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any company which the agent has authority to represent. It is not intended that such cooperation shall have the effect of superseding the consular officer in cases where the duties of the two officers may be the same, but only that it shall embrace those matters, not conflicting with his public duties, in which his position and authority may properly be used to promote the interests of the underwriters. All surveys of vessels and damaged goods are to be inaugurated and conducted under the authority and supervision of consular officers; and when a master undertakes to conduct the proceedings without such sanction and authority, he is none the less liable for all lawful consular fees and charges.
337. Consular fees.—The proceedings of a consular officer in these respects will be determined by the provisions of law and treaty, the custom of the port, and the wishes and duties of the master of the vessel. If the services to be rendered in behalf of the ship or cargo are such as the consular officer is authorized by law or usage to perform, it is the duty of the master to apply to him for them; and the statute provides as a penalty for neglect or refusal to do so that the papers of the vessels shall be retained until the proper consular fees are paid. In certain cases it is the duty of the consular officer to order a survey, whether with the consent of the master or not.-R. S., secs. 1718, 4559–4563.
338. Jurisdiction by treaty.-In countries with which the United States have treaties providing for the jurisdiction of a consular officer over wrecks, damages to cargoes, and salvage it is his duty to exercise that jurisdiction for the protection of the interests of all concerned. Consular officers should satisfy themselves of the extent of the authority granted by the treaty or acquired by established usage in these respects in their several countries, and should conform their proceedings thereto. It belongs to the master, as the representative of the owners of the vessel and cargo-except where otherwise provided by law-to decide whether he will call for a survey, and in the absence of a request from him a consular officer is usually not authorized to direct a survey to be made.' If, however, the master neglects or refuses to apply for services which it is the duty of the consular officer by law or usage to perform and obtains the services through other agents, he should be advised of the provisions of law respecting such neglect or refusal.
339. In Spanish West Indies.—By a royal decree of July 28, 1868, consular officers in the Spanish West Indies are authorized to direct all the operations of salvage in the cases of vessels of their nationality wrecked in their several jurisdictions, as representatives of the owners. The local customs officers are required to give all necessary assistance in saving the ship and cargo, and measures are to be taken between the two classes of officers for the custody and sale of the wreck and cargo and the collection of duties.
340. Treaties to be consulted.—Consular officers will consult the text of treaties affecting proceedings concerning wrecks in all cases in which they may have occasion to act under them. If the assistance stipulated for is refused in any case, or the treaty provisions are ignored in any respect, they will at once advise the diplomatic representative of the United States, if there be one in the country, and the Department of State. (Paragraph 90.)
AMERICAN OR FOREIGN BUILT VESSELS TRANSFERRED
ABROAD TO CITIZENS OF THE UNITED STATES.
341. Right to acquire property in foreign ships.—The right of citizens of the United States to acquire property in foreign ships has been held to be a natural right, independent of statutory law, and such property is as much entitled to protection by the United States as any other property of a citizen of the United States.
342. Treasury regulationssea letters.--The existing general regulations of the Treasury Department under the customs and navigation laws (Customs Regulations, 1892) recognize the right of property in vessels of this character and declare them to be entitled to the protection of the authorities and to the flag of the United States, although no register, enrollment, license, or other marine document prescribed by the laws of the United States can lawfully be issued to such vessels whether they are American or foreign built. The former practice of issuing sea letters in the case of the purchase abroad of American or foreign vessels by citizens of the United States is no longer authorized. Nevertheless, though the issuing of sea letters to such ships is not now authorized, yet there would seem to be no good reason upon the face of our present legislation why the Department of State should not resume the practice, in case the United States should be a neutral in a war between maritime powers, if it should deem such letters more protective in their character than consular or customs certificates of sale.
343. Record of bill of sale, certificate, etc.—In view of existing regulations, and to enable the owners of a vessel so situated to protect their rights, if molested or questioned, a consular officer, though forbidden by law to grant any marine document or certificate of ownership, may lawfully make record of the bill of sale in his office, authenticate its execution, and deliver to the purchaser a certificate to that effect; certifying, also, that the owner is a citizen of the United States. Before granting such a certificate the consular officer will require the tonnage of the vessel to be duly ascertained in pursuance of law and insert the same in the description of the vessel in his certificate. (Form No. 35.) These facts thus authenticated, if the transfer is in good faith, entitle the vessel to protection as the lawful property of a citizen of the United States; and the authentication of the bill of sale and of citizenship will be prima facie proof of such good faith.
344. Consul's responsibility.—The authority of a consular officer to authenticate the transfer of a foreign vessel is wide in its effects and imposes great responsibility in making him, in the first instance at least, the sole judge of the good faith of the transaction. The question of the honesty and good faith of such a sale rises into the gravest importance in the event of a war between two or more powers in which the Government of the United States is a neutral. In such a war experience justifies the expectation that the citizens or subjects of one or more of the belligerents will seek to protect their shipping by a transfer to a neutral flag. In some instances this may honestly be done; but the sales of the vessels of belligerents in apprehension of or in time of war are always and properly liable to suspicion, and they justify the strictest inquiry on the part of the belligerent who may thereby have been defrauded of his right to capture the enemy's property. The acceptance of the pretended ownership of a vessel under these circumstances may be very profitable; and the temptation to abuse his trust in such a case to which a consular officer is subjected may be too great for persons of ordinary integrity, discernment, and firmness to withstand. Instances are not wanting in which citizens of the United States who were wholly incapable, from their previous well-known condition and pursuits, of making such a purchase have appeared as owners under sales of this character and have sought for them the protection of the Government.
345. Careful investigtion enjoined. It is the duty of a consular officer to use all available means, especially during the existence of a war to which this Government is not a party, to
satisfy himself that the sale of a vessel is made in good faith and without a fraudulent intent. A considerable discretion and responsibility rest upon him in the determination of the good faith of such transactions. It is not to be concluded that all such sales, even in time of peace, are honest and free from collusion or fraud. It is the duty of the consular officer to notice all circumstances that throw doubt on the good faith of the transaction or point to its fictitious character, and, if he is satisfied in this respect, to refuse to grant his certificate. On the other hand, he is not permitted to regard the mere fact of the sale of a vessel to a citizen of the United States as any evidence of fraud. The presumption must be otherwise, and, in the absence of any indication of dishonesty, a sale in the regular way, with the usual business formalities, is to be regarded as made in good faith.
346. Certificate, when to be issued. When a consular officer shall have satisfied himself, after the investigation with which he is charged, that the sale of a vessel is not fictitious and is made in good faith, and that the purchaser is a citizen of the United States, it is his duty, when requested, to record the bill of sale in the consulate, and to deliver the original to the purchaser, with his certificate annexed thereto, according to Form No. 35. A copy of the bill of sale, together with any other papers belonging to the transfer, and of the consular certificate should be sent without delay to the Department of State, with a report of the facts and circumstances of the transaction.
347. Right to fly the flag.–The privilege of carrying the flag of the United States is under the regulation of Congress, and it may have been the intention of that body that it should be used only by regularly documented vessels. No such intention, however, is found in any statute. And as a citizen is not prohibited from purchasing and employing abroad a foreign ship, it is regarded as reasonable and proper that he