The Italian Ambassador (Colonna) to the Secretary of State
The Royal Italian Ambassador presents his compliments to the Honorable Secretary of State and has the honor to refer to the Department’s note of April 3, 1941, concerning the taking of possession and control of 28 Italian merchant vessels lying in ports of the United States and the removal therefrom of the officers and crews.
In said note the Honorable Secretary of State stated that such an action has been taken in force of specific provisions of the law of the United States which make it a felony for the master or any person in charge or command of a vessel within the territorial waters of the United States, or for any member of the crew, or other person, willfully to cause or permit the destruction or injury of such vessel or to tamper with its motive power or instrumentalities of navigation and which authorize the authorities of the United States Government to take possession and control of any vessel and to remove therefrom the officers and their crews when such action is deemed to be necessary to protect the vessel from damage or injury or to prevent damage or injury to any harbor or waters of the United States.
In this regard and following the instructions received, the Royal Italian Ambassador has the honor to bring to the attention of the Honorable Secretary of State the following points:
1—Section 502, Title 18 of the Criminal Code of the United States, to which the Honorable Secretary of State seems, at least in part, to refer, could be applied only when the destruction or injury in question is intended “to injure or endanger the safety of the vessel, or of the cargo, or of persons on board”. But, as a matter of fact, according to [Page 467]information in possession of the Embassy, none of the damage and injury allegedly found on board the Italian vessels could affect or was intended to affect in any way the safety of the vessels or of the cargo or of persons on board thereof, nor could it constitute a danger to citizens, properties or waters of the United States. It would seem to have been intended to, and did, affect only certain equipment of the vessels, and, therefore, was forbidden by no law of the United States. In fact the Italian merchant ships were all docked as ships laid up and with machinery out of commission.
Furthermore, it is to be observed that the section of the statute above referred to applies exclusively to vessels engaged in foreign commerce of the United States, and was intended to protect such commerce from acts of sabotage committed by third persons to the prejudice of such commerce and of the vessels, their owners and their crews. The vessels here in question, however, were not and, at no time during a period of approximately ten months, had been engaged in such commerce but during the whole of said time had been lying idle and out of commission in various ports of the United States.
2—If, on the other hand, the law meant to be referred to by the Honorable Secretary of State as having been violated, should be, as certain language in his note would seem to imply, Section 193 of Title 50 of the United States Code (Section 3 of Title 2 of the Act of June 15, 191717), it is to be observed that the very wording thereof seems to negative the suggested violation. For that section of the Statute draws a clear distinction between a vessel as such and its equipment. It prohibits, in certain cases, destruction and injury to the vessel but not to equipment on board the vessel; yet, in respect to the forfeiture therein provided for in certain other cases, it specifies that not only the vessel but her “tackle, furniture, apparel and equipment”, as well, shall be subject to forfeiture. It would seem, therefore, to follow from every recognized canon of statutory construction, that the prohibition of destruction and injury to the vessel was never intended to cover the case of an owner’s dismantling, destroying or removing engine machinery or other equipment carried aboard his vessel. And no claim has been made, it seems, that the vessels here involved were themselves destroyed or injured; the only claim asserted would seem to be that the vessel’s equipment was destroyed or injured. If so, it must follow that there can be no justifiable complaint that the said Section 193 of Title 50 of the Code has been violated in any respect whatever.
3—The acts upon which action is taken against the masters of the ships as well as against officers and members of the crews of the Italian merchant vessels could not be denounced as a crime because the master [Page 468]of a ship is the legitimate representative of the legitimate owner of the ship and acts in his behalf and, therefore, the acts which allegedly implicated the Italian seamen, constituted a legitimate exercise of the right of property.
4—To incriminate masters, officers and members of the crew for such acts is in conflict with the principles of international law in force of which acts performed on board foreign merchant vessels do not come under the jurisdiction of the State in whose harbors or territorial waters the ships happen to be, if and when—as in the case under discussion—the acts involved do not disturb the peace, the tranquillity or the order of said State.
Penal sanctions of internal law cannot, therefore, be applied to the acts involved because such an extension of United States laws would be entirely incompatible with the principles of international law above mentioned.
5—Action taken against officers and crews of the Italian merchant vessels for violation of the immigration laws seems also to be without legal ground because said officers and crews lived on board their ships and the vessels were compelled to take refuge in United States waters owing to the exigencies of war. Paragraph 1 of Subdivision I of Rule 7 of the Immigration Rules and Regulations of the United States, which would seem to be the provision of law relied upon, could have, therefore, no proper application to these seamen. That provision has regard only to the case of seamen who have deserted their ships.
Moreover, the Italian officers and crews were requested to and did register their presence here as aliens under the Alien Registration Act18 many months ago and their presence here had been at all times since a notorious public fact to which not the slightest objection was taken by anyone connected with the enforcement of the immigration laws of this country.
To give to the said Paragraph of Rule 7 of the Immigration Rules and Regulations the force now contended for would seem to constitute, therefore, a novel and wholly unjustified construction, without support either in the law itself or in the practical construction to which that law has heretofore been subjected.
The Italian Ambassador must, therefore, reiterate in the name of the Royal Italian Government the most vigorous protest for the arbitrary action taken by the United States Government against Italian property and nationals.