PORTUGUESE REGULATIONS REGARDING JURISDICTION ON BOARD FOREIGN SHIPS IN PORTUGUESE WATERS AND REQUEST FOR RECIPROCAL ACTION BY THE UNITED STATES 853.863/1 The Portuguese Minister (Alte) to the Secretary of State BAR HARBOR, MAINE, July 27, 1928. SIR: The Portuguese Government Decree No. 54, of July 23, 1913, enacts that all matters pertaining to the internal discipline of foreign merchant vessels in Portuguese waters shall be 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. The same Decree further states that when the local authority has to take legal action on board a foreign vessel in Portuguese waters the resident consular officer of the country to which the ship belongs must, in every case, be advised, with due anticipation, of the date and hour at which such action will be taken as well as of the nature of the proceedings, in order that he may be present or send a representative. In the official report it must be stated that the consular officer was invited to attend and whether he was or not present during all or part of the proceedings. In any case, whether or not the consular officer attends, the proceedings shall take place. The above mentioned Decree states that these provisions shall apply to the vessels of all nations that reciprocally grant the same treatment to Portuguese merchant vessels in their territorial waters. In these circumstances, I would esteem it a favour if you would kindly inform me whether the Portuguese consular officers are invited to be present when the American authorities take legal action on board Portuguese merchant vessels in American waters. Accept [etc.] 853.863/3 ALTE The Acting Secretary of State to the Portuguese Minister (Alte) WASHINGTON, September 5, 1928. 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 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. 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.] J. REUBEN CLARK, Jr. 853.863/4 The Portuguese Minister (Alte) to the Acting Secretary of State BAR HARBOR, MAINE, September 8, 1928. [Received September 10.] SIR: With reference to the subject matter of your note of the 5th instant, concerning the treatment of merchant vessels of one power in the territorial waters of the other, I have the honour to suggest that, as the Commercial Agreement between Portugal and the United States of America of June 28, 1910,28 grants to both countries the most favoured treatment in respect to their citizens, merchandise and ships, this Agreement may be construed as extending to Portuguese and American ships in territorial waters the treatment granted to those of other nations through the appropriate treaty provisions agreed upon with them. This understanding would, I believe, perhaps facilitate the application to American ships in Portuguese territorial waters of the provisions of the Decree of July 23, 1913, the substance of which I had the honour to embody in my note of July 27, 1928. I would, therefore, esteem it a favour if you would kindly let me know whether the Department of State agrees with this interpretation of the Commercial Agreement between the two countries, in order that I may enlighten on this point my Government in forwarding to them a copy of your note of the 5th instant. I profit [etc.] 853.863/5 ALTE The Secretary of State to the Portuguese Minister (Alte) WASHINGTON, September 26, 1928. SIR: I have the honor to acknowledge the receipt of your note of September 8, 1928, in which, in further relation to the decree of the Portuguese Government of July 23, 1913, you ask whether this Government interprets the most-favored-nation treatment stipulated in the Commercial Agreement between the United States and Portugal of June 28, 1910, as extending to vessels of the one country in the territorial waters of the other the treatment granted by the latter country to vessels of other nations through treaty provisions agreed upon with them. You will recall that the negotiations which resulted in the Commercial Agreement of 1910 were conducted in view of a provision in the tariff law of 1909 of the United States 20 authorizing the ex 29 "By exchange of notes; Foreign Relations, 1910, pp. 828 ff. 20 'Aug. 5, 1909; 36 Stat. 11. tension to any foreign country, under certain conditions, of the benefit of the minimum tariff of the United States when it was shown that such foreign country enforced no import or export conditions or restrictions which unduly discriminated against the United States or the importation or sale of products of the United States, or paid no export bounty or imposed no export duty or prohibition which unduly discriminated against the United States or its products.** In view of the relationship of the Agreement of 1910 to the Tariff Act, it would appear to be clear that the most-favored-nation treatment stipulated in the Agreement related to charges on commerce. So far as this Department is informed the Agreement has not been considered to apply to consular privileges with respect to matters pertaining to the internal discipline of vessels, which is the subject to which the Portuguese decree of July 23, 1913, and your note of July 27, 1928, relate. The Department takes the view that the Agreement should not be invoked with a view to its application to consular privileges with respect to vessels. Accept [etc.] 853.863/9 FRANK B. KELLOGG Memorandum by the Assistant Secretary of State (Castle) [WASHINGTON,] October 12, 1928. The Portuguese Minister came to see the Secretary yesterday, bringing with him the attached note.1 The Secretary looked it through and also looked at the text of the commercial agreement between the United States and Portugal. He was inclined to feel that the interpretation of that agreement, as set forth in our note of September 26th, was perhaps unduly narrow. He felt that there might be something in the Portuguese plea that it could properly refer to ships as well as to merchandise. The Minister pointed out that, if it could be so interpreted, the advantage would be entirely on our side, since Portugal has no ships which come to this country. The Secretary asked the Minister to leave the note with him and told him that, if on reconsideration, it were found possible to take a different attitude, we would substitute another note and that, if it were necessary to maintain the stand taken here, we would write a covering letter of explanation. 30 Sec. 2, 36 Stat. 82. W[ILLIAM] R. C[ASTLE, Jr.] "The Department's note of September 26, supra. |