176.1/8
The Secretary of State to the British Ambassador (Geddes)
Excellency: I have the honor to refer to Your Excellency’s note No. 634 of September 27, 1920, and to subsequent communications concerning the action of the American consular authorities at Alexandria, Egypt, in the case of Alexander MacClennan, a British subject, recently serving on board the American Steamship Berwyn. I regret that the necessity of procuring and studying a report from the American Consul at Alexandria has made impossible an earlier reply to your representations.
From the Consul’s report it appears that, after the abandonment of the Berwyn in the Arabian Sea, MacClennan and the rest of the crew were brought to Alexandria and food and lodging were then given to them by the Consul. It further appears that MacClennan, with several other members of the Bertoyn’s crew, accepted the Consul’s offer of transportation to the United States on board another American vessel, the Dakotan, with the intention of reshipping at New York for a port in the United Kingdom. Shortly before the Dakotan was to sail, MacClennan came on board the vessel in an intoxicated condition, and was informed, in answer to a question, that he would be required to assist in the navigation of the vessel. He immediately expressed vehement objection to the requirement; threatened the American Vice Consul, who was present, with bodily injury; and, urging the other members of his party to resist the directions of the Vice Consul, joined them in surrounding that official and used violent and abusive language and threats of personal violence. He was thereupon placed under arrest, at the instance of the Vice Consul, and was later tried and convicted in the American Consular Court, on a charge of being drunk and disorderly and inciting to disturbance, for which he was sentenced to two weeks’ imprisonment.
The Department has not been unmindful of the importance of the principle involved in this case and it has given careful consideration to the observations contained in your note of September 27, 1920. Without stating in detail the considerations which have had weight with the Department, I may observe that it appears to the Department that MacClennan in signing the articles of the Berwyn not only became a member of the crew of that vessel but also assumed the status of an American seaman, and as such became entitled to the protection and subject to the jurisdiction of the United States. The loss of the Berwyn did not terminate the responsibility of the United States for his safety and welfare but, on the contrary, brought into operation the provision of law requiring American Consuls to give to shipwrecked [Page 79] seamen of the United States sufficient subsistence and passage to a port in this country. It also made applicable to MacClennan the statutory provision that a destitute seaman transported to the United States shall, if able, be bound to do duty, according to his ability, on board the transporting vessel. It is believed that MacClennan’s acceptance of the relief and transportation offered him in accordance with the statutory provisions above mentioned has an important bearing on the questions of the propriety of the requirement that he assist in the navigation of the Dakotan and of his amenability to American jurisdiction at the time of his arrest.
With respect to the requirement of the performance of duty it is to be observed that this requirement is, by statute, one of the conditions on which transportation to the United States is offered to shipwrecked seamen of American vessels. It can hardly be questioned that the United States is at liberty to fix by statute the Conditions to which the offer of transportation shall be subject. Indeed, it is understood that the British law on this subject is even broader than that of the United States; since by the British Merchant Shipping Act it is apparently provided that the offer of transportation of shipwrecked seamen of British vessels shall be subject to such conditions as may be fixed by the Board of Trade and that a seaman transported in pursuance of the Act shall, so long as he remains on the ship, be deemed to belong to the ship and be subject to the same laws and regulations for preserving discipline as if he were a member of, and had signed the agreement with, the crew. MacClennan was not obliged to accept the American Consul’s offer of transportation on the Dakotan, and he would doubtless have been permitted, at any time prior to the sailing of the vessel, to withdraw his acceptance; but, having accepted the offer and having given no indication of an intention to withdraw his acceptance, he could not reasonably expect to avoid the legal consequences of the contract to which he had become a party. His case seems to fall clearly within the decision of the United States Circuit Court for the District of Pennsylvania (U. S. v. Sharp, 27 Fed. Cas. 1041), in which the following language was used:
“The men received on board at Bordeaux by the master, upon the application of the American consul, were as much seamen of the vessel and belonging to her, as those who had signed the shipping articles. By the 4th section of the Act of Congress of the 28th of February, 1803, the American consuls and vice consuls at foreign ports are required to provide passages for all destitute American seamen, within their districts, to some port of the United States; and to pay for the passage of each seaman a sum not exceeding ten dollars. The master of every American vessel is bound, upon the requisition of the consul, to receive such seamen, not exceeding two in number for every [one hundred] ton[s] of his vessel;35 and to [Page 80] transport them to the United States, under a penalty; and on the part of such seamen, they are bound to do duty on board such vessel, according to their abilities. Here then is a contract created by the law, which, in consideration of support and transportation by the master, obliges the seamen to perform all the duties of one and creates all the relative obligations and duties of master and servant, which exist in cases of articled seamen.”
With respect to the question of MacClennan’s amenability to the jurisdiction of the American Consul at the time of his arrest on board the Dakotan, it is submitted that the action of this British subject in accepting the American Consul’s offers of relief and transportation to the United States was evidence of an intention to continue, for the time being at least, the status of an American seaman which he had assumed upon his enrollment in the crew of the Berwyn and which had not been formally dissolved. The continuance of the status resulting from his connection with the Berwyn was further confirmed by his practical assimilation to the position of a member of the crew of the Dakotan, under the terms of the contract created by law by his acceptance of transportation on the latter vessel. The term “crew”, I may state in this relation, has been defined by American Courts as including not only seamen duly shipped and enrolled on board a vessel but also all persons “who are on board her aiding in her navigation, without reference to the arrangement under which they are on board” (The Bound Brook, 146 Fed. 160) and without regard to the question “whether the contract is verbal or in writing or for a long or short voyage or period” (The Marie, D. C, 49 Fed. 286). As a member of the crew of the Dakotan, MacClennan would seem to have been subject to American jurisdiction in virtue of the principle expressed by Mr. Justice Blackburn in the statement (Queen v. Anderson, 1 C. C. R., 170) that “where a nation allows a vessel to sail under her flag, and the crew to have the protection of that flag, common sense and justice require that they shall be punishable by the law of the flag.” The same principle was recognized and applied by the Supreme Court of the United States in the well-known case of In re Ross (140 U. S. 453), in which it was held that a British subject who committed murder in Japan, while a member of the crew of an American vessel, was properly subjected to the jurisdiction of the American Consular Court at Yokohama.
Inasmuch as it appears that the British subject Alexander MacClennan became a seaman of the United States upon his enrollment in the crew of the American Steamship Berwyn and that the status so assumed was continued and confirmed by his acceptance of the offer of relief and transportation on the American Steamship Dakotan made by the American Consul at Alexandria, under provisions of statutes of the United States, I have to inform you that the Government [Page 81] of the United States is of the opinion that the American Consul at Alexandria was fully justified in advising MacClennan that he would be required to assist in the navigation of the Dakotan and in subjecting him to the process of the American Consular Court for an offense committed on board that vessel.
Accept [etc.]
- These bracketed insertions appear in the Secretary’s note.↩