sequently serving for three years on an American vessel.1 For all purposes of American protection, it is provided that he shall be deemed an American citizen after the filing of his declaration of intention.2 This section does not apply to seamen serving on vessels in the coastwise trade.3

Mr. Justice Field in his decision in the celebrated case of In re Ross, in considering the status of an alien enlisting on an American ship, said:

"By such enlistment he becomes an American seaman-one of an American crew on board of an American vessel-and as such entitled to the protection and benefit of all the laws passed by Congress on behalf of American seamen and subject to all their obligations and liabilities. . . . He could then insist upon treatment as an American citizen and invoke for his protection all the power of the United States which could be called into exercise for the protection of seamen who were native born."

A similar rule, to the effect that the flag protects the ship and every person serving thereon, has been applied by claims commissions.5 Both courts of Alabama claims made awards to aliens serving on American vessels, and the second court even extended this protection to British subjects.

1 Richelieu (U. S.) v. Spain, Span. Tr. Cl. Comm., awarded Richelieu, a native of France who had declared his intention and had served twenty years on American merchant vessels, $5000 damages for his arbitrary arrest and imprisonment by Spanish authorities in Cuba. Van Dyne, Citizenship, 76. Release by Great Britain of August Piepenbrink, who had declared his intention and served four years on American vessel. Washington Post, Apr. 9, 1915.

2 Section 2174 has been held to confer citizenship for certain purposes only, particularly protection. 17 Op. Atty. Gen. 534; 21 Op. Atty. Gen. 412; 23 Op. Atty. Gen. 400, 403.

Act of June 9, 1874, 18 Stat. L. 64.

4140 U. S. 453, 472. See also the case of certain Chinese sailors on American vessels, Mr. Blaine, Sec'y of State, to Mr. Stevens, Feb. 25, 1892, For. Rel., 1892, 343; Moore's Dig. III, 797; Cons. Reg. 1896, § 200.

McCready (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 2536. Protocol provided for jurisdiction of claims of "citizens" of the U. S. v. Mexico. Umpire Thornton considered the service on an American vessel a presumption of citizenship, final, "unless. . . the contrary be expressly proved."

Cassidy v. U. S., No. 144, Moore's Arb. 2380, 4672. Supra, p. 463. The first court had excluded British subjects on the ground that they were not entitled to U. S. protection as against Great Britain. Worth v. U. S., No. 91, Moore's Arb. 2350.

The American citizenship which enabled the Consular Court to assume jurisdiction over a British subject in the Ross case was held by Secretary Bayard not to attach to a British subject permanently on land, although he had previously served on an American vessel.1 It is the flag which imports nationality for the purposes of protection.

The United States, in submitting the claim of Shields, a British subject serving on an American vessel, to the Chilean Claims Commission under the treaty of Aug. 7, 1892, endeavored to secure by an exchange of notes an understanding that Chile would not object to the claim on the ground of citizenship. The jurisdiction of the commission being limited to claims of "citizens," Shields' claim was dismissed on demurrer, but the Secretary of State continued his efforts and finally secured by agreement with the Chilean minister in Washington, an indemnity of $3500.2

3

A foreign seaman belonging to an American vessel who, on shore in Haiti, murdered a local policeman was held not entitled to the protection of the stipulations of United States treaties. Similarly, the failure to have declared his intention to become a citizen was held to deprive a foreigner belonging to an American vessel of the protection of the United States. It is somewhat difficult to reconcile these conclusions relating to the protection of foreign seamen on American vessels.

In the case of foreign-built vessels flying the American flag, which trade exclusively in foreign waters, the crews are generally made up almost entirely of foreigners, who have not acquired the character of American seamen, within the meaning of the law, by service on a registered vessel of the United States. When they ship at a foreign. port, extra wages may not be demanded on their account, nor are

1

1 Mr. Bayard, Sec'y of State, to Mr. Hubbard, Nov. 10, 1888, For. Rel., 1888, II, 1079.

Shields (U. S.) v. Chile, Aug. 7, 1892, Moore's Arb. 2557-2559; For. Rel., 1891, 217 et seq.; For. Rel., 1900, 66-71. Shields died in 1895, so that the U. S. actually, after 1895, prosecuted a British claim.

'Mr. Bayard, Sec'y of State, to Mr. Thompson, July 31, 1885, Moore's Dig. III, 796.

Mr. Uhl, Act'g Sec'y of State to Messrs. Goodrich, Deady and Goodrich, Apr. 10, 1894, For. Rel., 1895, I, 229, 231.

1

they entitled to relief as destitute American seamen under the laws providing for such relief. These seamen are not considered under the jurisdictional cognizance of the consul as to their contracts of shipment or discharge. To entitle them to the diplomatic protection of the United States against a foreign government either the injury complained against must have been sustained while actually serving under and receiving the protection of the American flag or else the seamen must have complied with one of the alternatives of § 2174 of the Revised Statutes.

It has already been remarked that the jurisdiction of American consular courts in countries in which the United States exercises extraterritorial privileges extends over all persons duly shipped and enrolled upon the articles of any vessel of the United States,2 whatever be the nationality of such persons.3

VESSELS

§ 207. Evidence of Nationality.

The flag of a vessel has come to be regarded as the outward symbol of its nationality, of which it is prima facie evidence. Each country determines for itself the conditions for the use of its flag upon its vessels, the United States rule being that vessels bona fide owned by citizens of the United States are entitled, when abroad, to carry the flag of the United States irrespective of the papers they may have on board.5 The ship's papers of a mere international character and value appear to be the sea-letter, passport, and bill of sale. The passport

1 Sec'y Evarts' Circular to consular officers, Feb. 18, 1880, For. Rel., 1880, 1. 2 As to what are "vessels of the United States," see Moore's Dig. II, § 324. For purposes of protection, the term is not confined to the provisions of R. S., § 4131.

Supra, p. 471. Consular Regulations, 1896, § 629. The British practice is somewhat different. Hall, Foreign powers and jurisdiction, 141. See also Moore's Dig. II, § 261, and H. Doc. 326, 59th Cong., 2nd sess., 206.

Castillon de Tramont, P., De la nationalité des navires, Montauban, Forestié, 1907; Moore's Dig. II, § 321, quoting Calvo, I, §§ 426-428. See also The Vrow Elizabeth (1803), 5 C. Rob. 4; The William Bagaley (1866), 5 Wall. 377, 410; Art. 57 of the Declaration of London.

'Mr. Bayard, Sec'y of State, to Mr. Tree, Dec. 19, 1887, For. Rel., 1888, I, 28. 6 For a full discussion of the maritime passport and the difference between a passport and sea-letter see Moore's Dig. II, § 325.

or the sea-letter is the formal voucher of the ship's national character. Lord Stowell said that "a bill of sale is the proper title to which the maritime courts of all countries would look." 1

The distinction made in municipal law between registered and unregistered vessels,2 i. e., American-built and foreign-built vessels, is not made in international law, and both classes, if owned by American citizens, are equally entitled to American protection. This has been reiterated many times by secretaries of State, secretaries of the Treasury and Attorneys General.3 The distinction between the various classes of vessels under the navigation laws of the United States is important only for commercial purposes, registered and enrolled vessels enjoying certain special privileges. The various documents issued to such vessels, such as the register, enrollment or license are not required by international law and are prima facie evidence only of ownership and therefore of the nationality of the vessel.5

4

The internationally conclusive character of a certificate of American registry came up for discussion in the celebrated Virginius case. This vessel had fraudulently obtained American registry by the fact that the American citizen in whose name she was registered made a

1 The Sisters, 5 Rob. 155.

As to the vessels entitled to registration see R. S., § 4132, as amended by the Act of August 24, 1912, 37 Stat. L. 562, the Act of May 10, 1892, 27 Stat. L. 27, and the Act of August 18, 1914, Public No. 175, 63rd Cong., 2nd sess., 698. Sections 4133 and 4134, R. S., have been repealed. The statutory provisions governing registry and recording are to be found in R. S. § 4131 et seq., 7 Fed. Stat. Ann., p. 3 et seq. The general effects of registry and the position of foreign-built but Americanowned vessels is discussed in Moore's Dig. II, § 322.

'Moore's Dig. II, § 323.

As to the privileges of registered and the disabilities of unregistered vessels, see Moore's Dig. II, 1031-1033.

U. S. v. Armistad, 15 Peters, 518; 6 Op. Atty. Gen. 649.

* Moore's Dig. II, 895 et seq., 967, 980–893 and Wharton's Dig. III, § 327, pp. 147– 159, where the case is fully discussed. Attorney General Williams' opinion in 14 Op. Atty. Gen. 340 is supported by Wharton, III, § 409, who places certificates of naturalization and certificates of registration of a vessel on the same footing, namely, that their validity cannot be impeached by any foreign power, except by application to the United States, which is the sole judge of their validity. It is of course true that a foreign power which acts on its assumption that an American document has been fraudulently obtained or displayed, by a direct exercise of jurisdiction, assumes a grave responsibility.

false oath as to ownership, which in fact was vested in certain Cuban residents of New York. She carried a hostile expedition to Cuba, and while flying the American flag, was seized on the high seas by a Spanish war-vessel. The Attorney General held that notwithstanding her false registry, she was exempt from interference on the high seas by any foreign power. Spain had seized the vessel in self-defense, and the United States in effect admitted the right of Spain to question the validity of her registry by undertaking to dispense with any salute to the American flag if it were proved that she sailed under a false register and was not legally entitled to fly the American flag.1 The better opinion, therefore, would seem to be that a register or any other document of nationality or even the flag is only a prima facie and not an internationally conclusive evidence of nationality, although for belligerent purposes, "subject to the provisions respecting transfer to another flag, the neutral or enemy character of a vessel is determined by the flag which she is entitled to fly." 3 For a foreign power in time of peace to arrest on the high seas a vessel carrying the United States flag involves a grave responsibility, and in fact practically the only circumstance under which such arrest has been excused is where there was probable cause to believe that the flag had been assumed for piratical purposes. The question of proving the nationality of vessels in the absence of papers has frequently been before the United States courts in cases of piracy.5

4

§ 208. American Ownership the Test of Title to Protection.

The employment of an American vessel in the internal trade of a

1 This implied admission would probably not have been made to any third country. It will be recalled that the Virginius was owned by Cubans, Spanish subjects. 2 Woolsey, International law, § 214, quoted in Moore's Dig. II, 981. Article XI of the treaty of July 3, 1902 between the U. S. and Spain, however, provides that "All vessels sailing under the flag of the U. S. and furnished with such papers as their laws require, shall be regarded in Spain as U. S. vessels," and the reciprocal provision applies to Spanish vessels in the U. S.

3 Article 57 of the Declaration of London. The rules respecting transfer of flag have been referred to, supra, p. 255.

"Wharton's Dig. III, § 408.

E. g., U. S. v. Jones (1813), 3 Wash. C. C. 209. See also decisions under the Mutiny Act of 1835 and under the revenue laws and recording acts.