Executive Order 7729—Amending the Instructions to Diplomatic Officers and the Consular Regulations

By virtue of and pursuant to the authority vested in me by section 1752 of the Revised Statutes (22 US.C. § 132), it is ordered that the Instructions to Diplomatic Officers and the Consular Regulations be, and they are hereby, amended as follows:

1. Section XV-8 of the Instructions to Diplomatic Officers is prescribed as follows:

"Condolences, congratulations, felicitations, etc. When communicating condolences, congratulations, felicitations, etc., diplomatic officers will be governed by the rules on the subject established by the Department of State from time to time."

2. Article XII of the Consular Regulations is amended to read as follows:

SHIPMENT OF SEAMEN

189. Shipment of seamen in foreign ports. (a) Every master of a merchant vessel of the United States who engages any seaman at a place out of the United States, in which there is a consular officer shall, before carrying such seaman to sea, procure the sanction of such consular officer, and shall engage seamen in his presence: and the rules governing the engagement of seamen before a shipping commissioner in the United States shall apply to such engagements made before a consular officer; and upon every such engagement the consular officer shall endorse upon the articles of agreement his sanction thereof, and an attestation to the effect that they have been signed in his presence and otherwise duly made [form no. 16]. (46 U.S.C. §570.)

Every master who engages any seaman in any place in which there is a consular officer, otherwise than as required by the preceding paragraph, shall incur a penalty of not more than $100, for which penalty the vessel shall be held liable. (46 U.S.C. §571.)

All shipments of seamen made contrary to the provisions of any act of Congress shall be void; and any seaman so shipped may leave the service at any time, and shall be entitled to recover the highest rate of wages of the port from which the seaman was shipped, or the sum agreed to be given him at his shipment. (46 U.S.C. § 578.) The provisions of this paragraph are not applicable to contracts whereby fishermen ship for a share in the catch. (25 Fed. Rep. 856; 46 U.S.C. §§ 531,544.)

(b) Shipments on provisionally registered or undocumented American-owned vessels. Vessels granted provisional certificates of registry (sec. 342) are subject to the laws of the United States regarding shipment, discharge, relief, and transportation of seamen. Such vessels are not subject to the laws of the United States relating to officers, inspection, and measurement until they arrive in ports of the United States. (46 U.S.C. § 12.)

In the case of undocumented American-owned vessels abroad, incapable of proceeding to the United States (sec. 343), the crews are usually made up of men who are not American citizens or American seamen. Seamen of this class when not serving under a contract made in the United States are not regarded as within the jurisdiction of the consular officer as to their shipment or discharge. Seamen engaging on such vessels who are American citizens, and foreigners who have acquired and maintained the status of American seamen are to be shipped and discharged before the consular officer in the same manner as sea-, men on regularly documented vessels,

(c) Shipments at ports where no consular officer or at sea. Where seamen are shipped at ports where there is no consular officer or at sea, report is made to the consular officer at the first port at which the vessel arrives and the seamen are then formally shipped before such officer, who will endorse the shipping articles and crew list as required (form no. 16), and indicate carefully in such endorsement the date when wages commenced prior to the date of formal shipment before the consular officer.

(d) Shipments not required to be made before consular officer. The shipment of seamen on vessels engaged in the trade between the United States and the Dominion of Canada, or Newfoundland, or the West Indies, or the Republic of Mexico, is not required to be made before a consular officer (46 U.S.C. §§ 563-564); nor are seamen on fishing vessels or on enrolled or licensed yachts required to be shipped before such officers. Upon request, however, seamen on vessels of the United States engaged in any trade may be shipped before a consular officer.

190. Obligation to fill vacancies in crew. In case of desertion or casualty resulting in the loss of one or more of the seamen, the master must ship, if obtainable, a number equal to the number of those whose services he has been deprived of by desertion or casualty, who must be of the same or higher grade or rating with those whose places they fill, and report the same to the United States consul at the first port at which he shall arrive. This section shall not apply to fishing or whaling vessels or yachts. (46 U.S.C. § 569.)

191. Voyage or term for which seamen may be shipped. Every master of a vessel in the foreign trade may engage any seaman at any port out of the United States, in the manner provided by law, to serve for one or more round trips from and to the port of departure, or for a definite time, whatever the destination, and the master of a vessel clearing from a port of the United States with one or more seamen engaged in a foreign port as herein provided shall not be required to reship in a port of the United States the seamen so engaged, or to give bond to produce said seamen before a boarding officer on the return of said vessel to the United States. (46 U.S.C. § 573.) However, upon his next departure from an American port the master must, in accordance with law, have in his crew the required proportion of American citizens. (46 U.S.C. Supp. §§ 672a, 1132.) If occasion demands, those requirements should be called to the attention of the master.

192. Seamen must understand contract. A consular officer will take care that each engagement of a seaman is signed by the seaman in his presence or in the presence of some duly authorized employee of the consular office, and that all the terms of the contract and the exact nature of the work for which the seaman is engaged are understood by him. A seaman is not bound by a clause in the contract which was not read to him or explained to him. (15 Fed. Rep. 621; 38 Fed. Rep. 258.)

193. Seamen to produce documents. Before signing articles of agreement, every seaman shall produce a continuous discharge book or a certificate of identification if he possesses one, as well as his license or certificate of service, in order that the serial numbers may be entered in the shipping articles. Seamen who do not possess a continuous discharge book or certificate of identification may be employed at a foreign port or place, in which case they shall be furnished a continuous discharge book or a certificate of identification at the first port of entry in the United States or its territories at which the vessel arrives after such seamen are so employed. (2 F.R. 703, 707.)

194. Shipping articles. Every American vessel bound on a foreign voyage is required to obtain from the collector of customs of the district from which clearance is made a true and certified copy of the shipping articles, containing the names of the crew, which shall be written in a uniform hand, without erasures or interlineations. The shipping articles (articles of agreement) are deemed to contain all the conditions of the contract with the crew as to their service, pay, voyage, and all other things, and shall be produced by the master, and laid before any consular officer of the United States, whenever he may deem their contents necessary to enable him to discharge the duties imposed upon him by law toward any mariner applying to him for his aid or assistance. All interlineations, erasures, or writing in a hand different from that in which such duplicates were originally made, shall be deemed fraudulent alterations, working no change in such papers, unless satisfactorily explained in a manner consistent with innocent purposes and the provisions of law which guard the rights of mariners. (46 U.S.C. § 676.)

Shipping articles (Commerce forms 705 and 705A) are made out in triplicate. One of the copies is retained by the shipping commissioner, and the original and a copy given to the master who shall enter therein any changes made in the crew during the voyage. In case of the paying off of any members of the crew during the voyage, they shall be required to sign the mutual release on both the original and the duplicate of the articles whether discharged before a shipping commissioner in an American port or before an American consul in a foreign port. At the completion of the voyage, when the crew is paid off, the mutual release on both the original and the duplicate of the articles must be signed by all members of the crew; and the original copy, which must contain a complete record of the entries made in all continuous discharge books during the voyage and the entries made in all certificates of discharge (Commerce form 718-A) issued during the voyage to seamen holding certificates of identification, shall be forwarded to the Bureau of Marine Inspection and Navigation, Department of Commerce, Washington, D.C. The duplicate copy shall be retained by the shipping commissioner. (2 F.R. 707.)

The shipping articles, the evidence of the seaman's contract, are construed with great liberality and most favorably to the seaman. A seaman may show by parol that untrue statements were made to induce him to sign and that the voyage and time pf service described in the articles were different from the voyage and time of service described to him before he signed. (Fed. Cas. 3530,10667.) Shipping articles cannot lawfully provide forfeiture of wages in excess of that provided by statute. (27 Fed. Rep. 567.)

Additions to shipping articles. Consular officers will be careful to enter the shipment of seamen on the original and copy of the articles until the space is exhausted; and whenever it becomes necessary to use additional sheets, they should be firmly attached in duplicate to the articles in such manner that the new sheets cannot be separated from the articles without discovery or mutilation.

New articles. When it is necessary to grant new articles to a vessel, the crew of which was named in articles then closed, the consular officer shall transmit to the Bureau of Marine Inspection and Navigation, Department of Commerce, Washington, D.C., the properly completed original of the articles then closed, as well as the certificate under his hand and seal (form no. 21), specifying the seamen to whose discharge he has consented, and also those who have died, absconded, or been forcibly impressed into other service, and he shall retain the properly completed duplicate of the same articles. (See sec. 201.)

195. Status of shipping agents. No undue facilities are to be granted to any shipping agent to the exclusion of others of good reputation. The master is entitled, in the absence of controlling local regulations, to employ any agent he may see fit to obtain seamen for shipment on his vessel. The consular officer has no authority to interfere, nor to confer upon any shipping agent privileges which are not conceded to others. He is also without authority to designate such an agent as specially employed by the consular office, or to permit any agent to use a title, such as "American shipping agent" or "United States shipping agent", indicative of a special relation to the consular office. Although it is expected that a consular officer will inform himself as to the reputation of such agents, and will at the request of a master recommend such as he believes to be efficient and trustworthy, he is forbidden to insist upon the employment of any particular agent. Any instance of such partiality or favoritism which shall be proved to the satisfaction of the Department of State will incur its marked disapproval.

3. Article XIII of the Consular Regulations is amended to read as follows:

DISCHARGE OF SEAMEN

199. Definitions. (a) American seamen. For the purposes of these regulations the terms "American seamen" and "seamen or mariners of the United States" are synonymous. The following are to be regarded as American seamen within the meaning of the laws relating to the discharge, wages, and extra wages of seamen:

(1) Seamen who are citizens of the United States, shipped in an American vessel, whether in a port of the United States or in a foreign port.

(2) Seamen who are aliens, shipped in an American vessel, in a port of the United States. (See also sec. 264.)

Except as otherwise noted in these regulations, American seamen engaged on fishing or whaling vessels or yachts are considered to have the same rights and to be under the same obligations as seamen on merchant vessels of the United States. (Secs. 189-190; 46 U.S.C. §§ 531,544.)

A master of an American vessel is a seaman within the intent of the laws relating to discharge, wages, extra wages, relief, and transportation. (11 Op. Att. Gen. 458; 3 Sumn. 209.) In case of destitution abroad, he is entitled to the same relief and transportation as other American seamen.

The principles which are maintained by this Government in regard to the protection as distinguished from the relief of seamen, are well settled. It is held that the circumstance that the vessel is American is evidence that the seamen on board are also American, and that in every regularly documented merchant vessel, the crew will find their protection in the flag that covers them. (140 U.S. 453.)

When a seaman has been shipped in a port of the United States, a statement in the articles or in the seaman's continuous discharge book or certificate of identification that he is an American citizen is prima-facie evidence for the purposes of relief and protection that the seaman is, by birth or naturalization, a citizen. (10 C. Cis. 454.)

(b) Crew. The crew Of a vessel—the ship's company—in a general sense, comprises all persons who, in pursuance of some contract or arrangement with the owner or master, are on board the same, aiding in the navigation thereof. (49 Fed. Rep. 287.) Every person having the command of any vessel belonging to any citizen of the United States shall be deemed to be the "master" thereof; and every person (apprentices excepted) who shall be employed or engaged to serve in any capacity on board the same shall be deemed and taken to be a "seaman". (46 U.S.C. § 713.)

200. Authority of consular officers to discharge seamen. A consular officer is authorized to discharge a seaman upon the application of the master of any vessel or upon the application of any seaman for his own discharge, if it appears to such officer that the seaman has completed his shipping agreement or is entitled to his discharge under any act of Congress or according to the general principles or usages of maritime law as recognized in the United States. (46 U.S.C. § 682.)

201. Obligation of master to procure discharge by consular officer; penalty for not returning member of crew. The master of every vessel bound on a foreign voyage or engaged in the whale fishery is required by law to exhibit the certified copy of the crew list to the first boarding officer at the first port in the United States at which he shall arrive on his return, and also to produce the persons named in the crew list. For each failure to produce any person on the certified copy of the crew list the master and owner of the vessel are severally liable to a penalty of $400. However, the penalty is not incurred for failure to produce any person named in the crew list who has been discharged in a foreign country with the written consent of a consular officer, certified under his hand and official seal, to be produced to the collector with the other persons composing the crew, nor on account of any such person dying, absconding, or being forcibly impressed into other service, of which satisfactory proof shall also be exhibited to the collector of the port. (46 U.S.C. § 677.) The master cannot lawfully discharge a seaman in a foreign port without the intervention of the consular officer; and it is not material in such case that the discharge is made with the seaman's consent or that he has misconducted himself, or is not a citizen of the United States. (7 Op. Att. Gen. 349.) (See also sec. 218.)

Whoever, being master or commander of a vessel of the United States, while abroad, maliciously and without justifiable cause forces any officer or seaman of his vessel on shore in order to leave him behind in any foreign port or place, or refuses to bring home again all such officers and seamen of such vessel whom he carried out with him, as are in a condition to return and willing to return, when he is ready to proceed on his homeward voyage, shall be fined not more than $500, or imprisoned not more than six months, or both. (18 U.S.C. § 486.)

202. Cases in which seamen may be discharged. The usual cases in which American seamen are discharged in a foreign port by consular officers, under the provisions of statute and the principles of maritime law, may be stated as follows:

(1) For misconduct of the seaman. (36 Fed. Rep. 442.) (See also secs. 204, 205.)

(2) On the sale of an American vessel abroad. (46 U.S.C. §684.) (See also secs. 251, 252.)

(3) When the seaman has completed his shipping agreement. (46 U.S.C. §§ 682, 684.)

(4) Upon the complaint of the seaman that the voyage is continued contrary to agreement and the consular officer is satisfied that the voyage has been designedly and unnecessarily prolonged in violation of the article of shipment. (46 U.S.C. § 685.) (See also sec. 243b.)

(5) For cruel and unusual treatment. (46 U.S.C. §§ 703, 712.) (See also secs. 205, 243b.)

(6) After a report by inspectors that the vessel was sent to sea unsuitably provided in any important or essential particular, by neglect or design, and the consular officer approves such finding, and the crew, or any of them, request a discharge. However, if the inspectors report that, in their opinion, the difficulties or deficiencies found to exist have been the result of mistake or accident, and could not, in the exercise of ordinary care, have been known and provided against before the sailing of the vessel, and the master shall in a reasonable time remove or remedy the causes of complaint, the crew shall then remain and discharge their duty. (46 U.S.C. § 658.) (See also sec. 243c.)

(7) On account of illness or injury incapacitating the seaman for service. (46 U.S.C. § 683.) (See also sec. 207.)

(8) By mutual consent of master and seaman. (46 U.S.C. § 683.) (See also sec. 243a.)

(9) When the seaman is arrested and awaits trial for offense against local laws abroad or is imprisoned for such an offense, or is held as a witness; when also he is sent to the United States as a prisoner or witness.

(10) When a seaman is transferred to another vessel in a foreign port, or when he is promoted to be an officer of the vessel, or when an officer is disrated to the grade of seaman, or when any member of the crew is disrated. (9 Fed. Rep. 222; 290 Fed. Rep. 806.)

(12) When the master is superseded by the majority owners and a new master appointed (46 U.S.C. § 227), or when he is removed by the consular officer. This clause does not refer to the crew, who are not entitled to be discharged when the master is thus superseded or removed. (See sec. 208.)

(13) When the master fails to comply with the following provision of law:

"In all merchant vessels of the United States of more than one hundred tons gross, excepting those navigating rivers, harbors, lakes (other than Great Lakes), bays, sounds, bayous, and canals, exclusively, the licensed officers and sailors, coal passers, firemen, oilers, and water tenders shall, while at sea, be divided into at least three watches, which shall be kept on duty successively for the performance of ordinary work incident to the sailing and management of the vessel. The seamen shall not be shipped to work alternately in the fireroom and on deck, nor shall those shipped for deck duty be required to work in the fireroom, or vice versa; nor shall any licensed officer or seamen in the deck or engine department be required to work more than eight hours in one day; but these provisions shall not limit either the authority of the master or other officer or the obedience of the seamen when in the judgment of the master or other officer the whole or any part of the crew are needed for maneuvering, shifting berth, mooring, or unmooring, the vessel or the performance of work necessary for the safety of the vessel, her passengers, crew, and cargo, or for the saving of life aboard other vessels in jeopardy, or when in port or at sea, from requiring the whole or any part of the crew to participate in the performance of fire, lifeboat, or other drills. While such vessel is in a safe harbor no seaman shall be required to do any unnecessary work on Sundays or the following-named days: New Year's Day, the Fourth of July, Labor Day, Thanksgiving Day, and Christmas Day, but this shall not prevent the dispatch of a vessel on regular schedule or when ready to proceed on her voyage. And at all times while such vessel is in a safe harbor, eight hours, inclusive of the anchor watch, shall constitute a day's work. Whenever the master of any vessel shall fail to comply with this section and the regulation issued thereunder, the owner shall be liable to a penalty not to exceed $500, and the seamen shall be entitled to discharge from such vessel and to receive the wages earned. But this section shall not apply to vessels engaged in salvage operations: Provided, That in all tugs and barges subject to this section when engaged on a voyage of less than six hundred miles, the licensed officers and members of crews other than coal pass-ere, firemen, oilers, and water tenders may, while at sea, be divided into not less than two watches, but nothing in this proviso shall be construed as repealing any part of section 4463 of the Revised Statutes." (46 U.S.C. Supp. § 673.)

203. Records regarding discharge. Upon the discharge of any seaman in a foreign port, the master shall make the proper entries in the continuous discharge book and on the ship's articles [sec. 194], and such entries shall be attested to by the consular officer. If the seaman possesses a certificate of identification the master of the vessel shall issue to the seaman a certificate of discharge on Commerce form 718-A and make the required entries therein which shall be attested by the consular officer. If the seaman has lost his continuous discharge book or certificate of identification, the master shall furnish him with a temporary certificate of discharge. Commerce form 719-A, attested to by the consular officer and note this fact on the articles. (2 F.R. 706.)

Consular form no. 17, certificate of discharge of seamen to be attached to crew list and shipping articles, shall be executed by the consular officer and fastened securely to the crew list and shipping articles.

204. Discharge without consent of seamen. It is the general policy of the laws of the United States to discountenance the discharge of seamen in a foreign port. (Fed. Cas. 5244, 10262.)

When the application for the discharge of a seaman is made by the master, it is the duty of the consular officer to inquire carefully into the facts and circumstances, and to satisfy himself that good and substantial reasons exist for a discharge before granting the application. (59 Fed. Rep. 790; 299 Fed. Rep. 977.)

A seaman is not to be discharged for slight or venial offenses, nor for a single offense, unless of a very aggravated character. If the seaman is charged with insubordination, it should satisfactorily appear that he is incorrigibly disobedient and will not submit to his duty, and that he persists in such conduct. Gross dishonesty, habitual drunkenness, and a disposition to instigate broils and quarrels to the destruction of the discipline of the crew have been held to be sufficient ground for discharge. But it is otherwise if the offense is temporary, and if the offender is repentant and is willing to change his conduct and return to duty. (Fed. Cas. 3234, 6955; 22 Fed. Rep. 927; 36 Fed. Rep. 442.)

205. Discharge for misconduct or incompetence. Generally, the grounds on which a seaman may be discharged, when insubordination or bad conduct is alleged, are such as amount to a disqualification and show him to be an unsafe or unfit man to have on board a vessel. (Fed. Cas. 13117.) The consular officer must be satisfied that the officer or seaman is incompetent to perform the work he has contracted to do, or that he has been guilty of such acts of insubordination as to make him dangerous to a man of ordinary firmness, or that his habitual misconduct (such as drunkenness, for instance) amounts to unfitness for duty, or, if an officer, that he has been guilty of habitual cruelty. Except for good reasons and in extraordinary circumstances, seamen should not be discharged at a foreign port when the vessel is homeward bound.

206. Discharge for cruel or unusual treatment. In all cases where complaint is made by a seaman of cruel or unusual treatment, the consular officer shall inquire into the facts and upon his being satisfied as to the truth and justice of the complaint, he may discharge the seaman and shall require the master to pay to such seaman one month's wages over and above the wages due at the time of discharge, and to provide him with adequate employment on board some other vessel, or provide him with a passage on board some other vessel bound to the port from which the seaman was originally shipped, or to the most convenient port of entry in the United States, or to a port agreed to by the seaman. (46 U.S.C. § 685.) The officer discharging said seaman shall enter upon the ship's articles, crew list, and official log, the cause of such discharge and the particulars in which the cruel or unusual treatment consisted and subscribe his name thereto officially. He shall read the entry made in the official log to the master, and the master's reply thereto, if any, shall likewise be entered and subscribed in the same manner. (46 U.S.C. § 703.)

In all cases where a seaman has been charged with desertion and the circumstances claimed by the master to establish the desertion are later found to be the result of cruel or unusual treatment of the seaman, the consular officer should take action as directed in the preceding paragraph. If such action is not possible, he should supply the facts in the case to the consular officer at the next port at which the vessel is scheduled to arrive and to the Department for transmission through the Department of Commerce to the shipping commissioner. The rights of the seaman are not dependent upon the fact he has deserted, but upon the treatment he has received. (Sec. 294.)

207. Discharge for illness or injury. Whenever a seaman is discharged on account of illness or injury incapacitating him for service, the expenses of his maintenance and return to the United States shall be paid from the fund for the maintenance and transportation of destitute American seamen. At the discretion of the Secretary of Commerce, and under such regulations as he may prescribe, if any seaman incapacitated for service by injury or illness is on board a vessel so situated that a prompt discharge requiring a personal appearance of the master of the vessel before an American consular officer is impracticable, such seaman may be sent to a consular officer who shall care for him and defray the cost of his maintenance and transportation. (46 U.S.C. § 683.)

208. Change or removal of master. (a) By owners. Any person or body corporate having more than one-half ownership of any vessel shall have the same power to remove a master, who is also part owner of such vessel, as such majority owners have to remove a master who is not an owner. This provision does not apply where there is a valid written agreement subsisting, by virtue of which the master would be entitled to possession. (46 U.S.C. § 227.) Consular officers are occasionally called upon to assist in the removal of a master under this statute. They will not hesitate to lend their services under such circumstances, but it is desirable for their own protection that they should satisfy themselves that the parties applying to them are duly authorized for the purpose. It is advisable, also, if there is time to do so, to refer the case to the Department of State for instructions.

(b). By consular officer. The removal of a master, without prior authorization of the owners of the vessel as prescribed by the preceding paragraph, should not be effected except where the emergency is so great that action must be taken before such authorization can be procured by telegraph. If the master is seriously ill or is disabled by a permanent injury, the consular officer may remove him, although any action in this regard should ordinarily be undertaken with the consent of the master or of the owners. Other instances which may call for the removal of the master and the appointment of another to complete the voyage include the insanity of the master, his gross incompetency endangering the lives of the passengers or crew, his misconduct or collusion with others to the serious injury of the owners or insurers, or when he has been guilty of flagrant abuse of passengers or crew. However, the grave responsibility attaching to the exercise of this extreme power will suggest to consular officers that any final action should be taken only after careful deliberation and for good and sufficient cause, and, insofar as possible, after receiving authorization either directly from the owners of the vessel or a majority thereof or their agents, or through the Department of State. Any action that may be taken by consular officers in connection with the removal of masters of vessels should be reported promptly and fully to the Department of State.

4. Sections 58, 196 to 198, inclusive, 209 to 217, inclusive, and 254 of the Consular Regulations are canceled.

FRANKLIN D ROOSEVELT

The White House,
October 16, 1937.