For your instruction and guidance a part of the correspondence on this
subject between this Department and the Treasury Department is hereto
appended.
The conclusions reached by this Department, and concurred in by the Treasury
Department (as more fully appears in the appended letters), are as follows:
Your attention is called to that part of the appended letter of the Secretary
of the Treasury which suggests that it would be advisable for returned
seamen to bear a certificate from the forwarding consular officer to be
exhibited to the examining officers of the home port.
[Inclosure 1.]
Mr. Bayard to Mr.
Fairchild.
Department of State,
Washington, February 11,
1888.
Sir: I have the honor to acknowledge the
receipt of your letter of the 16th of December, 1887, in which you state
the reasons why Caspar Klypool, a foreigner who had shipped on an
American vessel in the port of San Francisco “for the run” to Liverpool,
and been relieved and given passage to the United States as a destitute
American seaman, by our consul at the latter port, was refused
admittance in the port of New York, and sent back to Liverpool.
A copy of your letter was sent to the consul at Liverpool, and has
elicited from him an inquiry as to his duty hereafter when seamen of
foreign nationality come upon the consulate in a destitute condition
from American vessels on which they have shipped in an American port for
a voyage or period that ends at Liverpool.
In view of the fact that this is a question of great practical
importance, upon which perfect harmony of opinion and action should
exist in the two Departments, I have the honor to request an interchange
of views upon it.
As an expression of the conclusion reached by this Department after some
consideration, I beg to submit the proposition that a seaman of foreign
nationality who ships on an American vessel in a port of the United
States, with an intent to attach himself to the American merchant
service for an indefinite, though not necessarily long period, becomes a
seaman of the United States, within the meaning of section 4577 of the
Revised Statutes, and retains that character with its privileges, until
divested of it by taking service on a foreign vessel, or by abandonment
of his calling.
In the leading case of Matthews vs. Offley, 3
Sumn., 115, Judge Story says, “that where a foreign seaman has once
acquired a domicile in the United States, and is engaged in our merchant
service, and retains * * * the habits of that service, and upon every
discharge from one ship still has the animus
revertendi to that service and domicile, he must be treated as
intending to retain his acquired character of an American seaman and his
acquired American domicile.
“Some overt act on his own part, such as engaging in some foreign
service, or resuming his original native character, or disowning his
American character and domicile, seems to me indispensable to rebut the
presumption that he still attaches himself to the American service.”
A sailor is a citizen of the world, and can acquire in his vagrant career
only that sort of domicile which the nationality of the ship which is
his place of abode gives him.
More than half of our merchant seamen, this Department is informed, are
foreigners, and during the last half century they have been deemed, when
shipping in our ports and upon our vessels, as “mariners and seamen of
the United States,” and entitled as such to the protection of our
laws.
So generally are they regarded in the character they have assumed that
almost invariably they are entered on the crew lists as of the United
States.
The Consular Regulations of 1855 (par. 122), following a decision of
Judge Minot, Fifth Auditor of the Treasury during that year, state “that
* * * all foreigners regularly shipped in American vessels at any port
in the United States are to be regarded as American seamen and citizens,
within the provisions” of the statutes relative to discharge, relief,
and transportation to the United States. The successive editions of the
Consular Regulations from that time to the present, including the
edition now in press, have contained substantially the same provisions
(see paragraph 199 of the edition of 1881). During that entire period
our consular officers have acted in conformity with these instructions,
discharging such seamen as were entitled to discharge, relieving the
necessities of those found destitute, and furnishing passages
[Page 1657]
to the United States to such
as were unable, from any cause, to reship, and were desirous of
returning to the United States for that purpose.
The fact of shipment in a port of the United States has been deemed
presumptive evidence of attachment to the American service, and the
application for transportation to the United States, in case of
inability to reship on an American vessel in the port of discharge, has
been accepted as sufficient proof of intent to continue in the American
service to entitle the foreigner to the benefit of our laws.
There may be individual cases where it is apparent to the consul that the
seaman is in the habit, when out of employment, of shipping in any
vessel the master of which will engage him, wholly indifferent as to the
place or country to which she belongs, or as to the part of the world in
which he may find himself when the contract is at an end; but such cases
are exceptional, and do not affect the general rule, only suspending its
application in the particular instances.
It is universally conceded that a citizen seaman, when unable by reason
of sickness, hurt, or injury, to reship after his discharge in a foreign
port, retains his character and rights as an American seaman until he is
cured, or from lapse of time or other circumstances, his abandonment of
that character is presumed.
It is the opinion of this Department, adopting the language of the
forthcoming edition of the Consular Regulations, that “A foreign seaman,
having shipped on an American vessel at a port of the United States, is
entitled to extra wages on his discharge in a foreign port, in all cases
where a seaman who is a citizen would be so entitled, and on such
discharge he may be relieved and returned to the United States.”
* * * * * * *
In reference to the act of August 3, 1882, for the exclusion of criminal
and pauper immigrants, I beg, in closing, to say that this statute has
been heretofore understood in this Department to be confined in its
application to immigrants, persons who have come to stay, not to
seafaring men, who come only to reship and go to sea again; not even
when the seaman is temporarily unable to reship. This view derives some
support, by analogy, from the opinion of the Attorney-General, rendered
to your Department December 26, 1886, that Chinese servants who come to
this country on a visit with their employers are not within the
provisions of the Chinese immigration act, because they do not come to
stay, and can not be considered immigrants.
I have the honor to be, sir, your obedient servant,
