Papers Relating to the Foreign Relations of the United States, With the Annual Message of the President Transmitted to Congress December 2, 1902
Mr. Clayton to Mr. Hay.
Mexico, October 24, 1902.
Sir: Referring to Department’s instruction No. 736 of July 14 last, relating to the question of the right of the Mexican judicial authorities to assume jurisdiction over disputes between masters, officers, and crews of merchant vessels in Mexican ports, and the propriety of the negotiation of a supplementary treaty article to meet this question, and to my dispatches No. 1529 and 1547, of August 14 and 26 last, respectively, upon the same subject, I now have the honor to transmit herewith a copy and translation of a note from Minister Mariscal, dated the 6th instant, in reply to mine of the 14th of August last, a copy of which was transmitted with my aforesaid dispatch No. 1529. It will be observed that Mr. Mariscal, after referring to Mexican legislation and jurisprudence concerning offenses committed on board of foreign vessels at anchor in Mexican ports, is of the opinion that the celebration of a new treaty does not appear to be necessary, as without it, and simply by virtue of Mexican laws, the American merchant marine enjoys in Mexican ports all the facilities and exemptions asked for in my aforesaid note. He expresses the hope that the Department of State will be of the same opinion.
I have the honor to transmit also a copy of my note to the foreign office of September 3 last.
I have, etc.,
Mr. Clayton to Mr. Mariscal.
Mexico, September 3, 1902.
Mr. Minister: I have the honor to acknowledge the receipt of your excellency’s esteemed note of the 16th ultimo, informing me that the question of an additional article to the treaty between the two countries to define the exclusive power of consular agents to take cognizance of and to determine difficulties which may arise at sea or in ports between captains, officers, and crews of vessels, has been referred to the consulting attorney of the sections of your excellency’s department.
Awaiting the information referred to in said note, I have, etc.,
Mr. Mariscal to Mr. Clayton.
Mexico, October 6, 1902.
Mr. Ambassador: Referring to my note of August 16 last, relating to the desire which your excellency was pleased to express that our Governments should celebrate [Page 822] a convention which might confer certain powers upon consular agents to take cognizance of differences of every kind which might arise among the personnel of their respective merchant vessels, I have the honor to transcribe for your excellency a report just made by the solicitor of this department, to whom the matter was referred, as I informed your excellency in my said note:
“The ambassador of the United States of America, in two separate notes of the same date (August 14 last), expresses the desire that Mexico and his Government should celebrate a treaty or an additional treaty article for the purpose of conferring upon consuls or consular agents special powers, with exclusion of the local authorities, to take cognizance of and to decide differences of any kind arising between the captain, the officers, and the crews of vessels belonging to the nation of which the said consuls may be.
“He also says that the judicial authorities of his country, in the absence of treaties, decline to take cognizance of said differences or disputes when the nation to which the vessel belongs has left the settlement of the same to its consuls abroad.
“And, finally, he expresses the satisfaction his Government would feel if the authorities of our ports would adopt the same rule of conduct pending the celebration of the proposed treaty.
“In compliance with your directions I proceed to give as briefly as possible my opinion in the matter.
“One of the questions most discussed in international law is the one relating to the legal regimen of merchant vessels and their crews in foreign ports.
“Two opinions have divided the field of the theory in regard to the offenses or infractions committed on board—one in favor of the jurisdiction of the State to which the vessel belongs, and another which gives the preference to the nation to which the port in which the act occurs belongs.
“In rigorous law, the latter is the only one admissible.
“‘Toute la question est de savoir si c’est la souveraineté de l’Etat dont le navire porte le pavilion ou eel le de l’Etat niaitre du port qu’il faut prendre pour point de départ. Sous ce rapport, nulle hésitation n’est permise. Si la première est absolue sur le territoire de cet Etat, et doit être respectée même en pleine mer, en tant qu’elle s’étend sur le navire couvert par son pavilion, il n’y a aucune raison juridique valable pour justifier la prétention d’un Etat à exercer sa souveraineté là où en règne incontestablement une autre et pour rapprocher le régime du navire dans les ports de celui auquel il est soumis en pleine mer. La nature juridique de ces deux domaines maritimes est distincte: la pleine mer est libre; les ports sont sous la dépendance exclusive de l’Etat riverain. L’extension de la souveraineté nationale sur le navire en pleine mer ne s’explique et ne se légitime que par l’absence d’une domination quelconque de la part des autres Etats; comment est-il logiquement possible de vouloir l’imposer là où cette condition essentielle fait défaut?’ (Comte M. Rostworoski, Annales de l’Ecole libre des Sciences Politiques, 1894, p. 689.)
“It has been vainly tried to oppose another of equal juridical force to the principles of territorial sovereignty, unless it is that which has been called ‘the principle of the territoriality of merchant vessels,’ and which consists in attributing to them the character of a port of the territory of the nation to which they belong, as Pradier-Foderé well states it:
“‘Les caractères qu’on remarque dans les navires de guerre ne se trouvent point dans les navires de commerce. Ces derniers, équipés par de simples particuliers, dans des vues purement commerciales et pour des intérêts privés, ne sont pas une émanation de l’Etat dont ils portent le pavilion; ilsne font pas partie de la force armée de cet Etat; ils ne sont destinés ni à défendre leur pays contre les forces de l’ennemi, ni à la surveillance des côtes, ni à exercer la police de la navigation. Habitations mobiles des sociétés partieulières, s’ils sont, comme tels, soumis anx lois de la puissance dont ils relèvent et s’ils doivent en être protégés comme tous les nationaux d’ailleurs, ni leur capitaine, ni ses subordonnés, ni aucune autre personne de leur équipage ne representent à leur bord le gouvernement de l’Etat et ne peuvent etre considérés comme investis d’une partie de la puissance publique; il n’y a pas à leur bord de délégation officielle de la souveraineté d’un Etat, et, par conséquent, il ne saurait être question de la subordination d’une souveraineté à une autre. Si la raison justificative de l’immunité universellement aecordée aux navires de guerre dans les rades et ports étrangers doit être placée dans la nature spéciale de ces navires, et si la nature des navires de commerce n’est pas la même que celle des navires de guerre, il s’ensuit que la situation de ces divers navires dans les rades et dans les ports étrangers doit différer au point de vue de Paction des autorités locales. Les navires de guerre seront exempts de la juridiction de les autorités, tandis que les navires de commerce lui seront soumis.’ (Pradier Foderé, Traité de Droit International Public, Tome 5, p. 482; Calvo, Le Droit International, Tome 5, p. 554.)
[Page 823]“The rigor of the principles in this case, as in so many others, has been extenuated for reasons of mutual convenience and international courtesy and because of the necessity of giving navigation and commerce all the facilities and freedom of action possible.
“Hence the limitations or restrictions imposed upon territorial jurisdiction, generally accepted by the publicists and the legislation and the jurisprudence of the majority of the civilized nations.
“The system accepted by these, with the exception of England, and which may be called the French system because of its having its origin in the celebrated opinion of the council of state of October 28, 1806, is the following, which among many other citations which might be made, I copy in continuation from Bonfils, because of the conciseness and clearness with which the said author sets it forth:
“‘On divise les faits délictueux en deux classes: Dans la premiére, on place: 1°, les actes de pure discipline intérieure, les délits de fonctions, et 2°, les crimes et debts communs, accomplis par un homme de l’équipage, lorsque la tranquillité du port n’en est pas troublée. A l’égard des ces faits les droits de la puissance étrangère doivent etre respectés. L’autorité francaise ne doit pas s’occuper de ces actes, à, moins que son secours ne soit réclamé. La seconde classe comprend: 1°, les crimes ou débts commis même à bord contre ou par des personnes étrangères a l’equipage, et 2°, ceux accomplis par des gens de l’équipage entre eux, lorsque la tranquillité du port est compromise, ou lorsque le secours de l’autorité française est réclamé. La connaisance de ces faits délictueux appartienta nos tribunaux de répression: la protection accordée aux navires étrangers dans les ports francais ne saurait dessaisir la juridiction territoriale, pour tout ce qui touche à la sécurité publique.’ (Bonfils, Droit International Public, sec. 625, p. 359.)
“The Institute of International Law, of which the high scientific authority is recognized by all, in the rules which it adopted in regard to definition and regimen of the territorial waters, adopted in its session of 1894–1895, held in Paris, adhering to the most rigid principles of the law of nations, established in article 8, absolutely and without exception of any kind, the jurisdiction of the States, owners of the said waters, over foreign merchant vessels.
“It only admitted (article 6) certain limitations in regard to offenses committed in certain cases on board of vessels simply passing through the said territorial waters.
“Later, and after luminous and prolonged discussion upon the legal regimen regarding vessels and their crews in foreign ports, had in Venice (1896), Copenhagen (1897), and The Hague (1898), it approved, on August 23, 1898, the regulations of which I deem it indispensable to copy the relative articles because of their exceptional importance:
- “‘Art. 29. Les navires de toutes nationalités, par le fait seul qu’ils se trouvent dans un port ou une portion de la mer dépendant du même régime, sont soumis à la juridiction territoriale, sans distinction à raison des faits qui se sont produits à bord ou à terre.
- “‘Art. 30. Par exception, les faits commis à bord des navires dans un port, qui ne constituent que des infractions à la discipline et aux devoirs professionnels du marin, ne relevent que de la justice nationale du bord. L’autorité locale doit s’abstenir d’intervenir, à moins que son concours ne soit régulièrement réclamé, ou que le fait ne soit de nature à troubler la tranquillité du port. Même dans ce dernier cas, la juridiction locale ne peut devenir compétente que si le fait constitue, en même temps, une infraction disciplinaire, un délit de droit commun.
- “‘Art. 32. Toutes les contestations entre les gens de l’équipage, ou entre eux et le capitaine, ou entre les capitaines des divers bâtiments d’une même nation dans le même port, à, raison de l’engagement des matelots ou de différences analogues, doivent etre terminées en dehors de l’ingérence des autorités locales.
“‘Sont assimilées, pour l’application de cette règie, aux personnes appartenant à la nationalité du navire les personnes engagées dans l’armement et portées sur le rôle de l’équipage, quelle que soit leur véritable nationalité.’ (Annuaire de l’Institut de Droit International, Tome 17, p. 281.)
“As the result of the foregoing extracts and the discussion which preceded them, confining ourselves to the point in question, it may be said that the accepted doctrine of international law is as follows: Infractions of discipline and neglect of professional duty by the crew, and differences among persons of the crew, or between them and their captains, are not within the jurisdiction of the local authorities. The said authorities should not interfere except when their aid is asked for, when the tranquillity of the port is disturbed, or when one who does not belong to the crew of the vessel takes part in the said infractions or differences.
“It is difficult, as Pradier-Fodéré says (Vol. V, p. 519), to say precisely what is the doctrine of the United States of America in regard to the matter in question.
[Page 824]“There, generally, the tendency to apply the principle of territorial jurisdiction in all its force and to give to its tribunals a very extensive discretional power on this point, appears to rule.
“It may be safely affirmed that when a merchant vessel of one country visits the port of another for the purpose of trade, it owes temporary allegiance and is amenable to the jurisdiction of that country, and is subject to the laws which govern the port it visits so long as it remains, unless it is otherwise provided by treaty. Any exemption or immunity from local jurisdiction must be derived from the consent of that country. (Note of Mr. Frelinghuysen, Secretary of State, to Mr. Randall. Notes of Mr. Marcy, Secretary of State, to Mr. Paredes, of September 27, 1853, and to Mr. Clay, of August 31, 1855, and of Mr. Frelinghuysen to Baron Sehaeffer, of November 13, 1883. Wharton, International Law Digest, sec. 35 A.)
“‘The practice of the courts of the United States, apart from consular conventions, seems to be to take cognizance of all cases except those involving acts of mere interior discipline of the vessel.’ (W. E. Hall, A Treatise on International Law, p. 212.)
“Even in the case of existing treaties with other foreign powers, the United States shows a certain repugnance to waive its rights of sovereignty.
“After referring to the many treaties which grant to consuls the power to act as arbitrators in differences which arise on board and prohibit the local authorities to take cognizance of them, unless they disturb the tranquillity of the port, or which occur among persons not of the crew, Hall adds, in his said work, section 58, page 212, the following:
“‘Practice, however, even in France, is by no means consistent, and consular conventions seem occasionally to be subjected to very elastic interpretation. When the second mate of an American vessel lying in the port of Havre killed one sailor and wounded another, the cour de cassation delivered a judgment which in effect asserted that merchant vessels were fully under the local jurisdiction whenever the State saw fit to exercise it; and in the United States the Supreme Court has held that a local court rightly took cognizance of a case in which one man was stabbed by another, during an affray that occurred between decks on a Belgian vessel and was unknown outside, notwithstanding that a consular convention existed between Belgium and the United States under which the local authorities were forbidden to interfere except when disorder arose of such nature as to disturb the tranquillity of public order on shore or in port.’
“Nevertheless, notwithstanding the severe criticisms of which the decision referred to in the foregoing citation has been the object, and which decision was pronounced on February 4, 1880, in the case of Wildenhus, of the Belgian vessel Noordland, notwithstanding the consular convention celebrated between Belgium and the United States, it may be expected that in the generality of cases, when there are treaties in force, that the zeal of the American authorities in favor of their jurisdiction will yield to the dignity of international stipulations.
“It was so affirmed on a formal occasion by Mr. Fish, Secretary of State, in his note to Mr. Marsh of May 2, 1876, and it is so understood from the terms of the consular regulations of the United States of 1881, cited by Pradier-Fodéré:
“‘The general principles of the treaties and conventions of the United States with foreign powers with regard to vessels and their crews is that consular officers shall have jurisdiction in questions of wages, the shipment and discharge of sailors, and all cases which occur on board of vessels of the United States in foreign ports, whether in the matter of contracts or in that of crimes or offenses, so long as the said questions relate to the vessels, their cargoes, or to the persons of their crews. If they affect the public peace of the ports or the rights of persons who do not belong to the crews, they fall within the jurisdiction of the local authorities.’
“Mexico has always adhered in this matter to the principles which may be called classic, those which form the French system, and are accepted by the greater part of the enlightened nations and which will undoubtedly become, at a time not remote, the universal rule among nations.
“The decree of January 23, 1854, enumerated among admiralty cases ‘those which relate to ordinary crimes or offenses committed on board of a national merchant vessel in a foreign port, roadstead, or territorial waters, by a member of the crew against another of the same, or of another Mexican vessel, provided that in case it should be in a port the tranquillity of the same shall not have been disturbed; those of ordinary crimes or offenses committed on board of a foreign merchant vessel in any port, roadstead, or territorial waters of the Republic, by a person not of the crew or against one who is not of the crew; and those of crimes or offenses committed, in the case of the foregoing paragraph, by persons of the crews among themselves, provided that the tranquillity of the port shall have been disturbed.’ (Art. 1, sees. 3, 4, and 5.)
“By virtue of an opinion asked for by the department of war and marine of that [Page 825] of justice and public instruction in the matter of wounds inflicted upon Nicholas Ger-vasio, seaman of the Italian hermaphrodite brig Margarita, at anchor in the port of Vera Cruz, by a person not belonging to the crew, Licentiate Jgnacio Mariscal, then minister of justice, in bis note of March 19, 1869, basing his opinion upon authorities of reputation, explained with all clearness the doctrine applicable to such cases, of which the following paragraph, which I copy literally, may be considered as a résumé:
“‘Confining ourselves to the acts which occur on board of vessels of any nationality, which may be in the port of another country, in time of peace or as neutrals, the jurisprudence most generally accepted and which, according to the opinion of Wheaton, is most in accord with the principles of the universal law of nations, is that adopted by the French Government, which recognizes two classes of acts:
- “‘First. That of acts of the pure interior discipline of the vessels, and even of crimes and offenses committed by the crews among themselves, when the tranquillity of the port has not been disturbed.
- “‘Second. That of said crimes or offenses committed on board against persons who do not belong to the crew, or by one who does not belong to it, or by members of the crew among themselves, when the tranquillity of the port has been disturbed.
“‘The acts included in the first class are exempt from the local jurisdiction, which should not interfere in them unless its aid or protection should be asked. With respect to those included in the second class, the French legislation decides that its cognizance pertains to the authorities of the country to which the port belongs, because the protection granted to merchant vessels in the ports does not prejudice the territorial jurisdiction in all that relates to the public interests or to those of the State, and these are always affected when persons who do not belong to the crew take part, and they evidently are subject to the local jurisdiction.’
“The law relating to foreign consuls in the Republic, of November 26, 1859, in article 10, Section VIII, authorizes them ‘to be arbitrators in differences arising between captains and crews of vessels belonging to their respective countries with regard to shipments and wages, as well as to the terms of service, provisions, and other things which do not constitute offenses, without intervention of the local authorities, unless the action of the captain or that of the crew should disturb the order or tranquillity of the country, and also when the commercial agents ask for the said intervention in order that their decisions be carried into effect. But this arbitration does not prevent the parties in interest from applying to the authorities of their respective countries;’ a provision repeated with respect to our consuls in foreign countries in article 10 of the Mexican Consular Regulations of September 16, 1871.
“In accordance with all these antecedents and with our invariable tradition, our penal code, in force throughout the Republic in Federal matters, established the rule applicable to the cases which are the subject of this study, a rule which should be examined with care because it will give us the elements necessary to formulate our conclusions with as much accuracy as may be possible.
“In article 189 it says:
“‘Considered to be committed in the territory of the Republic.
* * * * * * *
“‘3. Offenses committed on board of a foreign merchant vessel at anchor in a national port or in the territorial waters of the Republic if the delinquent or the one offended does not belong to the crew or the tranquillity of the port be disturbed. In the contrary case the law of reciprocity shall be observed.’
“Therefore it is seen that in two cases only is the competency of our tribunals to take cognizance of offenses committed on board of a foreign vessel obligatory and rigorous, whatever may be the legislation upon this matter by the country to which the latter may belong when the tranquillity of the port is disturbed and when the delinquent or the one offended does not form a part of the crew.
“In either of these two cases the jurisdiction of our authorities is imposed, although under the same circumstances the tribunals of the country to which the vessel belongs would refrain from taking cognizance of matters of this kind. If on the contrary the delinquent and the one offended belong to the crew and the tranquillity of the port has not been disturbed, the rule of reciprocity will be observed; that is to say, our tribunals will or will not take cognizance if under similar circumstances those of the country to which the vessel belongs are or are not competent according to its legislation.
“There has been much discussion with regard to what should be understood by disturbing the tranquillity of the port and as to whether reciprocity should be applied only when there is a treaty between the two countries, or, if on the contrary, it should be observed even when there are no diplomatic relations existing between the said countries.
[Page 826]“I believe it unnecessary to discuss these questions considering the object of this study, and therefore I will confine myself to remarking—because it is very important— that with the difference of that which is accepted by the Institute of International Law and by several authorities and legislations, our penal code requires, not that the offense be sufficient to disturb the tranquillity of itself, but that it shall be disturbed in fact and in an effective manner; and with respect to reciprocity, that it is not necessary that analogous cases shall have occurred with our vessels in foreign ports, but that for the guidance of the conduct of our tribunals it will be sufficient to observe that of those of the other countries in accordance with their legislation and jurisprudence.
“An omission may be noticed in article 189 of our penal code—the one which relates to the third of the exceptions generally accepted and which determines the competency of the local authorities when their protection is asked. But the latter part of this article supplies this omission, as, prescribing the observance of reciprocity and the said exception being accepted by most of the civilized countries—by all of them it may be said—it is indubitable that the Mexican authorities have jurisdiction in cases in which their aid is solicited to suppress or punish offenses committed on board of foreign merchant vessels at anchor in any of our ports.
“Of several decisions of our courts which have applied article 189 of our penal code, I consider it proper to cite the very notable one pronounced on February 25, 1876, by the supreme court of the nation in the matter of the homicide of the seaman Augusto Durand, committed by Capt. Eugenio Antinori, on board the French barque Anemone, at anchor at Isla del Carmen, State of Campeche. In said decision, cited with encomiums by Calvo, Fiore, and other authors, it was decided, in accord with the luminous petition of the public attorney, that the Mexican authorities were not competent to take cognizance of that offense because the tranquillity of the port had not been disturbed; because the slayer and the deceased were of the crew, and because the aid of the said authorities had not been solicited. (El Faro, March 14 and 15, 1876.)
“Lately, in a case very similar to the one cited by the ambassador of the United States in one of his notes, that of the difficulty which occurred between an officer and several of the crew on board of the American steamer San Juan, at anchor at Acapulco, the district judge of Guerrero, on the same grounds, in decision of July 2 of the current year, which was affirmed by the third circuit court, decided that he was not competent.
“It seems to be unnecessary to remark that the doctrine based on article 189 of the penal code, which has just been cited, and which relates to acts which constitute true offenses, is entirely applicable, for a majority of reasons, to simple difficulties or disputes, of whatever kind they may be, arising between the captain, the officers, and the crews of foreign merchant vessels lying in our ports.
“And although this principle has been implicitly recognized in all our treaties of commerce and navigation, as it gives consuls the right to reestablish order on the vessels of their country and to ask the aid of the local authorities in the same, the said principle has been expressly and terminantly stipulated in our treaties with Sweden and Norway of July 29, 1885, and Salvador of April 20, 1893, which say, in Articles VII and XV, respectively:* * *
“‘It is also stipulated that the merchant vessels of the contracting parties shall be subject, respectively, to the jurisdiction of the one in whose ports, roadsteads, bays, inlets, or territorial waters they may be, for crimes, offenses, or acts committed on board by a person not belonging to the crew, or against one who also does not belong to it, or by persons of the crew among themselves, provided that in the latter case the tranquillity of the port shall have been disturbed.
“‘Merchant vessels of either of the two contracting nations from the time of their entrance into the territorial waters of the other, shall be subject to the local jurisdiction in all that does not concern their interior discipline or offenses committed among their crews which may not disturb the tranquillity of the port in which they may be.’
“From all that has been set forth it may be deduced:
- “First. That in accordance with our legislation and our jurisprudence, and as a general rule, our courts are not competent to take cognizance of offenses committed on board of foreign vessels at anchor in our ports.
- “Second. That they have jurisdiction to take cognizance of them when the intervention of our authorities is solicited, when the tranquillity of the port is disturbed, or when the offense is committed by or against a person who does not belong to the crew.
- “Third. That the foregoing rules are applicable, with greater reason, to the differences or disputes between the captain and the crew, or between the latter among themselves, and which do not constitute true crimes.
“The ambassador of the United States, in order to indicate clearly the idea of the international stipulation which he proposes, and as forms upon which it should be based, presents several articles of an equal number of treaties celebrated by his country with foreign nations. All of them contain, substantially, the same agreements, and for that reason I will limit myself to copying, in continuation, the one celebrated with Germany, selected because, in my opinion, it expresses with greater clearness the fundamental idea upon which all of them are based:
“‘Art. XIII. Consuls-general, consuls, vice-consuls or consular agents shall have exclusive charge of the internal order of the merchant vessels of their nation and shall have the exclusive power to take cognizance of and to determine differences of every kind which may arise, either at sea or in ports, between captains, officers, and crews, and especially in reference to wages and the execution of mutual contracts. Neither any court or authority shall, on any pretext, interfere in these differences except in cases where the differences on board ship are of a nature to disturb the peace and public order in port, or on shore, or when persons other than the officers and crew of the vessel are parties to the disturbance.
“‘Except as aforesaid, the local authorities shall confine themselves to the rendering of efficient aid to the consuls when they may ask it in order to arrest and hold all persons whose names are borne on the ship’s articles, and whom they may deem it necessary to detain. Those persons shall be arrested at the sole request of the consuls, addressed in writing to the local authorities and supported by an official extract from the register of the ship of the list of the crew, and shall be held, during the whole time of their stay in the port, at the disposal of the consuls. Their release shall be granted only at the request of the consuls, made in writing.
“‘The expenses of the arrest and detention of those persons shall be paid by the consuls.’
“Hence it may be readily seen that the rules which the representative of the United States proposes to adopt by means of an international agreement are precisely the same as those which Mexico has always observed in this matter, following the example of the majority of civilized nations.
“The celebration of the said treaty does not appear, therefore, to be necessary, as, without it, and simply by virtue of our laws, the American merchant marine enjoys in our ports all the facilities and exemptions which the ambassador of the United States asks for it with such laudable zeal.”
The foregoing report having been approved by this department, it hopes, in view of the terms in which it is conceived, that your excellency, as well as the Department of State of the United States, will be of the same opinion, that the celebration of such convention is not necessary, as international practice is sufficient to secure the object which your excellency’s Government seeks to obtain.
I have the pleasure to return to your excellency the book which came with the said notes, and to again express, etc.,