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United States Department of State / Index to the executive documents of the House of Representatives for the second session of the fiftieth Congress, 1888-'90
(1888-1889)

Belgium,   pp. 24-50 PDF (11.1 MB)


Page 34


34
FOREIGN RELATIONS.
   As this article is understood it decrees that every private vessel navigating
the
 waters of the Independent State of the Congo up the stream beyond the falls
of Leo-
 poldvTille, will be required to hoist at the stern the flag of the State,
and that if the
 vessel possesses ship's papers establishing her nationality she may in addition
fly the
 flag of her country.
   By the second article of the general act of the Berlin conference all
flags, without
 distinction of nationality, are secured in the right to have free access
to all the waters
 of the Congo and its affluents, including the lakes, and to all the canals
that in the
 future may be cut with the object of uniting the water-courses or the lakes
confined
 in the whole extent of the territories described in article 1 of that instrument;
and
 while the Government of the United States is not a party to that convention,
yet
 the peaceful use of the benefits offered by the Congo Free State to the
world at large
 are sharled by their vessels and their citizens.
 The commerce of the Congo Free State being thus freely opened, the American
 vessel, viewed as a vehicle of transit, may be either a registered vessel
of the mer-
 chant marine of the United States, or an unregistered vessel owned by citizens
of
 the United States, without affecting, it is insisted, her enjoyment of the
guarantied
 privilege of navigation. In either case she has the right to fly the flag
of the United
 States.
 My Government holds it to be a settled principle of international law that
ships not
 only are entitled to carry wherever they go the flag of the country of which
their
 owners are citizens, but that it is their duty, as a rule, to carry such
flag.
 The principle stated, however, would be directly antagonized by a rule that
ves-
 sels navigating the rivers of a particular State when such rivers are open,
as in this
 case, to foreign navigation, should carry the flag of that state.
 This appears to be the purport of article 2 of the royal decree of the 30th
of April,
 1887.
 Its effect is to substitute the flag of the Congo Free State for the national
flag of
 the vessel, by requiring the flag of the State to be displayed at the stern,
as it is evi-
 dent that the flags of the two nations could not both fly from the same
staff, or from
 the same gaff. To do this would be under some circumstances, at least, to
denote
 that the vessel was a prize to the nationality whose colors were uppermost.
 I understand it to be the universal usage that the flag carried on a gaff
at the flag-
 staff at the stern, is the flag of the vessel's nationality.
 The last clause of article 2 of the decree of April 30 implies the assertion
of a right
 on the part of the authorities of the Congo State to determine the sufficiency
of the
 vessel's title to fly her national flag by making it depend on the possession
of papers
 establishing her nationality,.
 "It is maintained by my Government that it is the province of each
Government to
 determine for itself the conditions for the use of its flag upon its vessels,
and the
 United States rule is, that vessels bona fide owned by citizens of the United
States are
 entitled when abroad to carry the flag of the United States, irrespective
of the ques-
 tion of the papers they may have on board.
 I am therefore instructed by my Government to protest against the application
of
 article 2 , of the royal decree of April 30, 1887, to vessels owned by citizens
of the
 United States.
 First. In requiring such vessels to fly the flag of the Independent State
of the Congo
 at the stern. The right to require such vessels to hoist the flag of any
other nation-
 ality than their own is denied.
 Second. In making the right to carry a national flag on such vessels dependent
 upon the possession of papers on board establishing nationality.
      I avail myself, etc.,
                                                                LAMBERT TREE.
                                     No. 31.
                           Mr. Bayard to Mr. Tree.
                                     [Extract.]
No. 96.]                               DEPARTMENT OF STATE,
                                             Washington, January 26, 1888.
   SIRp: Your dispatch (No. 289) of the 6th instant, reporting your action
under my instruction (No, 90) of the 7th ultimo. relativeto the alleged


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