A-34377, DECEMBER 26, 1930, 10 COMP. GEN. 280

A-34377: Dec 26, 1930

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SEAMEN - ALIENS - RELIEF THE PROVISIONS OF LAW RELATIVE TO THE RELIEF IN FOREIGN COUNTRIES AND THE REPATRIATION OF AMERICAN SEAMEN ARE NOT TO BE CONSTRUED AS IMPOSING ANY DUTY ON AN AMERICAN CONSULAR OFFICER TO FURNISH RELIEF OR PROVIDE FOR SENDING TO A PORT OF THE UNITED STATES A SEAMAN IN THE COUNTRY OF WHICH HE IS A NATIONAL. AS FOLLOWS: THERE IS ENCLOSED A COPY OF A DESPATCH RECEIVED FROM THE AMERICAN CONSUL GENERAL AT VALPARAISO. WHEREBY A VESSEL IS HELD RESPONSIBLE FOR THE REPATRIATION TO CHILE OF NATIONALS OF THAT COUNTRY WHO MAY ALSO HAVE THE STATUS OF AMERICAN SEAMEN AND HAVE BEEN SIGNED ON AN AMERICAN VESSEL IN A PORT OF THE UNITED STATES. ALSO IN SIMILAR CASES OF AMERICAN SEAMEN WHO ARE CHILEAN CITIZENS.

A-34377, DECEMBER 26, 1930, 10 COMP. GEN. 280

SEAMEN - ALIENS - RELIEF THE PROVISIONS OF LAW RELATIVE TO THE RELIEF IN FOREIGN COUNTRIES AND THE REPATRIATION OF AMERICAN SEAMEN ARE NOT TO BE CONSTRUED AS IMPOSING ANY DUTY ON AN AMERICAN CONSULAR OFFICER TO FURNISH RELIEF OR PROVIDE FOR SENDING TO A PORT OF THE UNITED STATES A SEAMAN IN THE COUNTRY OF WHICH HE IS A NATIONAL, WHERE THE LAWS OR SHIPPING REGULATIONS OF SUCH COUNTRY WOULD PRECLUDE HIS BEING SIGNED ON AN AMERICAN VESSEL WITHOUT ASSUMING CERTAIN OBLIGATIONS TO HIM AS A CITIZEN OF SAID COUNTRY.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF STATE, DECEMBER 26, 1930:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF NOVEMBER 25, 1930, AS FOLLOWS:

THERE IS ENCLOSED A COPY OF A DESPATCH RECEIVED FROM THE AMERICAN CONSUL GENERAL AT VALPARAISO, CHILE, WHICH CONCERNS CERTAIN DIFFICULTIES ENCOUNTERED IN CONNECTION WITH THE RECENT ENFORCEMENT OF A PROVISION OF THE CHILEAN MARITIME REGULATIONS, WHEREBY A VESSEL IS HELD RESPONSIBLE FOR THE REPATRIATION TO CHILE OF NATIONALS OF THAT COUNTRY WHO MAY ALSO HAVE THE STATUS OF AMERICAN SEAMEN AND HAVE BEEN SIGNED ON AN AMERICAN VESSEL IN A PORT OF THE UNITED STATES. THE DESPATCH POINTS OUT IN THIS RELATION, ON PAGE THREE, THE CONFLICT BETWEEN THE CHILEAN AND AMERICAN LAW WITH RESPECT TO THE OBLIGATION OF THE VESSEL FOR THE RETURN OF THE SEAMAN.

THE DEPARTMENT WOULD ACCORDINGLY BE PLEASED TO BE INFORMED OF YOUR VIEWS AS TO WHETHER, IN THE CASE OF OCTAVIO VERDEJO, CITED IN THE DESPATCH UNDER REFERENCE, ALSO IN SIMILAR CASES OF AMERICAN SEAMEN WHO ARE CHILEAN CITIZENS, THE ENFORCEMENT OF THE CHILEAN REGULATIONS WOULD RELIEVE THE VESSEL, AS WELL AS THE GOVERNMENT OF THE UNITED STATES, FROM ALL OBLIGATION TO MAINTAIN SUCH SEAMEN IN CHILE AND SUBSEQUENTLY TO RETURN THEM TO THE UNITED STATES.

THE DISPATCH OF THE AMERICAN CONSUL GENERAL IS, IN PART, AS FOLLOWS:

FOR OVER TWO YEARS THE VALPARAISO AGENTS OF AMERICAN STEAMSHIP COMPANIES HAVE BEEN COOPERATING TO THE FULLEST POSSIBLE EXTENT WITH THIS CONSULATE GENERAL, AND THE EXPENSES FOR THE CARE, MAINTENANCE, AND FINAL RETURN TO THE UNITED STATES OF AMERICAN SEAMEN HAVE BEEN BORNE BY THE STEAMSHIP COMPANIES, NO PUBLIC FUNDS HAVING BEEN EXPENDED BY THIS OFFICE DURING THAT TIME FOR THE HOSPITALIZATION, RELIEF, OR REPATRIATION OF AMERICAN SEAMEN. THE RETURN TO THE UNITED STATES OF AMERICAN SEAMEN WHO FOR SOME SUFFICIENT REASON WERE DISCHARGED AT VALPARAISO, OR WHO WERE STRAGGLERS AS DEFINED BY THE REGULATIONS, HAS USUALLY BEEN ACCOMPLISHED BY HAVING THE SEAMEN IN EACH CASE SIGN ON THE ARTICLES OF A SHIP OF THE SAME LINE, FOR THE VOYAGE TO THE UNITED STATES. THE CAPACITY IN WHICH A MAN WAS SIGNED DEPENDED IN PART ON THE NEEDS OF THE SHIP ON WHICH HE RETURNED TO THE UNITED STATES, OR ON THE FACTS OF HIS PARTICULAR CASE, CERTAIN TYPES OF INDIVIDUALS BEING SHIPPED AS UTILITY MEN AT ONE CENT A MONTH.

THE ARRANGEMENTS ABOVE DESCRIBED PROVED SATISFACTORY BOTH TO THIS OFFICE AND TO THE AGENTS OF THE STEAMSHIP COMPANIES, AND AT THE SAME TIME THE RULINGS OF THE COMPTROLLER GENERAL OF THE UNITED STATES WERE COMPLIED WITH. DIFFICULTIES BEGAN TO PRESENT THEMSELVES, HOWEVER, AFTER JUNE 13, 1930, WHEN CAPTAIN ENRIQUE CASTRO BECAME THE MARITIME GOVERNOR OF THE PROVINCE OF ACONCAGUA, WHICH INCLUDES VALPARAISO. ON AUGUST 20, 1930, HE SENT A COMMUNICATION TO THIS OFFICE, A COPY OF WHICH IS ENCLOSED HEREWITH, AND IN WHICH HE QUOTED CERTAIN PROVISIONS OF THE CHILEAN MARITIME REGULATIONS OF WHICH A TRANSLATION IS GIVEN BELOW.

"ARTICLE 1. EVERY CHILEAN WHO WISHES TO SHIP ON A FOREIGN SHIP WITHOUT LOSING HIS RIGHTS TO CONSULAR PROTECTION MUST DO SO BY MEANS OF A CONTRACT SIGNED BEFORE THE MARITIME AUTHORITY OR CHILEAN CONSUL AT THE PORT OF EMBARKATION, IN THE SAME FORM ESTABLISHED BY THE REGULATIONS OF JANUARY 25, 1901, FOR CHILEANS EMBARKING IN NATIONAL SHIPS.

"ARTICLE 2. THE CAPTAIN WHO DESIRES TO ENGAGE SUCH PERSONNEL FOR HIS SHIP MUST DO IT WITHIN THE COUNTRY, IN THE MANNER ABOVE INDICATED, AND ABROAD BEFORE THE CHILEAN CONSULS.

"ARTICLE 3. HOWEVER, THE CHILEAN WHO, EXERCISING HIS RIGHTS, WISHES TO MAKE A CONTRACT WITHOUT COMPLYING WITH THE PROVISIONS OF THESE REGULATIONS, MUST INDICATE THAT FACT TO THE MARITIME OR CONSULAR AUTHORITIES AT THE PORT OF EMBARKATION, WHICH FACT WILL BE NOTED IN HIS SEAMAN'S BOOK, TOGETHER WITH THE REGULATION TO WHICH IT REFERS, PROVIDED ALWAYS THAT IN HIS SEAMAN'S BOOK PROVISIONS FOR HIS REPATRIATION IS MADE.'

IF A CHILEAN IS TO BE SIGNED ON AN AMERICAN SHIP AT VALPARAISO A CONTRACT MUST BE MADE BETWEEN THE MASTER AND THE SEAMAN BEFORE THE CHILEAN MARITIME GOVERNOR, THE CAPTAIN OF THE PORT, UNLESS SUCH SEAMAN CAN BE PERSUADED TO WAIVE HIS CONSULAR RIGHTS, IN WHICH CASE THE SHIP IS, HOWEVER, MADE SPECIFICALLY RESPONSIBLE UNDER CHILEAN LAW FOR THE REPATRIATION OF SAID SEAMAN TO CHILE, BY VIRTUE OF HIS BEING A CHILEAN CITIZEN SIGNED ON IN A CHILEAN PORT.

THESE REGULATIONS, TOGETHER WITH THE MARITIME GOVERNOR'S INTENTION TO ENFORCE THEM STRICTLY, HAVE BEEN BROUGHT TO THE ATTENTION OF THE MASTERS OF AMERICAN VESSELS CALLING AT VALPARAISO, WHO HAVE WITHOUT EXCEPTION STATED THAT THEY ARE NOT IN A POSITION TO SIGN THE CONTRACT BEFORE THE CHILEAN MARITIME AUTHORITIES, AS THAT CARRIES WITH IT EXTENSIVE LIABILITIES UNDER CHILEAN LAW WHICH THEY ARE NOT AUTHORIZED TO ASSUME. THE OTHER HAND, THEY POINT OUT THAT EVEN THOUGH THE SEAMAN IS PERSUADED TO WAIVE HIS CONSULAR RIGHTS, THEREBY OBVIATING THE NECESSITY OF THE ABOVE- MENTIONED CONTRACT, NEVERTHELESS THE SHIP IS LIABLE FOR THE REPATRIATION TO CHILE OF THE SEAMAN, AND IN THE EVENT THAT THE CHILEAN IS AN AMERICAN SEAMAN THEY ARE ALSO OBLIGATED TO RETURN HIM TO THE UNITED STATES, WHICH CONFLICT OF LAWS CREATES A DUAL OBLIGATION, THE FULFILLMENT OF WHICH GIVES RISE TO AN ABSURDITY.

THE QUESTION CEASED TO BE AN ACADEMIC ONE IN THE CASE OF OCTAVIO VERDEJO, A CHILEAN CITIZEN, BUT AN AMERICAN SEAMAN WHO HAS BEEN LEGALLY ADMITTED TO THE UNITED STATES FOR PERMANENT RESIDENCE AS INDICATED BY HIS IMMIGRANT IDENTIFICATION CARD, AND HAVING FORMALLY DECLARED HIS INTENTION OF BECOMING AN AMERICAN CITIZEN AND SERVED THREE YEARS ON MERCHANT VESSELS OF THE UNITED STATES, IS IN POSSESSION OF A CERTIFICATE ISSUED IN ACCORDANCE WITH SECTION ONE, SUBDIVISION EIGHT, OF THE ACT OF MAY 9, 1918, STATING THAT HE BE DEEMED A CITIZEN OF THE UNITED STATES FOR THE PURPOSE OF SERVING ON BOARD VESSELS OF THE UNITED STATES.

ON AUGUST 28, 1930, IN ACCORDANCE WITH THE SHIP'S DOCTOR'S RECOMMENDATION HE WAS DISCHARGED FROM THE SANTA INEZ, OF THE GRACE LINE, BECAUSE HE WAS SUFFERING FROM SYPHILIS. HE WAS SENT TO THE HOSPITAL AT THE EXPENSE OF THE AGENTS W. R. GRACE AND COMPANY, AND AFTER HIS DISCHARGE THEREFROM ARRANGEMENTS WERE MADE TO HAVE HIM SHIPPED ON SEPTEMBER 29, 1930, ON THE SANTA RITA OF THE SAME LINE, FOR HIS REPATRIATION TO THE UNITED STATES. IN THE MORNING OF THE DAY THE SANTA RITA WAS TO SAIL A REPRESENTATIVE FROM W. R. GRACE AND COMPANY CALLED AT THE OFFICE OF THE MARITIME GOVERNOR WITH THE SAID SEAMAN, OCTAVIO VERDEJO, BUT THE CAPTAIN OF THE PORT WAS NOT THERE. THE CASE WAS EXPLAINED TO THE SECRETARY WHO STATED THAT HE THOUGHT IN SUCH A CASE THE MERE NOTIFICATION WOULD BE SUFFICIENT, AND ACCORDINGLY OCTAVIO VERDEJO WAS SIGNED ON THE ARTICLES OF THE SANTA RITA AT THIS CONSULATE GENERAL SHORTLY BEFORE NOON ON MONDAY, SEPTEMBER 29, 1930. JUST BEFORE THE SHIP WAS READY TO SAIL, THE CAPTAIN OF THE PORT, CAPTAIN ENRIQUE CASTRO, REFUSED TO GIVE THE SHIP ITS CLEARANCE, GIVING AS HIS REASON THE FACT THAT A CHILEAN HAD BEEN SHIPPED WITHOUT COMPLYING WITH THE CHILEAN LAW. OCTAVIO VERDEJO'S NAME WAS THEREUPON STRICKEN FROM THE LIST OF THE CREW SUBMITTED TO THE CAPTAIN OF THE PORT, THE SEAMAN WAS TAKEN ASHORE AGAINST HIS WISHES, AND THE SHIP WAS CLEARED. THESE FACTS WERE REPORTED TO THIS CONSULATE GENERAL AFTER THE ACTION HAD BEEN TAKEN, AND AFTER THE SHIP HAD SAILED.

IN VIEW OF THE ABOVE FACTS THIS CONSULATE GENERAL RESPECTFULLY REQUESTS SPECIFIC INSTRUCTIONS FROM THE DEPARTMENT ON THE TWO POINTS INDICATED BELOW.

(1) IS THE CASE OF OCTAVIO VERDEJO ONE IN WHICH THE EXPENDITURE OF PUBLIC FUNDS IS AUTHORIZED FOR THE MAINTENANCE AND REPATRIATION OF AN AMERICAN SEAMAN, THE AGENTS OF THE VESSEL HAVING ATTEMPTED TO RETURN HIM TO THE UNITED STATES, AND HAVING BEEN PREVENTED FROM SO DOING BY THE CHILEAN AUTHORITIES?

THE DUTIES OF THE CONSULAR OFFICERS OF THE UNITED STATES WITH RESPECT TO THE ENFORCEMENT OF THE RIGHTS OF SEAMEN AND THE LIABILITY OF VESSELS OR THEIR OWNERS ARE NOT PRIMARILY FOR DETERMINATION BY THIS OFFICE EXCEPT IN SO FAR AS IT INVOLVES PAYMENTS MADE BY SUCH CONSULAR OFFICERS FROM PUBLIC FUNDS. AS AFFECTING PAYMENTS TO BE MADE, BY SUCH CONSULAR OFFICERS, IT MAY BE STATED THAT IN THE CASE PRESENTED, THE SEAMAN APPEARS TO HAVE A DUAL STATUS; THAT IS, AS AN AMERICAN SEAMAN UNDER HIS DECLARATION TO BECOME AN AMERICAN CITIZEN, AND AS A CHILEAN NATIONAL. UNDER HIS STATUS AS AN AMERICAN SEAMAN, THE MASTER OR OWNER OF THE VESSEL WAS RESPONSIBLE FOR HIS RETURN TO THE UNITED STATES. BUT THE PROVISIONS OF LAW RELATIVE TO THE RELIEF IN FOREIGN COUNTRIES AND THE REPATRIATION OF AMERICAN SEAMEN ARE NOT TO BE CONSTRUED AS IMPOSING ANY DUTY ON AN AMERICAN CONSULAR OFFICER TO FURNISH RELIEF OR PROVIDE FOR SENDING TO A PORT OF THE UNITED STATES A SEAMAN IN THE COUNTRY OF WHICH HE IS A NATIONAL WHERE THE LAWS OR SHIPPING REGULATIONS OF SUCH COUNTRY WOULD PRECLUDE HIS BEING SIGNED ON AMERICAN VESSEL WITHOUT ASSUMING CERTAIN OBLIGATIONS TO HIM AS A CITIZEN OF SAID COUNTRY. THEREFORE, NO RELIEF SHOULD BE FURNISHED TO THE SEAMAN OCTAVIO VERDEJO UNDER THE CIRCUMSTANCES MENTIONED IN THE CONSUL GENERAL'S DESPATCH, SUPRA. ..END :