196.6/1068
The Secretary of State to the Honorable Wallace H. White, Jr. 22
Sir: I have the honor to enclose for your consideration a copy of a memorandum of April 26, 1928, left at the Department by the British Ambassador,23 in which attention is drawn to the difficulties which may attend the enactment into law of an amendment to the Seamen’s Act of March 4, 1915, passed by the Senate on April 24, 1928.
The amendment in effect appears to declare illegal contracts for the payment of advance wages concluded by aliens without the jurisdiction of the United States in connection with the employment of alien seamen on board alien vessels and declares that “the courts of the United States shall be open to seamen for suits for payment of wages, irrespective of whether the wages were earned upon a vessel of the United States or a foreign vessel, or within or without the United States or territory subject to the jurisdiction thereof …”.
Without taking into consideration the question whether Congress has the power to declare that contracts made abroad by aliens are invalid, it is believed that the action contemplated in the amendment runs contra to generally accepted principles of law to the effect that contracts of all kinds are to be governed as to their nature, validity, and interpretation of the law of the place where they were made. While it is generally conceded that the courts of one State will not enforce a contract made in another where to do so would be in violation of their own statutes, or a settled public policy of a State, it is believed that contracts of this character are not in a true sense exceptions to the rule of universal validity being not invalid but merely unenforceable in the particular forum.
I may add that a representative of the Italian Embassy, under instructions from the Ambassador, called recently at the Department to state that his Government wished to make all reserves in connection with the passage by the Senate of the amendment to the Seamen’s Act and adverted to the provisions of Article 11 of the Consular Convention between the United States and Italy of 1878,24 which reads in part as follows:
“Consuls-General, Consuls, Vice-Consuls, and Consular Agents … shall alone take cognizance of questions of whatever kind, that may arise, both at sea and in port, between the captain, officers and seamen, without exception, and especially of those relating to wages and the fulfilment of agreements reciprocally made. The courts, or [Page 834] federal, state or municipal authorities in the United States and the tribunals or authorities in Italy, shall not under any pretext, interfere in such questions, …”
There would seem good grounds to fear that in so far as the amendment refers to the shipment of seamen on foreign vessels in foreign ports, it will give rise to numerous conflicts of laws, and may render the American merchant marine subject to retaliatory measures by foreign governments which in their effect may far out-weigh any advantages which might be secured by this legislation.
I have deemed it proper to bring these considerations to your attention, in the event that the amendment to the Seaman’s Act passed by the Senate be referred to your Committee, for such action as it may deem it appropriate to take in the matter with a view to meeting the objections discussed above.
I have [etc.]
Under Secretary