Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 1, 1879
No. 393.
Mr. Christiancy to Mr. Evarts.
Lima, Peru, May 20, 1879. (Received June 16.)
Sir: I have the honor to inclose to you the copies of two letters of Hon. Thomas A. Osborn, of the 2d and 26th April, in reference to the use of the American flag by foreign-built ships, and a copy of my answer to same of this date, so far as the case of the Itata is involved.
I have, &c.,
Mr. Osborn to Mr. Gibbs.
Santiago, Chili, April 2, 1879.
Sir: I have to acknowledge the receipt of your note of the 15th ultimo, referring to your action in the matter of the steamship Itata.
It appears that you directed the consul at Callao to notify the captain of the Itata that he had no right to use the American flag, and that you advised the consul against giving such vessel a clearance or any other document.
[Page 878]I find that I am unable to agree with you fully in your understanding of the law, and I have therefore deemed it advisable to communicate with the State Department on the subject and solicit the advice of the honorable Secretary. I am informed by those competent to know that it has been the custom for foreign-built ships wholly owned by American citizens to carry the American flag, and that their right to do so has been generally recognized by our public officers on this coast.
To avoid any clashing, however, I have directed that only vessels duly registered under the law shall be cleared from Valparaiso to Peruvian ports by our consul, until he is further advised.
Very respectfully, &c.,
Hon. Richard Gibbs,
United States Minister, Peru.
Mr. Osborn to Mr. Christiancy.
Santiago, Chili, April 26, 1879.
Sir: I see published in the Lima papers what purports to be a note addressed by Mr. Gibbs to the foreign minister in Lima, under date of the 7th instant, which I fear may result in seriously imperiling the property interests of American citizens in foreign-built ships on this coast.
It is unquestionably true that no law of the United States directly authorizes this class of vessels to carry the American flag. Nor is there any statute, so far as I have observed, directly conferring this privilege upon any class of vessels whatever; but that the Government recognizes the right of American citizens to purchase foreign-built ships, and acknowledges its obligation to protect them in their property thus acquired, is an undoubted fact.
I am credibly informed that there are many vessels of this character, owned by American citizens, now doing business on this coast. Some of them have been so engaged many years, and have been recognized by our consular officers as American vessels. The consul at Valparaiso informs me that only yesterday a vessel so owned came into port flying the American flag, having been dispatched in due form by our consul at Lambayeque, Peru. Her papers show that she was purchased by an American citizen and the bill of sale recorded in the consulate at Lambayeque, as is provided in sections 220 and 221 of Consular Regulations.
I am not prepared to believe that the State Department intended to be understood as saying that our citizens might purchase foreign-built ships, but that they should not sail them; hence, I cannot agree with Mr. Gibbs in his understanding of section 226 of Consular Regulations. A vessel without a country, to me, seems an anomaly. It would be in quite as pitiable a condition as was the man without a country, of whom we have read. To fully guard against fraud in these transfers, however, it seems to me that some more stringent rules concerning them should be adopted. I should be pleased to exchange views with you on this subject.
Permit me to call your attention to the opinion of Mr. Cushing, referred to on page 6 of the Digest of Opinions and Leading Cases on International Law.
I am, &c.,
Hon. I. P. Christiancy,
United States Minister, Peru.
Mr. Christiancy to Mr. Osborn.
Lima, Peru, May 19, 1879.
Sir: Your note of the 2d ultimo to my predecessor and that of the 26th ultimo to me have been received.
I did not answer the first note, as it was rather a question between you and Mr. Gibbs which would soon be decided by the State Department, Mr. Gibbs having written to the department fully on the subject.
I expected to have had an answer to that dispatch by the last mail, but no mail came from New York this week.
[Page 879]While awaiting the reply of the department I will only take occasion to say that I am inclined to agree with the decision arrived at by Mr. Gibbs in the case of the Itata, but I think I should not have placed the decision wholly, at least, upon the same ground upon which he rested it.
I am prepared to admit, or at least do not for the present dispute, that there may be cases in which a foreign-built ship, purchased and owned by an American citizen, especially if officered and run by American citizens, might be entitled to the protection of the American flag outside of American waters.
It is not necessary to controvert your statement “that the government recognizes the right of American citizens to purchase foreign-built ships and acknowledges its obligation to protect them in their property thus acquired;” but certainly no mere form of transfer under circumstances which show that transfer to be merely formal and colorable, for the purpose of fraudulently obtaining the protection of our flag, can create any such obligation on the part of the United States, nor entitle the parties making use of so palpable a fraud to claim protection, especially when the circumstances are such that to grant the use of our flag virtually to one of the belligerents might justly be complained of by the other belligerent as a breach of that good faith which the duties and advantages of neutrality impose upon the United States.
If our government could be bound by the necromancy of any such mere forms, its good faith as a neutral and its peaceful relations might at any moment be impaired or endangered at the will of any adventurer or any belligerent who might choose, for his own private interest, to avail himself of the like formal transfer. In such a case such mere formal transfer is, in my opinion, not even prima-facie evidence of a real and bona-fide sale; but in the absence of express law, the onus of proving the good faith of the transfer should, I think, rest, upon the pretended purchaser, and he must show the fact satisfactorily before he can claim any right to the protection of the American flag.
Perhaps a certificate of a collector of customs as to citizenship and transfer might give a prima-facie right. But this we need not discuss, as clearly there was no such certificate here; and all the circumstances connected with the transfer, so far as I have any information, tend to show it to have been a palpable trick, a mere colorable sale.
I await the Secretary’s opinion upon the dispatch of Mr. Gibbs, and you will doubtless receive a communication upon the same matter.
I am, &c.
Hon. Thomas A. Osborn,
Envoy Extraordinary and Minister Plenipotentiary,
Santiago, Chili.