REPRESENTATION OF NON-RESIDENT HEIRS [§ 481

sular convention with Belgium of March 9, 1880, he was accorded the right to appear personally or by delegate on behalf of the absent or minor heirs or creditors, until they were duly represented,1 while Article VI of the treaty of friendship with Persia of December 13, 1856, expressly declared that the effects of the deceased ("in case he has no relations or partners") should "be delivered up to the consul or agent of the nation of which the deceased was a subject or citizen.2 Provisions of certain treaties of commerce, such as were contained in Article XXII of that with Italy of February 26, 1871, permitted citizens of each contracting party to succeed to personal property by will or otherwise within the territory of the other, and to take possession thereof, "either by themselves, or others acting for them." Thus an Italian consular officer, by virtue of the most-favored-nation clause contained in Article XVII of the consular convention with Italy of May 8, 1878,4 is made the legal representative of his non-resident countrymen, who, through his agency, are permitted to take possession of their personal property within the United States. Consequently he is entitled to claim their distributive shares derived either from estates in process of probate in American courts or from other sources, and by his receipt therefor, he is capable of completely discharging all claims of his principals. The exercise of this right has received repeated recognition from local governmental agencies having occasion to make distribution of funds to non-resident alien heirs. It has also been shown marked respect in the workmen's compensation laws of certain American States, such as those of Nebraska and Minnesota, according to which the consular representative is declared to possess in behalf of his non-resident dependent countrymen an exclusive right to settle all claims for compensation, and to receive for distribution all compensation arising thereunder.6

1 Malloy's Treaties, I, 99. 3 Id., I, 976.

2 Id., II, 1373.
4 Id., I, 982.

5 See, for example, In re Tartaglio, 33 N. Y. Supp. 1121, 1123, Stowell's Cases, 360, 361; In re Rosario Carioto, Probate Court of Cook County, Illinois, Chicago Legal News, October 1, 1910, Vol. 42, page 57; In re Paola La Torre, Probate Court of Wayne County, Michigan, May 31, 1911, Ludwig's Consular Treaty Rights, 62; In re Giuseppe Cernyar's Estate, Orphans' Court of Westmoreland County, Pa., No. 58, May Term, 1911, Ludwig's Consular Treaty Rights, 63; In re Estate of Charles Casper, District Court of St. Louis County, Minn., July 17, 1906, Ludwig's Consular Treaty Rights, 72; Vujic v. Youngstown Sheet and Tool Co., 220 Fed. 390. See, also, judgment of the Italian Court of Cassation, Feb. 4, 1907, contained in communication of Mr. Griscom, American Ambassador to Italy, to Mr. Root, Secy. of State, April 29, 1907, For. Rel. 1907, II, 750.

6

According to § 113 (5) of the Employer's Liability Act of Nebraska of

f

§ 482. The Most-Favored-Nation Clause.

The consular conventions to which the United States is a party commonly provide that the consular officers of the contracting parties shall enjoy reciprocally, all of the privileges, exemptions and immunities that are enjoyed by officers of the same rank and quality of the most-favored nation. It is noted elsewhere that, according to the weight of American judicial opinion, in which that of the Department of State appears now to coincide, consular officers of the State whose convention makes such provision, are entitled generally to the benefits of rights accorded by treaty to similar officers of a third State.2

9

SHIPPING AND SEAMEN

a

§ 483. Jurisdiction in Controversies Respecting Seamen. That a seaman when in foreign ports and places should be subjected for certain purposes to the control of the consular representative of the State to which the ship belongs is a matter of common necessity to maritime nations. In response 1913, "The consul-general, consul, vice-consul-general. or vice-consul of the nation of which the employe, whose injury results in death, is a citizen, or the representative of such consul-general, consul, vice-consul-general or viceconsul residing within the State of Nebraska, shall be regarded as the sole legal representative of any alien dependents of the employe, residing outside of the United States, and representing the nationality of the employe. Such consular officer, or his representative, residing in the State of Nebraska, shall have, in behalf of such non-resident dependents, the exclusive right to adjust and settle all claims for compensation provided by this Article and to receive for distribution to such non-resident alien dependents all compensation arising thereunder." Chap. 35, Art. VIII, § 3663, Rev. Stat. of Nebraska, 1913. According to § 23 of the Workmen's Compensation Law of Minnesota, Chap. 467, General L., 1913, as amended in 1915: "In case [of] a deceased employe, for whose injury or death compensation is payable, leaves surviving him an alien dependent or dependents residing outside of the United States, the said judge shall direct payment of all compensation due to the deceased or to his dependents to be made to the duly accredited consular officer of the country of which the beneficiaries are citizens, if such consular officer reside within the State of Minnesota, or if not, to his designated representative residing within the State, and such consular officer or his representative shall be the sole representative of such deceased employe and of such dependents to settle all claims for compensation and to receive for distribution to the persons entitled thereto, all compensation arising hereunder."

1 See, for example, Art. II, convention with Sweden, June 1, 1910, Charles' Treaties, 112.

2

Interpretation of Treaties, Most-favored-nation Clause, Consular and Other Privileges, infra, § 537.

CONTROVERSIES OF SEAMEN

[§ 483

thereto modern consular conventions have made elaborate provision. Those of the United States have been designed to cope with three distinct problems: first, with the jurisdiction over seamen; secondly, the reclamation of deserting seamen; and thirdly, the adjustment of damages suffered at sea and arising in matters of wreck and salvage.1

It has been observed that according to certain conventions of the United States, consular officers are given jurisdiction over the internal order of merchant vessels of their nation, and the exclusive right to take cognizance of any differences which may arise, either at sea or in port, between the captains, officers and crews, without exception, particularly in reference to the adjustment of wages and the execution of contracts. Interference on the part of local authorities is, moreover, forbidden, except when disorder has arisen of a nature such as to disturb tranquillity and public order on shore, or when a person of the country, not belonging to the crew is concerned therein.2 Otherwise the function of such authorities is confined to lending aid, when requested by the consular officers, in arresting and imprisoning, for any cause, any person whose name is inscribed on the crew list.3

By certain treaties the persons arrested at the request of consular officers by the local authorities are to be held in custody "during the whole time of their stay in the port" at the disposal of the latter. The statutory laws of the United States enacted

1 Consular Regulations of the United States (1896), §§ 88, 89 and 90, Moore, Dig., V, 128.

The statutory law of the United States making provision for the exercise by American consular officers of acknowledged rights in respect to American shipping and American seamen have given rise to problems of a domestic rather than an international character.

2 Rights of Jurisdiction, Foreign Merchant Vessels, Matters of Internal Order and Discipline, supra, § 222.

3 The statement in the text is taken from Art. XI, consular convention with Belgium, March 9, 1880, Malloy's Treaties, I, 97, which is followed in Art. XI, consular convention with Roumania, June 17, 1881, id., II, 1515, and in Art. XI, consular convention with Sweden, June 1, 1910, Charles' Treaties, 115. Concerning the Swedish convention see The Ester, 190 Fed. 216.

See, also, the slightly differing provisions of Art. XI, consular convention with Austria-Hungary, July 11, 1870, Malloy's Treaties, I, 42; Art. XIII, consular convention with Germany, id., I, 554; Art. XI, consular convention with the Netherlands, May 23, 1878, id., II, 1258; Art. I, supplemental consular convention with Italy, Feb. 24, 1881, id., I, 983; Art. XXIII, treaty of friendship with Spain, July 3, 1902, id., II, 1708. Respecting the convention with the Netherlands, see The Albergen, 223 Fed. 443.

See analysis of earlier treaties of the United States by Chief Justice Waite, in Wildenhus's Case, 120 U. S. 1, 13-17.

See case of intervention by the American Consul-General at Rio de Janeiro in 1908, notwithstanding the absence of any appropriate treaty, For. Rel. 1909, 41-42.

This provision is found, for example, in Art. VIII, consular convention

for the purpose of executing its treaties,1 permit an arrested seaman to be held in custody for a period not to exceed two months, and that (according to the opinion of the Supreme Court of the United States), irrespective of the departure of the ship prior to the expiration of such time.2

In the absence of treaty the exercise of jurisdiction by an American court of admiralty in a contest between a foreign seaman and the master of a foreign ship and relating to a maritime contract is deemed to be within the discretion of the tribunal. The Supreme Court of the United States has, however, declared that admiralty courts will not interfere between the parties in such cases "unless there is special reason for doing so, and will require the foreign consul to be notified, and, though not absolutely bound by, will always pay due respect to, his wishes as to taking jurisdiction." 3

b

§ 484. Reclamation of Deserting Seamen.

It has been laid down as a general proposition that the surrender of deserting seamen cannot, in the absence of treaty, be granted by the authorities of the United States. The statutory law which

with France, Feb. 23, 1853, Malloy's Treaties, I, 531; Art. I, supplemental convention with Italy, Feb. 24, 1881, id., I, 983; and in Art. XXIII, treaty of friendship with Spain, July 3, 1902, id., II, 1708.

1 Rev. Stat. §§ 4079, 4080 and 4081.

But see the repeal in part of § 4081, by the Act of March 4, 1915, Chap. 153, § 17, 38 Stat. 1184, U. S. Comp. Stat. 1918, § 8382b, in so far as the earlier statute related to the arrest and imprisonment of officers and seamen charged with desertion from merchant vessels of foreign nations in the United States and Territories and possessions thereof.

2 Dallemagne v. Moisan, 197 U. S. 169, Moore, Dig., V, 129. In the same case it was held that while the statute required application for the arrest of a seaman to be made "to any court of record of the United States, or any Judge thereof, or to any commissioner appointed under the laws of the United States", and the issuance of the warrant of arrest to a United States Marshal, and hence rendered irregular an application to and an arrest by a local chief of police, the bringing of a seaman so arrested before a United States court on habeas corpus rendered it the duty of such tribunal to examine the case and commit the seaman to prison, if he came within the terms of the treaty, and served to render unimportant the irregularity of the arrest.

3 The Belgenland, 114 U. S. 355, 364. See, also, The Lady Furness, 84 Fed. 679; The Troop, 128 Fed. 856, where an American court of admiralty entertained jurisdiction after the appropriate British consul disclaimed authority to adjudicate the question as respecting the duty of the master of a British ship to furnish a German seaman with proper care, treatment and supplies after his accidental injury in the service of the ship. Respecting the Act of December 21, 1898, 30 Stat. 763, relating to the protection of American seamen, and the application thereof to the shipment of seamen on foreign vessels in American ports, see Patterson v. Bark Eudora, 190 U. S. 169.

See opinion of the court in Tucker v. Alexandroff, 183 U. S. 424, 431, citing Moore, Extradition, § 408; also dissenting opinions of Justices Gray,

RECLAMATION OF DESERTING SEAMEN IS 484

formerly made provision for the recovery of deserters from foreign vessels, was limited in its scope to cases where applications for arrest emanated from consular officers of foreign States with which appropriate conventions had been concluded.1 The conduct of an American consul in causing, in 1899, the arrest and imprisonment in the Argentine Republic of a deserter from an American vessel of war, was not approved by the Department of State, because of the absence of a treaty with that country providing for the arrest in the United States of deserters from Argentine vessels, and of the resulting inability of the Government to give assurance of reciprocity.2

Numerous conventions of the United States have, in the past, provided for the reclamation of deserting seamen through the consular service. According to the arrangement with Sweden of 1910, the consular officer was permitted to cause the arrest of officers, sailors and "all other persons making part of the crews in any matter whatever, of ships of war or merchant vessels of their nation, who may be guilty, or be accused, of having deserted said ships and vessels, for the purpose of sending them on board or back to their country." 3

In 1915, the United States, through the enactment of the Seamen's Act, departed from its previous policy established by consular conventions in harmony with the statutory law. That Act announced that in the judgment of Congress, Articles in treaties and conventions of the United States, in so far as they provided for the arrest and imprisonment of officers and seamen deserting Harlan, White, and Chief Justice Fuller, id., 467; Opinions of Mr. Cushing, Atty.-Gen., 6 Ops. Attys.-Gen., 148 and 6 Ops. Attys.-Gen., 209; also Moore Dig., IV, 417 and documents there cited; Mr. Hunter, Acting Secy. of State, to Mr. Osborn, Minister to the Argentine Republic, No. 190, Nov. 6, 1883, MS. Inst. Argentine Republic, XVI, 292, Moore, Dig., IV, 420.

1 See statement in Moore, Dig., IV, 418; also Mr. Adee, Acting Secy. of State, to Duke de Arcos, Oct. 9, 1901, informing the latter of the absence of any law or regulation of the United States, providing for the punishment of deserters from the vessel of a foreign country with which the United States had no treaty, For. Rel. 1901, 484.

See Rev. Stat. § 5280. Respecting the operation of the statute in relation to the treaties, see Opinion of Mr. Cushing, Atty.-Gen., 6 Ops. Attys.-Gen. 148; Opinions of Mr. Black, Atty.-Gen., 9 Ops. Attys.-Gen. 96 and 246; Tucker v. Alexandroff, 183 U. S. 424, Moore, Dig., IV, 422-424; United States v. Minges, 16 Fed. 657; United States v. Kelly, 108 Fed. 538. See, also, enactment of the Philippine Commission, Jan. 16, 1906, providing for the arrest, examination and return of seamen deserting from foreign vessels, For. Rel. 1906, II, 941-942.

2 Mr. Hay, Secy. of State, to Mr. Buchanan, Minister to Argentine Republic, No. 476, April 4, 1899, MS. Inst. Argentine Republic, XVII, 453, Moore, Dig., IV, 422.

3 Article XII, consular convention with Sweden, June 1, 1910, Charles' Treaties, 116. This Article was terminated by agreement in 1920.