the foreign consular officer in accordance with foreign regulations, on the ground that such action was demanded by international comity. This Government, however, expects and requires reciprocal treatment for its vessels in the ports of other countries, and the Treasury Department does not at present recall any instance other than that now under consideration in which such reciprocal treatment is not accorded.

"It is hoped that Her Majesty's Government will take the necessary measures to secure such treatment for American vessels in Canadian ports.

"You will communicate a copy of this instruction to Her Majesty's Government."

Mr. Bayard, Sec. of State, to Mr. White, chargé at London, March 1, 1889, For. Rel. 1889, 447.

The construction given in the United States to sections 4511 and 4512,
Revised Statutes, as referred to by Mr. Bayard, may be found in Mr.
Fairchild, Sec. of Treasury, to Mr. Bayard, Sec. of State, Feb. 25,
1889, For. Rel. 1889, 458. While saying that those sections had
never been construed as requiring seamen engaged by foreign vessels
in the United States to be shipped before United States shipping com-
missioners, Mr. Fairchild stated that, if the Canadian government
should prove to be an exception to the rule, which was understood
to be everywhere else observed, that shipments of seamen by for-
eign vessels were allowed to be made before their consular officers,
he should deem it his duty to instruct the officials of the Treasury
Department to require all shipments of seamen on British vessels in
American ports to be made before United States shipping commis-
sioners. He added that the United States took notice in analogous
cases of foreign law, and in exercising jurisdiction administered
relief by comity, in accordance with the flag of the vessels. In this
relation he cited the Brantford City, 29 Fed. Rep. 373; the Olga, 32
Fed. Rep. 330; the John Ritsan, 35 Fed. Rep. 663.

See Mr. Lincoln, min. to England, to Lord Salisbury, Sept. 18, 1889, For.
Rel. 1889, 461.

October 12, 1889, Sir T. V. Lister, of the British foreign office, communi-
cated to Mr. Lincoln an extract from a report of a committee of the
Canadian privy council, bearing date September 20, 1889, by which
Mr. Lincoln stated it appeared that the Canadian government had
directed "the cessation, for an indefinite period, of the enforcement of
the seamen's act as to shipping seamen before shipping masters, so
far as American vessels are concerned." (Mr. Lincoln, min. to Eng-
land, to Mr. Blaine, Sec. of State, For. Rel. 1889, 464.) In the
report, however, it was stated that the minister of justice had no
doubt as to the right of the government of Canada to enforce the pro-
visions of the act, the object of which was to restrain the evils
attendant upon the crimping of seamen and to restrain desertion;
but it was added that the minister, considering the desire of the
United States that American vessels should enjoy the benefit of
the act, and observing the practice prevailing in United States ports
with regard to British ships, recommended that, while the operation
of the different clauses of the act, so far as the rights of private per-

sons were concerned, could not be interfered with without an act of Parliament, her Majesty's Government be informed that instructions will be issued to the collectors of customs and the different shipping officers not to insist upon a compliance with the provisions of the act requiring the shipment of foreign seamen before the shipping master, so far as American vessels are concerned, until further notice." (For. Rel. 1889, 465-466.)

Mr. Lincoln was instructed to express the gratification of the Department of State" that the Canadian Government has directed the nonenforcement, for an indefinite period, of the act of 1886 as to shipping seamen before shipping masters,' so far as American vessels are concerned." (Mr. Blaine, Sec. of State, to Mr. Lincoln, min. to England, Oct. 29, 1889, For. Rel. 1889, 467.)

"I enclose for your information copy of correspondence from which it appears that the master of the American vessel Evie J. Ray was compelled by the local authorities at Singapore to ship part of his crew at the office of the British master attendant, to pay for the service in question, and to give a bond for each seaman shipped, thereby causing expense and delay to the master.

"The matter having been referred to the Secretary of the Treasury, that officer expresses the opinion that the laws of the United States require that the crews of American vessels shipped in British ports shall be shipped before American consuls, and that, in this respect, the action of the consul appears to have been in accord with the law and regulations.

"The Secretary of the Treasury adds that the action of the British authorities at Singapore in demanding that part of the crew be shipped before them and in exacting compensation and a bond from the American master appears to have been based on an Indian act of 1859, not usually enforced hitherto. That act relates to lascars and other native seamen. The men shipped on the Evie J. Ray, it appears, were not lascars and they were not native seamen in the sense that they were British subjects. They appear to have been Javanese, subjects of the Netherlands. Though it is contrary to general maritime custom for local authorities to demand that the crew of a foreign vessel shall be shipped before them as well as before the consul of the nation to which the vessel belongs, the Treasury Department does not at this time suggest a protest against this requirement by British authorities in so far as the Asiatic subjects of Great Britain are concerned. The contention of the British master attendant at Singapore that he can control and demand compensation and bonds for the shipment before him for American vessels of seamen who are not British subjects appears to the Treasury Department unprecedented and involves a principle, the recognition of which would be harmful to American navigation interests in Asia.'

H. Doc. 551-vol 2—22

"You are instructed to draw the attention of the foreign office to this matter, with a view to having the proper corrective applied."

Mr. Hay, Sec. of State, to Mr. Choate, min. to England, November 20, 1899, No. 248, MS. Inst. Gr. Br. XXXIII. 298, enclosing copy of a dispatch from United States consul-general at Singapore, No. 30, September 13, 1899, and copies of letters from the Secretary of the Treasury, October 26, 1899, and November 6, 1899.

September 2, 1899, one Chambers, a British subject, shipped as a fireman on the British steamship Kestor, from Baltimore, in Maryland, to Mexico, Cuba, and Philadelphia, and thereafter on another voyage from Philadelphia to Cuba and to some port in the United States north of Cape Hatteras. He was to receive 1 shilling for the first 20 days, and $30 a month afterwards. He duly entered on his employment and continued in it till he was discharged in Philadelphia, November 19, 1899. He had then received money and supplies amounting to $20.82, and a dispute arose as to the amount he should receive in final settlement of his account. The master of the vessel offered him $36.18, and, when Chambers refused to receive it, deposited it with the British consul at Philadelphia, subject to Chambers's order; and the consul subsequently sent it to the London Board of Trade, pursuant to the British shipping act. Chambers demanded $20 more, basing his claim on section 24 of the act of December 21, 1898 (30 Stat., 755), and section 10 of the act of June 25, 1884 (23 Stat., 53) by which is was, subject to certain exceptions and to the stipulations of any treaties, made unlawful in any case to pay a seaman wages in advance, it being provided that in such case the payment of full wages might afterwards be required. Chambers having libeled the steamer, it was contended that the statutes in question were intended to apply to the prepayment of wages of a British seaman serving on a British vessel, and that, if it was so intended, they were beyond the power of Congress. The court found, in the first place, upon the evidence in the case, that the stipulation for the payment of 1 shilling for the first 20 days was a mere cover for an attempted evasion of the statute, and that the master violated the provisions of the law by paying at Baltimore a part of Chambers's wages in advance. As to the application of the statute, the court held that it applied uniformly to all seamen, of whatever nationality, shipped in American ports on merchant vessels, whether American or foreign, and that it was a constitutional exercise of power by Congress. A decree was therefore entered in favor of the libellant for the sum of $56.18.

Bradford, J., Chambers v. Steamship Kestor (1901), 110 Fed. Rep. 432, citing the Eclipse, 53 Fed. Rep. 273; the Case of the Exchange, 7 Cranch, 116; United States v. Diekelman, 92 U. S. 520; Wildenhus'

Case, 120 U. S. 1; Ex parte Newman, 14 Wall. 152; the Belgenland,
114 U. S. 355; the Topsy, 44 Fed. Rep. 631.

The court dissented from the view that the statute applied only to
American seamen, as expressed in United States v. Nelson, 100 Fed.
Rep. 125. See Patterson v. Eudora, 190 U. S. 169.

The court also referred to the State of Maine, 22 Fed. Rep. 734, in which
Judge Brown held that section 10 of the act of June 26, 1884, was
not applicable to the shipment of seamen in foreign ports, the ground
being that the statute had no extraterritorial force.

4. INVOLUNTARY ENTRANCE, AS GROUND OF EXEMPTION.

§ 208.

An American vessel, having been forced by stress of weather into a French port and obliged to land her cargo in order Judicial decisions. to make repairs, was afterwards prevented from relading the cargo, or from taking away anything in exchange for it but produce of the country, for taking which she was afterwards charged with a violation of the act of nonintercourse with France of June 13, 1798. She was found not guilty, and Marshall, C. J., said: "Even if an actual and general war had existed between this country and France, and the plaintiff had been driven into a French port, a part of his cargo seized, and he had been permitted by the officers of the port to sell the residue, and purchase a new cargo, I am of opinion that it would not have been deemed such a traffic with the enemy as would vitiate the policy upon such new cargo."

Hallet & Bowne v. Jenks (1805), 3 Cranch, 210, 219.

Necessity, by reason of being taken and sent in by a belligerent cruiser, excused the entrance into a foreign port while the embargo acts were in force, even though the original crew might have been able to effect a rescue, since such an act would have exposed the vessel to condemnation in case of capture.

Brig Short Staple v. United States (1815), 9 Cranch, 55.

A question was raised in argument as to the effect on jurisdiction of an entrance under stress of weather. It does not appear, however, that the necessity was established, and the question is not discussed in the opinion of the court. (The Alerta v. Moran (1815), 9 Cranch, 359.)

Where goods are brought by superior force, or by inevitable necessity, into the United States, they are not deemed to be so imported as necessarily to attach the right to duties. If, however, such goods. are afterwards sold or consumed in the country, or incorporated in the general mass of its property, they become retroactively liable to the payment of duties.

Brig Concord, 9 Cranch, 387.

A cargo having been libelled for being imported into the United States in violation of the nonintercourse act of March 1, 1809, it was alleged that the entrance of the ship was compelled by stress of weather. Livingston, J., delivering the opinion of the court, held that the allegation was not established, and said: "The necessity must be urgent, and proceed from such a state of things as may be supposed to produce on the mind of a skilful mariner, a well-grounded apprehension of the loss of vessel and cargo, or of the lives of the crew." Johnson, J., who, with Marshall, C. J., and Washington, J., dissented, while not impugning this definition, maintained that the distress was established.

The New York (Feb. 10, 1818), 3 Wheaton, 59, 68.

It seems to have been admitted that if the vessel with the goods on board was forced in by stress of weather the libel could not be maintained, even though they were originally taken on board with an intent unlawfully to import them.

66

Mr. Wheaton, in a note to this case, quotes from the opinion of Sir William Scott, in the case of the Eleanor (Edwards, 159, 160), the following passages as to the legal requisites of the plea of necessity: 'Real and irresistible distress must be at all times a sufficient passport for human beings under any such application of human laws. But if a party is a false mendicant, if he brings into a port a ship or cargo under a pretence which does not exist, the holding out of such a false cause fixes him with a fraudulent purpose. If he did not come in for the only purpose which the law tolerates, he has really come in for one which it prohibits, that of carrying on an interdicted commerce in whole or in part. It is, I presume, an universal rule, that the mere coming into port, though without breaking bulk, is prima facie evidence of an importation. At the same time, this presumption may be rebutted; but it lies on the party to assign the other cause, and if the cause assigned turns out to be false, the first presumption necessarily takes place, and the fraudulent importation is fastened down upon him. The court put the question to the counsel, whether it was meant to be argued, that the bringing a cargo into an interdicted port, under a false pretence, was not a fraudulent importation, and it has not been denied that it is to be so considered. Upon the fact of importation, therefore, there can be no doubt; and, consequently, the great point to which the case is reduced, is the distress which is alleged to have occasioned it. Now, it must be an urgent distress; it must be something of grave necessity; such as is spoken of in our books, where a ship is said to be driven in by stress of weather. It is not sufficient to say it was done to avoid a little bad weather, or in consequence of foul winds; the danger must be such as to cause apprehension in the mind of an honest and firm man. I do not mean to say that there must be an actual physical necessity existing at the moment; a moral necessity would justify the act; where, for instance, the ship had sustained previous damage, so as to render it dangerous to the lives of the persons on board to prosecute the voyage: Such a case, though there might be no existing storm, would be viewed with tenderness; but there must be at least a moral necessity. Then,