196.6/1132
The British Embassy to the Department of State
Memorandum
Senate Bill S. 314 passed the Senate on February 26th.
This bill has been considered by the Senate during previous sessions. In 1928 the bill was before the Senate under the number 2945 and the British Embassy represented to the State Department certain objections thereto in a memorandum dated April 26th.23 The bill came before the Senate again under its present number early in 1930, but no action was taken. The British Embassy at this time submitted a further memorandum to the State Department recapitulating the objections against the bill enumerated in their previous memorandum. This second memorandum was dated March 19th, 1930, and pointed out that the bill by seeking to vary forcibly the provisions of a contract, perfectly valid under British law, made within British jurisdiction, and in many cases between British subjects, and purporting apparently to regulate the manner in which a master of a British ship may engage a British crew in a British port, appeared to be contrary to the generally accepted principles of international law.
The bill seeks so to amend Section 16 of the LaFollette Seamen’s Act, held to have been largely invalidated by various legal decisions, as to make its operation effective. Its purpose—that is to say the original intent of Article 16 of the Seamen’s Act and the purpose of the present amending bill—is described in the report of the Senate Committee recommending its passage as follows:—
“Section 16 of the seamen’s act abolished the remedy of arrest and imprisonment for desertion of foreign seamen in ports of the United States, and treaty provisions requiring the specific performance of the terms of contracts for seamen’s services made abroad were abrogated. Inasmuch as wages were higher in ports of the United States than in foreign ports, it was contemplated that foreign seamen who signed shipping articles at the lower wage scales prevailing at foreign ports would, since no longer prevented by legal process, take advantage of higher American wage level on reaching ports of the United States and find new jobs at the higher wages. The foreign ship must then fill up its crew at the current wages in the United States ports. Thus, both vessels of the United States and foreign vessels running to and from ports of the United States would have the same labor operating costs. Such a plan was dependent, however, upon the foreign seaman having sufficient money upon reaching the American port to carry him until he procured his new job. He must not be compelled, by lack of money to meet his immediate necessities for food and lodging to [Page 812] remain with the foreign ship. Therefore section 4 of the seamen’s act provided that upon reaching the United States port the foreign seaman might demand one-half of his wages theretofore earned on the voyage. By section 11 of the seaman’s act it was attempted to make impossible the evasion of the provision through the device of deducting from such half earnings advance payments of wages or allotments of wages made when the seamen signed the shipping articles in the foreign port. If payment of the half earnings could be prevented through deductions for advance pay or allotments, then the seaman upon the foreign vessel would have no ready money upon arrival at the United States port. As a consequence, he would be unable to leave the foreign ship in search of higher wages, even though the foreign ship’s wages were lower than the American wage level for seamen.”
The objections to the bill have already, as mentioned above, been urged by the British Embassy. But they could hardly be better stated than they have been in a memorandum submitted to the Senate by Senator Copeland and printed in the Congressional Record of February 23rd.
The British Embassy have received telegraphic instructions from the Foreign Office pointing out that His Majesty’s Government in the United Kingdom would view with serious concern the possibility of the passage of this bill, and His Majesty’s Ambassador has orally drawn the attention of the Secretary of State to his Government’s anxieties on this score. The British Embassy understand that the objections which have been urged against the bill will be brought again to the attention of the appropriate committee of the legislature, should there be a likelihood of further action on the bill.24 It is in this connection that the attention of the State Department is drawn to Senator Copeland’s memorandum. It is as follows:—
“S. 314 purports to prevent vessels of foreign countries from advancing wages to seamen on board their vessels in foreign ports by providing that such advances may not be deducted when wages are demanded in ports of the United States.
The effect of the law at the present time is that the advancing of wages is unlawful on American vessels either in the United States or in foreign countries, and it is also unlawful for foreign vessels to advance wages to their seamen while in waters of the United States. With respect to the class of cases now covered by law, such advances not only may not be deducted but involve persons making them in a crime, but with respect to the proposed extension to advances made [Page 813] on foreign ships in foreign countries, the criminal element is eliminated. Regardless of the questions of the merits of such inhibitions, it is conceded that legislation with respect to American vessels anywhere and with respect to foreign vessels while within the territorial waters of the United States are proper subjects of regulation by the United States, but when this country attempts, directly or indirectly, to regulate the relations of foreign vessels and their seamen in foreign ports, the thought is immediately suggested that this is not a proper sphere of regulation by the United States but is a subject of regulation for either the country in which such advances are made or the country whose flag the vessel flies.
In the case of Jackson v. The “Archimedes” (275 U. S. 463, 72 L. Ed. 374, 377), the Supreme Court of the United States states: ‘Congress could not prevent the making of such contracts in other jurisdictions. If they saw fit to do so, foreign countries would continue to permit such contracts and advance payments no matter what our declared law or policy in regard to them might be as to vessels coming to our ports.’
If such regulation can properly be exercised by the United States over foreign vessels in foreign countries, similar powers must necessarily exist in such foreign countries, with the result that hopeless conflicts in maritime law would obtain, and vessels would frequently find themselves inhibited from doing a thing under the laws of one country which it would be required to do by the laws of another.
All legislation and regulations heretofore seem to have appreciated this contingency and restricted their sphere of operations to their own vessels and vessels of foreign countries within their territorial waters and any departure from this policy must necessarily result in the confusion heretofore referred to.
In the Jackson case, just referred to, the Supreme Court stated: ‘Congress certainly did not intend to punish criminally acts done within a foreign jurisdiction; a purpose so wholly futile as not to be attributed to Congress’.
It is respectfully suggested that the civil aspects of such advances are no more the proper subjects of regulation by the United States than the criminal aspect declared futile by the Supreme Court.
Whether the enactment of such legislation would violate our international treaties or not is relatively unimportant because there is no question but that such proposed legislation does violence to the limits within which nations have confined their regulatory powers by virtue of the necessities of international commerce.
In the report submitted by Mr. Nye on the bill (S. 314) he states that one of the purposes of the La Follette Seamen’s Act was to raise to American level the wage standards for crews of foreign vessels by abolishing the remedy of arrest and imprisonment for desertion in ports of the United States. Inasmuch as wages are higher in the United States ports, Senator Nye points out it was contemplated that foreign seamen should take advantage of the higher wages prevailing in United States ports, and that such a plan was dependent upon seamen having sufficient money upon reaching the American port to carry him until he procured himself a new job, which financial status [Page 814] he could not enjoy if permitted to make advances, etc. In this connection, it is considered wise to call attention to the fact that there is a prevalent misconception as to the effect of the La Follette Act upon desertion. Such arguments as that suggested by Senator Nye in his report presuppose that the La Follette Act legalizes desertions. Such is not the case for all the La Follette Act did was to abolish arrest and imprisonment as a penalty for desertion, but it is still an offense under the navigation laws, punishable by the forfeiture of wages and effects. In private life inducing employees to violate or breach their contracts is looked upon as unethical, to say the least, and it is questionable how far the United States should go toward any such purpose with respect to inducing seamen on foreign vessels to violate their contracts.
Not only is inducing parties to breach their contract unethical but in Angel v. Chicago, St. P. M. & O. R. Co. (15 U. S. 1, 38 L. Ed. 55), the Supreme Court of the United States ruled: ‘It has been repeatedly held that if one maliciously interferes in a contract between two parties and induces one of them to break that contract to the injury of the other, the party injured can maintain an action against the wrongdoer.’
Therefore, not only does this legislation propose the furtherance of unethical acts but purports to place the United States in the position of doing an act which, if done by a private party, would subject them to an action for damages.
The position of the proponents of this legislation is not quite clear, for unquestionably it is designed to encourage desertions of foreign seamen in ports of the United States, whereas, with respect to S. 202, providing for the deportation of certain alien seamen,25 Mr. Andrew Fureseth, president of the International Seamen’s Union, the organization behind both these measures, complains to Congress of desertions from foreign vessels of alien seamen and urges that they be punished, but, in connection with S. 314, he complains that the steamship companies will not make it possible for their seamen to desert. In any event, the seamen’s act was passed several years before the United States found it necessary to adopt a policy of restricting immigration, and even if the desertion of seamen should have been encouraged at that time, certainly this is not the case at the present time when the desertion of seamen is such a difficult problem to those administering our immigration laws.
In conclusion, therefore, it seems to me that not only does this legislation propose the regulation of matters not properly the subject of regulation by the Congress of the United States but is unwise from the standpoint of international policies and ethics. It seeks to promote the very desertion of alien seamen that its proponents complain of in connection with another measure passed by the Senate a few days ago.”
- Foreign Relations, 1928, vol. i, p. 832.↩
- Senate bill 314 failed of passage in the House of Representatives during the 71st Congress, and a renumbered bill, S. 1559, was introduced in the Senate on December 14, 1931. By letter dated January 4, 1932, the Department advised the Chairman of the Senate Committee on Commerce of its opposition to the bill (196.6/1141).↩
- For correspondence concerning Senate bill 202, see pp. 815 ff.↩