that, so far, it had seemed "to work well." The Department of State received the report with "great surprise," and, in order to mark the President's "displeasure" with the consul's "extraordinary course" in "entering into an arrangement with a rebel chief so inconsistent with a proper respect for the constitutional authorities of Mexico," by whom the consul had been "officially recognized," revoked the consul's commission. Mr. F. W. Seward, Assist. Sec. of State, to Mr. Hantus, "late United The consul of the United States at Rome, by appearing in the field with the Pontifical army; by remaining while the army was under fire, and assisting a wounded combatant; by getting slightly wounded himself; and by taking up a musket in self-defense and driving away an assailant," did indeed become mixed up' in the affair, and not as an idle spectator but in the precise character of a belligerent." For these reasons his conduct was "entirely disapproved," and it was left to depend upon his "better conduct hereafter," and to a certain extent on circumstances "not yet fully understood," whether the Department of State would be content " to leave the case with this reprimand." Mr. Seward, Sec. of State, to Mr. Cushman, consul at Rome, No. 27, Jan. 21, 1868, 46 MS. Desp. to Consuls, 516. VIII. SHIPPING AND SEAMEN. 1. CONSULAR POWERS. $ 725. Exclusive jurisdiction over disputes between masters, officers, and crews of the vessels of their respective countries is conferred on consuls by various treaties between the United States and other powers. The right to reclaim deserting seamen also is often so conferred. By other treaties consuls are empowered to adjust damages suffered at sea and in matters of wreck and salvage. Consular Regulations of the United States (1896), §§ 88, 89, 90, p. 34–35. The right given to seamen by Revised Statutes, section 4567, to lay their complaints before the American consul in foreign ports, is one which a court of admiralty will carefully protect. Morris v. Cornell, 1 Sprague, 62. The advice of a consul in a foreign port gives to the master of a vessel no justification for an illegal act. Wilson v. The Mary, Gilpin, 31. Consuls have no authority to order the sale of a ship in a foreign port, either on complaint of the crew or otherwise. If, on such sale, the consul retain the money for the payment of seamen's wages, the United States are not liable to the owners for the money thus illegally received by the consul. Cushing, At. Gen., 1854, 6 Op. 617. Under the 28th section of the act of August 18, 1856, consuls have the authority to enforce the payment of wages in certain cases and consular fees, but not a general power of deciding upon all manner of disputed claims and demands against United States vessels. By the act of 1803 the consul is made the party to bring suit for penalties incurred under it, but not the judge to decide it. He cannot demand the penalty, decree it to be due, and enforce its payment by detaining the ship's papers. Black, At. Gen., 1859, 9 Op. 384. Article VIII. of the consular convention with France of Feb. 23," 1853, provides that "the local authorities shall not, on any pretext, interfere" in differences between masters and crews of vessels of the contracting parties, but that such persons "shall be arrested at the sole request of the consuls, addressed in writing to the local authority," etc. By the act of June 11, 1864, 13 Stat. 121, R. S. § § 4079-4081, for the execution of treaties relating to the jurisdiction of consuls over seamen, it is provided that the application for arrest may be made "to any court of record of the United States, or any judge thereof, or to any commissioner appointed under the laws of the United States," and that the warrant of arrest shall be directed to the United States marshal. Under these provisions an application to the local chief of police is irregular and an arrest made by such chief of police is unauthorized. But where a seaman so arrested is brought before a United States district court on habeas corpus, it is the duty of the court to examine the case and commit the defendant to prison if he comes within the terms of the treaty, and the formal irregularity in the arrest is obviated by the examination. Dallemagne v. Moisan (1905), 197 U. S. 169. Neither Art. VIII. of the consular convention with France of Feb. 23, 1853, nor the act of June 11, 1864, 13 Stat. 121, R. S. §§ 40794081, limits the time during which an arrested seaman may be held in custody to the stay of his ship in port. The statute limits the time to two months and the seaman, when properly in custody, may be held during that time, whether the ship departs or not. Dallemagne v. Moisan (1905), 197 U. S. 169. H. Doc. 551-vol 5-9 No consul, pursuant to our law or regulations, has the right to grant a clearance to any American vessel, even if his post is at a port conquered and possessed by the enemy of the country from whose government he may have received his exequatur. It is the exclusive province of the belligerent authority for the time being-civil, military, or naval-to grant such clearances, and the consul, as is required in time of peace, should not deliver the vessel's papers until the clearance shall have been presented to him by the master. The consul's course is not to be governed or influenced by the components of the cargo of the vessel. If these, according to the existing authority, may lawfully be exported, the consul can not properly gainsay that opinion." Mr. Evarts, Sec. of State, to Mr. Christiancy, min. to Peru, Mar. 2, 1880, message of Jan. 26 and 27, 1882, relating to the War in South America and Attempts to bring about a Peace, p. 331. This instruction is recorded in MS. Inst. Peru, XVI. 437. "You are instructed to make a courteous application to the government of Venezuela to permit by some general regulation the consuls of the United States to visit vessels of their nationality in their official capacity without a special permit from the local authorities." Mr. Bayard, Sec. of State, to Mr. Scott, min. to Venezuela, No. 156, March 22, 1888, For. Rel. 1888, II. 1640-1641. Under the act of February 28, 1803, § 2, the master of an American vessel which touches at a foreign port to obtain advices, but does not enter nor do any business there, is not bound to deposit the register with the consul of the United States; such presence in port is not an "arrival" within the meaning of that act. Harrison . Vose, 9 Howard, 372; Mason, At. Gen., 1845, 4 Op. 390; Masters of American vessels are subject to prosecution in the name of the consul for omission to deposit with him the papers according to law, but not to indictment. (2 Stat. 203, § 2; Rev. Stat. § 4309.) Cushing, At. Gen., 1855, 7 Op. 395. The master of an American vessel sailing to or between ports in the British North American provinces is required, on arriving at any such port, to deposit his ship's papers with the American consul. Bates, At. Gen., 1866, 11 Op. 72. Section 1720, Revised Statutes, does not change or affect the duties of masters of American vessels running regularly by weekly or monthly trips or otherwise, to or between foreign ports, as imposed by act of 1803. (2 Stat. L., 203; Rev. Stat., § 4309.) Bates, At. Gen., 1866, 11 Op. 72. If an American vessel is obliged by the law or usage prevailing at a foreign port to effect an entry, and she does enter conformably to the local law or usage, her coming to such foreign port amounts to an arrival within the meaning of section 2 of the act of 1803 (2 Stat. L., 203; Rev. Stat., § 4309), independently of any ulterior destination of the vessel, or the time she may remain or intend to remain at such port, or the particular business she may transact there. Bates, At. Gen., 1866, 11 Op. 72. The masters of fishing vessels, enrolled but not registered, are not required by sections 4309 and 4310 of the Revised Statutes to deposit their ships' papers with the United States consul when they arrive at a foreign port where there is such a consular officer. Harmon, At. Gen., 1895, 21 Op. 190. A consul of the United States in a foreign port has no power to retain the papers of vessels which he may suspect are destined for the slave trade. Black, At. Gen., 1860, 9 Op. 426. Coal barges, which are rough, square-cornered boxes, from 165 to 180 feet long, about 26 feet wide, and from 8 to 10 feet deep; which have no propelling power, no master or crew, nor any tackle, apparel, or furniture, nor any name, being generally designated by number; and which neither have a license, nor can be enrolled or licensed under any law of the United States, are not "ships" within the meaning of admiralty rule No. 20, and can not be made the subject of a possessory suit thereunder. Wood v. Two Barges (1891), 46 Fed. Rep. 204. The court, in the course of its opinion, said: "That they can be held, under proper circumstances, within the admiralty jurisdiction in cases of certain maritime contracts-towage, for instance-in salvage cases, or in connection with a maritime tort, is not disputed; but, as for that matter, other articles of property under proper circumstances may be the subject of a maritime contract, or be subject to salvage services, and thus brought within the admiralty jurisdiction; and many things, not pretending to be ships, even constructions on land, may be brought within the admiralty jurisdiction in connection with maritime torts." A steam dredge, without motive power, engaged in deepening navigable waters, and capable of being towed from place to place, is a "vessel," within Revised Statutes, sec. 3, and is within the admiralty jurisdiction, and the persons employed on her and her scows in such work are seamen," within Rev. Stat. sec. 4612, and are enti tled to a maritime lien for their services. Saylor r. Taylor, 77 Fed. Rep. 476, 23 C. C. A. 343. 2. SHIPMENT AND DISCHARGE OF SEAMEN. § 726. An American consul could not, without exercising a jurisdiction not conferred upon him by treaty or by the statutes of the United States, refuse to ship Dutch seamen on American vessels in Netherlands ports on the ground that they had not complied with the laws of their own country with regard to the performance of military duty. Mr. Bayard, Sec. of State, to Mr. de Weckherlin, Dutch min., Feb. 6, 1888, The American consul at Montevideo having requested instructions as to certain British subjects, seamen on board the American whaler Sunbeam, who asked to be discharged because war had broken out between the United States and Spain, the Department of State replied: “War no ground for discharging seamen peaceful vessel." Mr. Cridler, Third Assist. Sec. of State, to Mr. Swalm, consul at Montevideo, tel., June 16, 1898, 162 MS. Inst. Consuls, 355. A seaman is not to be discharged for slight or venial offenses, nor for a single offense, unless of a very aggravated character. If he is charged with insubordination, it should satisfactorily appear that he is incorrigibly disobedient, and that he persists in such conduct. Hence it was advised, where a seaman refused one day to work on account of sickness, which proved to be intoxication, and again refused to work the next day, when he was unable to do so from illness consequent upon his intoxication, that the offenses charged "would hardly have constituted sufficient grounds for his discharge without his consent." Griggs, Atty. Gen., Sept. 20, 1898, 22 Op. 212, 213, citing The Superior, 22 Fed. Rep. 927; The T. F. Oakes, 36 Fed. Rep. 442. In this case the seaman was discharged by the consul on the joint request of the master and himself, and the consul's action was held to have been justified, apparently on the ground that he apprehended that the seaman, if he returned to the vessel, would be subjected to cruel treatment, "owing to the evident ill will displayed by the master toward the seaman." |