of the latter; in which cases such consuls, etc., shall be presumed to be their legal representatives." Article IX of the convention with Sweden of June 1, 1910, declares that consular officers shall have the right to "address specified authorities— "in order to complain of any infraction of the treaties and conventions between the United States and Sweden, and for the purpose of protecting the rights and interests of their countryment." This language is also duplicated in Article IX of the consular convention with Greece of November 19, 1902. It is not recalled that the last two lines of the convention with Germany of 1871 (article above quoted) have ever been duplicated in any other treaty of the United States, although in another connection it is provided in Article XV of the convention with Belgium of March 9, 1880 (no longer in force), that specified consular officers— “shall have the right to appear, personally or by delegate, in all proceedings on behalf of the absent or minor heirs, or creditors, until they are duly represented." ARTICLE XXII. This article, which provides for the exercise by consular officers of notarial functions, differs somewhat from the corresponding article (IX) of the convention of 1871, which provides: "Consul general, consuls, vice consuls, and consular agents of the two countries, or their chancellors, shall have the right, conformably to the laws and regulations of their country- 1. To take at their office or dwelling, at the residence of the parties, or on board of vessels of their own nation, the depositions of the captains and crews, of passengers on board of them, of merchants, or of any other citizens of their own country. 2. To receive and verify unilateral acts, wills, and bequests of their countrymen, and any and all acts of agreement entered upon between citizens of their own country, and between such citizens and the citizens or other inhabitants of the country where they reside; and also all contracts between the latter, provided they relate to property situated or to business to be transacted in the territory of the nation by which the said consular officers are -appointed. "All such acts of agreement and other instruments, and also copies and translations thereof, when duly authenticated by such consul general, consul, vice consul, or consular agent, under his official seal, shall be received by public officials, and in courts of justice as legal documents, or as authenticated copies, as the case may be, and shall have the same force and effect as if drawn up or authenticated by competent public officers of one or the other of the two countries." ARTICLE XXIII. This article, which provides for the jurisdiction to be exercised by consular <officers, is designed to indicate with greater precision the scope and limits of the jurisdiction conferred than is apparent from the corresponding article (XIII) of the convention of 1871. It is believed that an improvement has been made on the text of that convention which provides: "Consuls general, consuls, vice consuls, or consular agents shall have exclusive charge of the internal order of the merchant vessels of their nation, and shall have the exclusive power to take cognizance of and to determine differences of every kind which may arise, either at sea or in port, between the captains, officers, and crews, and specially in reference to wages and the execution of mutual contracts. Neither any court or authority shall, on any pretext, interfere in these differences, except in cases where the differences on board ship are of a nature to disturb the peace and public order in port, or on shore, or when persons other than the officers and crew of the vessel are parties to the disturbance. The last two paragraphs of the same article (XIII), which are not repro'duced in Article XXIII of the proposed treaty, are as follows: "Except as aforesaid, the local authorities shall confine themselves to the rendering of efficient aid to the consuls, when they may ask it, in order to arrest and hold all persons, whose names are borne on the ship's articles, and whom they may deem it necessary to detain. Those persons shall be arrested at the sole request of the consuls, addressed in writing to the local authorities and supported by an official extract from the register of the ship or the list of the crew, and shall be held during the whole time of their stay in the port at the disposal of the consuls. Their release shall be granted only at the request of the consuls made in writing.". "The expenses of the arrest and detention of those persons shall be paid by the consuls." It should be observed, however, that the third paragraph of Article XXIII of the treaty proposed does, however, permit a consular officer to invoke the ass.stance of local police authorities for specified purposes. It may be noted here that Article XIV of the convention of 1871 with respect to the right of consuls to obtain deserters from ships is omitted by reason of the seamen's act of March 4, 1915. (United States Compiled Statutes, 1918, sec. 8382a.) The last paragraph of Article XXIII, which permits a consular officer to appear with the officers and crews of vessels under the flag of his country before the judicial authorities of the State to which he is appointed to render assistance as an interpreter or agent, is an important provision, duplicating in part a portion of Article XII of the convention of 1871. The other and major portions of that article are not contained in the proposed treaty; nor are they to be found in the consular convention with Sweden of June 1, 1910. The article reads as follows: "Consuls general, consuls, vice consuls, and consular agents shall be at liberty to go either in person or by proxy on board vessels of their nation admitted to entry and to examine the officers and crews, to examine the ships' papers, to receive declarations concerning their voyage, their destination, and the incidents of the voyage; also to draw up manifests and lists of freight, to facilitate the entry and clearance of their vessels, and finally to accompany the said officers or crews before the judicial or administrative authorities of the country, to assist them as their interpreters or agents. "The judicial authorities and custom-house officials shall in no case proceed to the examination or search of merchant vessels without having given previous notice to the consular officers of the nation to which the said vessels belong, in order to enable the said consular officers to be present. 66 They shall also give due notice to the said consular officers, in order to enable them to be present at any depositions or statements to be made in courts of law or before local magistrates, by officers or persons belonging to the crew, thus to prevent errors or false interpretations which might impede the correct administration of justice. The notice to consuls, vice-consuls, or consular agents shall name the hour fixed for such proceedings. Upon the nonappearance of the said officers or their representatives, the case may be proceeded with in their absence." It may be noted that there is omitted from the proposed treaty the following article (XV) appearing in the convention of 1871: "In the absence of an agreement to the contrary between the owners, freighters and insurers, all damages suffered at sea by the vessels of the two countries, whether they enter port voluntarily or are forced by stress of weather shall be settled by the consuls general, consuls, vice consuls, and consular agents of the respective countries. If, however, any inhabitant of the country, or citizen or subject of a third power, shall be interested in the matter, and the parties can not agree, the competent local authorities shall decide." This article is also omitted from the convention with Sweden of June 1, 1910. ARTICLE XXIV. This article deals with the relation of consuls to estates of deceased interstate countrymen. The first paragraph substantially reproduces the first paragraph of Article X of the convention of 1871. The second paragraph of that article of that convention is omitted from the proposed treaty, as also from the consular convention with Sweden of June 1, 1910. It provides as follows: "The said consular officer shall have the right to appear personally or by delegate in all proceedings on behalf of the absent heirs or creditors, until they are duly represented." The third paragraph of Article X (also here omitted) of the convention of 1871 provides that "In all successions to inheritances, citizens of each of the contracting parties shall pay in the country of the other such duties only as they would be liable to pay, if they were citizens of the country in which the property is situated or the judicial administration of the same may be exercised." It should be noted, however, that the matter is dealt with in the second paragraph of Article IV of the proposed treaty. The second paragraph of Article XXIV deals with the matter of administration of estates, and the provisions thereof are self-explanatory. It will be observed that the consular right of administration is definitely subordinated to the requirements of the local law, which seems highly expedient from an American point of view. The last paragraph of the article properly subjects the consular officer when acting as administrator to the jurisdiction of the court appointing him. The convention of 1871 with Germany contains no provision concerning the administration of estates. It may be noted here that there is omission from the proposed treaty of Article XI of the convention of 1871 to the effect that— "Consuls general, consuls, vice consuls, and consular agents of the two countries are exclusively charged with the inventorying and the safe-keeping of goods and effects of every kind left by sailors or passengers on ships of their nation who die, either on board ship or on land, during the voyage or in the port of destination." This article is also omitted from the convention with Sweden of June 1, 1910. ARTICLE XXV. This is a new provision not found in any previous treaty. It offers a practical and wise means of utilizing the consular function for the benefit of all concerned, and advantageous to interested distributees. It is a practical instance where the consul is for a particular purpose made the legal representative of his nonresident countrymen. (Compare Article VIII of the convention of 1871, noted above as omitted.) ARTICLE XXVI. This is a new article desired by the Consular Service and the Public Health Service. Germany has been willing to accept it. It is greatly desired to incorporate it in other treaties. ARTICLE XXVII. This article finds no counterpart in the convention of 1871. It makes careful and appropriate provision for the entry of consular furniture, equipment, etc., and of baggage and personal property of consular officers, their families, and suites. ARTICLE XXVIII. This article, which deals with proceedings relative to the salvage of vessels, is self-explanatory. It corresponds with the somewhat differing Article XVI of the convention of 1871. That article is as follows: "In the event of a vessel belonging to the Government or owned by a citizen of one of the two contracting parties being wrecked, or cast on shore, on the coast of the other, the local authorities shall inform the consul general, consul, vice consul, or consular agent of the district of the occurrence, or if there be no such consular agency, they shall inform the consul general, consul, vice consul, or consular agent of the nearest district. "All proceedings relative to the salvage of American vessels wrecked or cast on shore in the territorial waters of the German Empire shall take place in accordance with the laws of Germany; and, reciprocally, all measures of salvage relative to German vessels wrecked or cast on shore in the territorial waters of the United States shall take place in accordance with the laws of the United States. 66 "The consular authorities have in both countries to intervene only to superintend the proceedings having reference to the repair and revictualling, or, if necessary, to the sale of the vessel wrecked or cast on shore. 6.6 For the intervention of the local authorities, no charges shall be made, except such as in similar cases are paid by vessels of the nation. "In case of a doubt concerning the nationality of a shipwrecked vessel, the local authorities shall have exclusively the direction of the proceedings provided for in this article. "All merchandise and goods not destined for consumption in the country where the wreck takes place shall be free of all duties." ARTICLE XXIX. This article refers to the scope and limits of the areas over which the treaty is operative. With respect to the United States, the Panama Canal Zone is excepted; and for purposes connected with customs administration, the territory of Germany is deemed to be coterminous with the area included within the German customs lines. There is omitted from the proposed treaty the following provisions appearing as Article XVII of the convention of 1871: "With regard to the marks or labels of goods, or of their packages, and also with regard to patterns and marks of manufacture and trade, the citizens of Germany shall enjoy in the United States of America, and American citizens shall enjoy in Germany, the same protection as native citizens." By Article II of the International Convention for the Protection of Industrial Property, signed at Washington June 2, 1911, the subjects and citizens of the countries party to that convention enjoy all the advantages which nationals enjoy in their respective countries with regard to patents of invention, models of utility, industrial designs or models, trade-marks, trade names, the statements of place of origin, and suppression of unfair competition. As the United States and Germany are parties to that convention, it is not necessary to incorporate in the proposed treaty provisions such as those quoted in the convention of 1871. ARTICIE XXX This article, which is self-explanatory, forbids a limitation or restriction by the proposed treaty of rights accorded either party or its nationals by the treaty restoring friendly relations of August 25, 1921. ARTICLES XXXI AND XXXII. These articles require no comment. (It may perhaps be unnecessary to note that the expression "property " used in the English text of Articles III and IX of the convention of 1871, was construed, in accordance with the views of the Senate, as meaning "real estate," in a protocol signed at Berlin April 29, 1872.) (Thereupon the committee adjourned to meet on Tuesday, January 29, 1924, at 10.30 o'clock a. m.) X TREATY OF COMMERCE AND CONSULAR RIGHTS WITH GERMANY HEARINGS BEFORE THE COMMITTEE ON FOREIGN RELATIONS UNITED STATES SENATE SIXTY-EIGHTH CONGRESS FIRST SESSION ON TREATY OF COMMERCE AND CONSULAR RIGHTS WITH GERMANY JANUARY 31, 1924 PART 2 Irinted for the use of the Committee on Foreign Relations WASHINGTON GOVERNMENT PRINTING OFFICE 1924 |