consular Court would be more lenient towards the accused than the Ottoman courts; but, following the same line of argument, the American Consulate General at Smyrna or the American Company might think that the Ottoman Court would be unduly severe against the captain, in order to pave the way for the same civil actions of Ottoman subjects.
Had the Porte admitted the view of the Department and had the man been tried by the Consular Court and found guilty, then such Ottoman subjects would at once apply to the Mixed Court and claim [Page 1333] damages from the company. But if, on the contrary, in spite of this Embassy’s representations, the Porte allows the trial of Macris to go on in the Ottoman courts and they find him guilty, and then civil actions are instituted against the company, the Consulate General at Smyrna would be in a position to dispute the legality of the sentence against Macris which Ottoman subjects might use as a basis for the civil action.
I have [etc.]
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