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they would not yield to the claim of a foreign consul to surrender that jurisdiction as a matter of right, unless granted by treaty stipulation, though, doubtless, in most cases, questions relating to the discipline of a crew on board a foreign vessel in any of our ports where there was a consular officer of the nation to which such vessel belonged, would be permitted to be adjusted by the consul without the interference of the local authorities.

CHAPTER XXV.

THE RECIPROCAL DUTIES OF CONSULAR OFFICERS AND

MASTERS OF AMERICAN VESSELS.

479. By an act of the Congress of the United Deposit States, approved February 28, 1803, it is in sub- ship's papers. stance directed that every master of an American vessel shall, on his arrival at a foreign port, deposit his register, sea letter, and Mediterranean passport, with the consular officer of the United States, if there be one at the port, under a penalty of five hundred dollars, which the consular officer may recover in his own name for the use of the United States, provided the penalty be sued for within two years, the limitation prescribed by the act of seventeen hundred and ninety.2

of

480. Whenever a clearance from the proper officer Delivery of of the port shall be produced to the consular officer, ship's papers. he shall deliver up all the ship's papers, provided the master shall have complied with the provisions of the above-mentioned act, and those of the twenty-eighth section of the act of August eighteen, eighteen hundred and fifty-six.

made before re

481. All consular officers are authorized and re- Payment of all quired, by this section, to retain in their possession all demands to be the papers of such ships and vessels, which shall be turn of papers. deposited with them as directed by law, till payment shall be made of all demands and wages on account of such ships and vessels.

1 Statutes at Large, vol. ii. p. 203.

2 Ibid. vol. i. p. 254, note.

Ship's papers 482. Where vessels merely touch at a foreign port not required to try the market, or are accidentally driven into such no formal en- port, and make no formal entry, it does not constitute

where there is

try.

An arrival de

fined.

Opinion of Su

preme Court as

to what constitutes an arrival.

Papers of a ves

an "arrival" within the meaning of the act, and the ship's papers cannot be required by the consul.1

483. As some doubt has arisen in regard to what constitutes an "arrival," the attention of consuls and commercial agents is particularly called to the following extract from an opinion of the Supreme Court of the United States:2

"Our view, then, is, that the term arrival, as used in this act, must be construed according to the subject-matter, the object of the provision, and the expressions in other sections of this act, and in other like acts; and that according to all these, a vessel putting into a foreign port to get information, and getting it without going at all to the upper harbor or wharfs, and not entering, or repairing, or breaking bulk, or discharging seamen, or being bound homewards, so as to take seamen, or needing the aid of the consul in any respect, but leaving the port in a few hours; not doing any of these, nor being required to, and duly entering and delivering her cargo at a neighboring port, where it had been sold, and there depositing her papers with the vice consul, cannot be said to have arrived at the first port, so as to come within the spirit of the penal provision as to depositing her papers with the consul. So far as regards precedents on this matter, the actual decisions of one court and the opinions of two Attorneys General are in favor of our conclusion." 13

484. Vessels accidentally driven into a port are sel driven into not required to deposit their papers with the consular officer, unless formal entry be afterwards made, or consular services required.

a port.

1 United States v. Shackford, Mason's Reports, vol. v. p. 445.

2 Howard, vol. ix. p. 372.

3 Opinions of the Attorneys General, vol. iv. p. 340; ibid. vol. v. p. 161;

Toler v. White, Ware, p. 280.

* Statutes at Large, vol. i. p. 167.

clearance.

485. It is stated in an opinion' of the Attorney Effect of the General, that the body of the second section of the production of a act of eighteen hundred and three, contemplates an arrival at a foreign port, with a clearance from the proper officer of the port. It is the production of the clearance to the consular officer which gives to the master the right to demand a return of the ship's papers, and imposes on the consul the duty of returning them.

3

retained.

486. The proviso to the section2 allows the con- When ship's sular officer, notwithstanding the clearance from the papers may be proper officer of the port, to detain the ship's papers until certain requirements of law shall have been complied with: which are the payment of the fees due the consular officer for his services; the payment to him of three months' pay, additional to wages due, for every discharged seaman who is designated on the certified list of the ship's company as a citizen of the United States; and the taking on board, at the request of the consular officer, of destitute mariners for transportation to the United States.*

of

consular officer

487. This right of the consular officer attaches to Limitation the register and other papers when they shall have the right of a been lawfully deposited with him; but the statute to a ship's padoes not compel the deposit for the purpose of giving pers. the right of detention.

sions.

488. Neither the section of the act which regards Interpretation discharged seamen, nor that which provides for dis- of legal provitressed seamen, nor the regulation as to consular fees, requires a deposit of the register and other papers, although the former makes it the duty of the master to exhibit to the consul a certified list of the ship's

1 Opinions of the Attorneys General, vol. vi. p. 168.
2 Statutes at Large, vol. ii. p. 203.

4 Ibid. vol. ii. p. 204.

Ibid. vol. xi. p. 63.

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Duty of a con

company. And the proviso above cited does not enlarge the scope of the other provisions of law as to the deposit of the papers; it only releases the consul from the duty, which would otherwise be imperative upon him, of returning the papers upon exhibition of the clearance alone.1

489. By the first section of the act of eighteen hunsular officer on dred and three, it is made the duty of the consular offishipmaster to cer, immediately on the arrival of an American vessel, deposit his should the master neglect to deliver his ship's papers,

the failure of a

ship's papers.

Papers to be

as he is directed by law, to inform him of the necessity of so doing, by showing him the law that requires it, and apprising him of the penalty he will incur by refusal or neglect. If he fail to comply, a certificate of the fact, under the consular seal, (see Form No. 37,) must be immediately sent to the Department of State, giving a description of the vessel, the port to which she belongs, where bound, and the usual residence of the master. In such a case, it is desirable that the consul should send some other evidence of the arrival and departure of the delinquent master with his vessel, besides that of his own certificate, as it has been held that such evidence of any fact is not sufficient, unless expressly or impliedly made so by statute.3

2

490. When the ship's papers are received, they safely kept and are to be kept together in as safe a place as possible, to guard against fire and other accidents; and the

a certificate to be given.

2

1 Opinions of the Attorneys General, vol. vi. p. 169.

Levy v. Burley, Sumner, vol. ii. p. 355; Waldron v. Cranch, Taunton Reports, vol. iii. p. 162; Church v. Hubbard, Cranch, vol. ii. p. 237; The United States v. Mitchell, Wash. C. R. vol. ii. p. 478.

* Since the delivery of this opinion provision has been made by the twenty-fourth section of the Diplomatic Consular act of August eigh teen, eighteen hundred and fifty-six, to give validity within the United States to the certificates of consular officers.

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