The Secretary of State to the Chargé in the Union of South Africa ( Linnell )

No. 234

Sir: Referring to your despatch No. 938 of August 21, 1935,1 requesting to be instructed whether American consular officers in the Union of South Africa should take out insurance policies under the Workmen’s Compensation Act covering the clerical employees of their respective consulates, you are informed that the Department does not have at its disposal funds that would be available for the payment of premiums on such insurance.

It may be added for your information that Great Britain and Germany have various forms of social insurance and a reply similar to the above has been made to the inquiries received from American diplomatic and consular officers in regard to the payment of premiums.2 It is assumed that where such insurance is compulsory the employees are personally paying the premiums.

The position of the Department is that no government can require another government to pay premiums of this nature. The principle on which this decision is based is clearly set forth in the following summaries of certain cases involving the giving of advance notice of the termination of services of foreign employees in American consular offices or in lieu thereof the payment of salary for a specified period of time. It appears to be well established by the rules of international law and practice that a government maintaining representation in a foreign country is not bound to adhere in matters of this kind to the laws or customs pertaining to such foreign country.


In 1927 an Italian subject brought an action against Mr. Byington,3 representing the Consulate General of the United States at Naples, to compel the Consulate General to pay him 8,400 lire, representing four [Page 551] months’ salary, to which he claimed he was entitled because of the failure of the Consulate General to notify him in advance of his separation from the service in 1922. He also claimed 29,400 lire, representing the total indemnity “of discharge calculated on the basis of half a month’s salary for each of the twenty-eight years’ service rendered” the Consulate General. The right of the court to entertain the action was contested on the ground that “all the states are sovereign and independent so as not to be able to subject one to the other in whichever way they act”. (File #123B99/182 and enclosures.) The court in a decision published January 23, 1928, rejected the demands of the claimant. In so holding the court stated that to accede to the claim “would mean failing to give the homage due to the Country to which Calvaruso voluntarily deemed to submit himself, adhering to fulfill the duties of public character, placing himself in the administration, although extraterritorium, and at the political and juridical dependence of such Country.”

In a despatch dated April 6, 1929, the Consul at Turin, Italy, reported the receipt by him of a letter from Mrs. Bianca Colombini Francesconi, requesting payment on account of the services of her late husband who had died on December 12, 1928.4 The Consul stated that, under Italian law, every person employed at a salary in excess of 800 lire a month was entitled, either upon dismissal or if the business was dissolved, to additional compensation at the rate of one month’s salary for each year employed; that it was his understanding that the law applied to employees who died while in the service; that Francesconi was continually employed in the Consulate for a period of nine years and at the time of his death was receiving a salary of $960. per annum, which would make his indemnity $720. (File #125.9553/119). In an instruction dated April 14, 1931, to the Ambassador at Rome, the latter was requested to make inquiry regarding the matter and inform the Department in detail with respect to the application of the provisions of the law to American Consulates in Italy as well as to those of other nations. In the despatch dated May 16, 1932, the Embassy transmitted a note verbale from the Foreign Office stating that the law in question (Decree-Law No. 1825 of November 13, 1924, partially modified by Decree-Law No. 740 of March 22, 1928) applied to all employment contracts, but that “as a general rule a distinction must be made with respect to the nationality of the employee referred to in the contract, since it seems that in the case of employees who are citizens of the State which the agent represents, the situation differs from that in which employees of other nationalities are concerned.”

[Page 552]

In an instruction to the Embassy dated June 28, 1932, the Department expressed the view that the Decree-Laws in question “relate entirely to employment contracts of a private nature”, and that the decision of the Royal Court of Appeals at Naples sent to the Department with despatch No. 167 of December 23, 1931, from the Consul General at Naples, authoritatively placed employment of an official nature by the embassy and consular offices in Italy outside the jurisdiction of the Italian courts. The American Consul at Turin was instructed under date of June 24, 1932, in this sense, and was told that no compensation should be paid to Mrs. Francesconi on account of the services of her husband.

The decision of the Italian court just mentioned was rendered in the case of Salvatore Mazzucchi versus the American Consulate General of the United States at Naples in the person of the Consul General, Mr. Dreyfus, for 17,600 lire, with interest, on account of Mazzucchi’s discharge by the Consul General in August, 1930, after some forty years of service.5 The amount of the claim consisted of two months’ salary for discharge without notice, as well as salary for one-half month for each of the forty years of service. (File #123D82.) The court dismissed the case December 31, 1930, holding that Consular Agents, either career or honorary officers, representing their States, as well as Diplomatic Agents “should be considered employees and representatives discharging the duties of office.… To these representatives qualifications of a general character are attributed, such as those conferred upon diplomatic agents: the protection of their subjects or citizens; their relations in connection with the local authorities; the careful observance of treaties, … which attributes confer upon the officer the right to represent the State from which he depends.” Finally, the court stated that Mazzucchi’s connection with the Consulate General did not authorize him to bring “this public office before Italian judges unable to examine how and under what conditions the Consulate General discharged him; his duties, as stated, having been for public service.”

On May 18, 1932, the Department inquired of the United States Employees’ Compensation Commission, Washington, D. C., whether the Act, approved May 17, 1928, entitled “An Act To provide compensation for disability or death resulting from injury to employees in certain employments in the District of Columbia, and for other purposes,” is applicable to employees of American or foreign nationality in the embassies and legations in the District of Columbia. The Act provides that—

“the term ‘employer’ shall be held to mean every person carrying on any employment in the District of Columbia, and the term ‘employee’ [Page 553] shall be held to mean every employee of any such person” (25 [45] Stat, at L., Pt. 1, 600)

It also expressly provides that it shall not apply to Government employees of the United States. In these respects the law is similar to the Mexican labor law.

In a letter, dated May 27, 1932, the Commission replied in part as follows:

“The law referred to relates to an employer carrying on any employment in the District of Columbia and makes no exception relative to employees of foreign governments. This law, however, adopts and makes applicable to employments in the District of Columbia the provisions of the Longshoremen’s and Harbor Workers’ Compensation Act of March 4, 1927.6 Section 3 (a) (2) of the latter act exempts from the application of this law an officer or employee of any foreign government or of any political subdivision thereof.

“The Commission has held informally that a foreign government is not subject to the District of Columbia Compensation law. Examination of the records of the Commission fails to disclose a record of any report of an injury to an employee of a foreign Embassy or Legation, and it does not appear that these agencies have secured the payment of compensation to their employees under the law by taking out insurance or qualifying as self-insurers.

“The Commission accordingly advises that it is of the opinion that foreign Embassies and Legations in the District of Columbia do not come within the terms of the Act of May 17, 1928, and that they are not required to secure the payment of compensation to their employees under that law.” (File #701.0011/159)

Very truly yours,

For the Secretary of State:
Wilbur J. Carr
  1. Not printed.
  2. Recent correspondence not printed; but see Foreign Relations, 1901, pp. 172173.
  3. Correspondence not printed.
  4. Correspondence not printed.
  5. Correspondence not printed.
  6. 44 Stat. 1424.