853.863/3
The Acting Secretary of State to the Portuguese Minister (Alte)
Sir: I have the honor to refer to your note of July 27, 1928, informing me that under Portuguese law all matters pertaining to the inter discipline of foreign merchant vessels in Portuguese waters are regulated solely by the laws of the country to which the vessel belongs and carried out by the captain of the ship and by the resident consular officer of that country. You add that these provisions apply to vessels of all nations that reciprocally grant the same treatment to Portuguese [Page 791] merchant vessels in their territorial waters, and you inquire whether Portuguese consular officers are invited to be present when American authorities take legal action on board Portuguese merchant vessels in American waters.
In reply I have the honor to inform you that there are no statutory provisions enacted by the Federal Government having a bearing on the matter which you brought to my attention. I may add that the question of the jurisdiction of foreign consular officers in the United States over vessels of their respective countries, temporarily within the territorial waters of the United States, has been in most cases determined by appropriate treaty provisions.
Attention in this relation might be called to the new treaties of the United States expressive of the present American treaty policy: Article XXIII of the Treaty between the United States and Germany of Friendship, Commerce and Consular Rights (Treaty Series, No. 725; 44 Stat. Large, part 3–2132)27 reads as follows:
“A consular officer shall have exclusive jurisdiction over controversies arising out of the internal order of private vessels of his country, and shall alone exercise jurisdiction in cases, wherever arising, between officers and crews, pertaining to the enforcement of discipline on board, provided the vessel and the persons charged with wrongdoing shall have entered a port within his consular district. Such an officer shall also have jurisdiction over issues concerning the adjustment of wages and the execution of contracts relating thereto provided the local laws so permit.
“When an act committed on board of a private vessel under the flag of the State by which the consular officer has been appointed and within the territorial waters of the State to which he has been appointed constitutes a crime according to the laws of that State, subjecting the person guilty thereof to punishment as a criminal, the consular officer shall not exercise jurisdiction except in so far as he is permitted to do so by the local law.
“A consular officer may freely invoke the assistance of the local police authorities in any matter pertaining to the maintenance of internal order on board of a vessel under the flag of his country within the territorial waters of the State to which he is appointed, and upon such a request the requisite assistance shall be given.
“A consular officer may appear with the officers and crews of vessels under the flag of his country before the judicial authorities of the State to which he is appointed to render assistance as an interpreter or agent.”
However, as you are aware, there are not at present in force between the United States and Portugal any treaty provisions concerning the rights, privileges and immunities of consular officers of both countries.
[Page 792]In the absence of applicable statutory and treaty provisions, the rights and privileges of Portuguese consular officers in the United States in connection with Portuguese vessels within the territorial waters of this country are determined by general principles of international law and comity.
This Government, while conceding on the one hand that, when one of its vessels visits the port of another country for the purposes of trade, it 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, has on the other hand, on a number of occasions, made clear its views to the effect that, by comity, matters of discipline and all things done on board which affect only the vessel or those belonging to her and do not involve the peace and dignity of the country or the tranquility of the port, should be left by the local government to be dealt with by the authorities of the nation to which the vessel belongs as the laws of that nation or the interests of its commerce may require.
In conclusion, I have the honor to state that since it has been the practice of this Government to determine the status of foreign consular officers in connection with shipping matters by treaty provisions, rather than by legislation, it is not deemed practicable to recommend the enactment of legislation similar to that of the Portuguese Government’s Decree of July 23, 1913, adverted to in your note under acknowledgment.
It may also be stated that neither in treaties to which the United States is a party, nor in legislation enacted by it, is specific provision made requiring the competent authorities to invite foreign consular officers on board vessels of their nationality within the territorial waters of the United States when such vessels are boarded by officers of governmental agencies in this country.
This matter has received this Department’s careful consideration and it has not been found practicable to include provisions of this nature in treaties to which the United States is a party. I may add that the Department has no doubt that upon the request of a Portuguese consular officer in this country the authorities concerned would have no objection to permitting such officer to be present whenever it is proposed by such authorities to board a Portuguese vessel in the waters of the United States. It would seem, moreover, that in the event the local authorities should board a Portuguese vessel the captain thereof would as a matter of course communicate with the nearest Portuguese consular officer, who would then be in a position to present his request to the authorities concerned.
Accept [etc.]