390d.1141 Ab 8/3
The Consul at Beirut (Knabenshue) to the Secretary of State
[Received March 1.]
Sir: I have the honor to acknowledge the receipt of the Department’s instruction of October 15, 1923 (File No. 390d.1141 Ab 8/–),26 with reference to a suit brought in the local courts in Syria against Mr. Joe Abraham, an American citizen now residing in the United States. I am directed to make inquiry concerning this matter and to report thereon to the Department.
It appears from the dossier of this case that one Michel Zoghzoghy, a local subject, has brought action in the local Syrian courts against Mr. Joe Abraham, an American citizen, for alleged breach of contract. The question at issue which is of chief interest to the United States Government is, first, whether an American citizen residing in the United States can be prosecuted in the local Syrian courts for an alleged breach of contract, irrespective of whether the said breach took place in Syria, by correspondence, or in the United States; and, secondly, whether service upon the American citizen in question was effected legally in accordance with treaties, custom or usage.
In order that the situation may be made clear, it is well to review briefly the entire question of jurisdiction under the Capitulations in Syria. There are three courts in Syria which have, under varying conditions, jurisdiction in cases wherein an American citizen is either the defendant or the plaintiff:
First.—a) The American Consular Court in criminal cases when the defendant is an American citizen, irrespective of the nationality of the complainant.
b) The American Consular Court in civil cases when both parties to the suit are American citizens.
c) The American Consular Court in civil cases between American citizens and the citizens or subjects of other Powers enjoying capitulatory privileges, when the American is the defendant.
[Page 750]Second.—a) The Consular Court of another capitulatory Power in criminal cases wherein the defendant is a subject of that Power and the complainant an American citizen.
b) The Consular Court of another capitulatory Power in civil cases wherein the defendant is a subject of that Power and the complainant an American citizen.
Third.—a) Local Tribunal (the Mixed Commercial Court) in civil cases (not arising out of landed property interests) wherein one of the parties is an American citizen and the other a local subject. Cases so heard in this Court are attended by a Dragoman of this Consulate General and two American citizens appointed by the Consulate General sit as associates with the native judges. Judgments rendered in this Court against American citizens must be referred to the Consulate General for execution. If, in the opinion of the Dragoman and the American associates, justice has not been rendered in accordance with the applicable law, the Dragoman refuses to sign the judgment and it is consequently not executed by the Consulate General, in which case a new hearing may be demanded.
b) The local tribunals, without the assistance of American associates or the presence of a dragoman, in cases arising out of landed property interests, in accordance with the Turkish law of 1867, accepted by the United States on October 29, 1874.27
c) Local tribunals, in criminal cases wherein the defendant is a local subject and the complainant an American. These cases are attended by a dragoman of the Consulate General.
It should be noted that in all cases in the local tribunals attended by the Dragoman of the Consulate General, the judgment must be signed by the Dragoman to make it effective. If the Dragoman refuses to sign the judgment a new case may be commenced. If the native Judge insists upon the execution of the judgment, even though the Dragoman refused to sign it, the case must be settled administratively between the French High Commission and the Consulate General.
All services in connection with cases in any of the above mentioned courts should be made upon American citizens through the intermediary of the American Consulate General.
It is my opinion that the case between Mr. Zoghzoghy and Mr. Abraham, being, as it is, an alleged breach of contract not involving real estate, should come properly in the Mixed Commercial Tribunal, and service could only be made upon Mr. Abraham through this Consulate General, irrespective of whether he resides in Syria or the United States.
Mr. Abraham has given a power-of-attorney to Mr. Kaleel Muallem to act for him and defend his interests before the local tribunal. The case has been set for hearing on February 11, 1924. It appears that the plaintiff in his action has caused the defendant’s property [Page 751] in Syria to be attached. Inasmuch as an attachment in a case of this kind constitutes more or less an act of execution of a judgment, which can only be effected against American citizens by the Consulate General, and inasmuch as the Consulate General was not notified by the Court in this regard, Mr. Abraham’s lawyer and the Dragoman of this Consulate General will protest against the judgment at the next hearing of the case. If their protest is unsuccessful, the matter will be taken up administratively between the Consulate General and the French High Commission.
There is one more point in connection with this case and any similar cases which will be of interest to the Department. By despatch No. 1120 of August 18, 1923,28 this office transmitted to the Department a summons for service upon Salim Ibrahim Nihra, the name by which Mr. Joe Abraham is known in Syria. In its reply of September 24, 1923 (File No. 084.90d/orig.)29 the Department stated:
“In reply you are informed that the papers mentioned have been sent to the person to whom they are addressed with the statement that the Department is not in any sense undertaking to make service of the documents but that it is merely, without incurring any responsibility in connection with the delivery thereof, bringing the papers to his attention as of possible interest to him.”
I should like to call the Department’s attention to the fact that summonses issued by the Consular Courts in Syria against local subjects who are required to appear before the Consular Court must be served through the intermediary of the local Government. Reciprocally, summonses, issued by the local courts for service upon American citizens whose attendance is required before the local courts, must be served through the intermediary of the Consulate General. That being so, it would seem incumbent upon the Department to cause, on behalf of the Consulate General, the legal service of summonses transmitted to the Department for service upon American citizens residing in the United States. It is suggested that the proper procedure would probably be through the Department of Justice. I should be glad to have the Department’s reconsidered opinion in this regard.
I have [etc.]