Imágenes de páginas
PDF
EPUB

37 ور

considered as a political offense; that as the mutineers were brought on shore and delivered to the Argentine authorities because of the inability to retain them on board the vessel, their return to the representative of Chile could not be granted without violating the exemption of political offenders from extradition; that their delivery up would also violate the principle of public law, which protects prisoners of war, whether public or insurrectionary, from surrender; and that it is a rule of international law that where acts of hostility are committed by foreign insurgents in territorial waters of another state, only the vessels or things taken from them, and not the persons, are to be delivered up.

Extradition of deserters.—In regard to the arrest or extradition of deserters from ships of war it has been held, both by the State Department and the federal courts, that in the absence of treaties to that effect officials of the United States cannot at home arrest foreign seamen as deserters from foreign vessels even upon the request of the consular or other officers of foreign governments, and that it is naturally improper in reciprocal cases for one consular or other authorities to cause foreign officials to arrest deserters from our ships in the absence of treaties authorizing and providing for such arrest.

Case of Alexandroff.-In the case of Tucker vs. Alexandroff there were circumstances surrounding this case which involved several interesting questions as to the return and extradition of a deserter, so that it is considered desirable to narrate the matter in full as given by Moore in his digest."

“Leo Alexandroff, a conscript in the Russian naval service, was sent in October, 1899, as one of the detail of 53 men under command of an officer, from Russia to Philadelphia, to take possession of and man the Russian cruiser · Variag,'

[ocr errors]

38

[ocr errors]

37 Moore's Digest, Vol. 4, pp. 351-352. 38 Moore's Digest, Vol. 4, pp. 423-424.

then under construction by the firm of Cramp & Sons in that city. By the contract between the Russian Government and the builders it was agreed that the vessel to be built, whether finished or unfinished, and all materials intended for her construction and brought upon the premises of the contractors, should immediately become the exclusive property of the Russian Ministry of Marine; that the flag of the Imperial Russian Government should be hoisted on the ship, whenever desired by the board of inspection, as evidence that it was the government's exclusive property; and that the Russian Ministry of Marine might at any time appoint an officer to take possession of the ship or materials, whether finished or unfinished, subject to the lien of the contractors for any part of the value remaining unpaid. The construction of the vessel was to be paid for in instalments, but a percentage of each instalment was to be withheld, and the final payment was not to be made until the ship had made a successful trial trip and had been turned over to the Imperial Russian Government; and that the government was at liberty, unless the vessel should fulfil certain requirements as to draft and speed, to reject her. The Variag' was still on the stocks when the detail of men arrived in Philadelphia. She was launched in October on November, 1899, and was lying in the stream still under construction, not having been accepted by the Russian Government, when on April 20, 1900, Alexandroff went to New York and declared his intention to become a citizen of the United States. He was subsequently arrested upon the written request of the Russian vice-consul, and on June 1, 1900, was committed on a charge of desertion. By Article IX of the treaty between the United States and Russia of 1832, the consular representatives of the contracting parties were authorized to require the assistance of the local authorities for the recovery of 'deserters from the ships of war and merchant vessels of their country'; and it was stipulated that for this purpose they should apply to the competent tribunals and ‘in writing demand said deserters, proving, by the exhibition of the registers of the vessels the rolls of the crews, or by other official documents established that such individuals formed part of the crews.' Alexandroff was committed under Section 5280, Revised Statutes of the United States, which provides in language similar to that just quoted for the recovery of deserters from vessels of governments having treaties with the United States on the subject. It was contended that the treaty and statute were inapplicable to Alexandroff for the reasons (1) that the Variag' was not yet a Russian ship of war, (2) that he was not a deserter from such ship, and (3) that his membership of the crew was not proved by the exhibition of the register of the vessel, her crew roll, or by any official document. It was held that the Variag,' inasmuch as she had been launched and was lying in the stream when Alexandroff deserted, was a ship within the meaning of the treaty; that she was also a Russian ship

of war within the meaning of the treaty, notwithstanding that • she had not been finally accepted and taken possession of by

the Russian Government, and that the Russian flag had never been hoisted upon her; that Alexandroff consequently was a deserter from a Russian ship of war within the meaning of the treaty; and that, as it was admitted and appeared by the record in the case, Alexandroff came to the United States as a member of the Russian navy for the express purpose of becoming one of the crew of the 'Variag,' it could not properly be objected in his behalf that no official documents were produced, especially as it appeared that on the trial of the case below, Alexandroff, through his counsel, waived the production of the passport issued by the Russian Government to the men detailed to man the vessel.” 39 It was also held that

[ocr errors]

Also Moore's

39 Tucker vs. Alexandroff (1902), 183 U. S. 424. Digest, Vol. 4, pp. 422-423; Vol. 5, p. 249.

sover

treaties should be interpreted “in a spirit of uberrima fides," and in a manner to carry out their manifest purpose.

The courts as a rule hold the exemption of a foreign vessel of war from the jurisdiction of the port on the ground of its being the property of the state engaged in public business. This principle is applied to other property state-owned and in or for public use. English courts, in the case of Vavasseur vs. Krupp, decided that they had no jurisdiction to interfere with the property of a foreign sovereign, more especially when the property is for or in public use. Servitudes.—There are certain restrictions

upon

the eignty and jurisdiction of states commonly known as servitudes. Servitudes concern states only, and directly, not individuals. The right to use a port or an island for a coaling station would constitute a servitude. The requirement that the port of Antivari, and all the waters of Montenegro, shall remain closed to the ships of war of all nations is a servitude imposed by the Treaty of Berlin. The right of fisheries in foreign waters, such as formerly enjoyed by France in the waters of Newfoundland, is a servitude of an economic form." The stipulation in the Treaty of Berlin that Montenegro shall have neither ships of war nor flag of war is another form of servitude.

By the same treaty all the fortresses and fortifications on the Danube River from the Iron Gates to the mouths of the river, were to be razed and no new ones erected. No vessel of war was to navigate the Danube below the Iron Gates, with the exception of vessels of light tonnage in the service of the river police and customs. The stationnaires of the powers

. at the mouths of the Danube may, however, ascend the river as far as Galatz.

40

40 A. J. I. L., Vol. 2, No. 4, pp. 414 and 420.

CHAPTER IV.

JURISDICTION UPON THE HIGH SEAS AND OTHER WATERS.—

IDENTIFICATION OF VESSELS.—PIRACY.—INTEROCEANIC
CANALS.

What is meant by the high seas.-By the term high seas in municipal and international law is meant all of that continuous body of salt water in the world which is navigable in its character and which lies outside of the territorial waters and maritime belts of the various countries.

In a general way this extent of salt water is divided into what may be called the independent seas and the dependent seas. By the independent seas are meant the five great oceans or basins communicating by large openings with one another, and which in area constitute over ninety-three per cent or almost the whole of the salt water of the globe. The dependent seas, like the Mediterranean and Black Seas, on the other hand, constitute less than seven per cent of the salt water area of the world. These dependent seas, like the Mediterranean, have still other dependent seas, like the Adriatic, and so the subdivisions go on. Even the enclosure of waters by the territory of one or more states does not remove its area from within the expression of “high seas," provided a navigable connection of salt water exists between such sea or waters and the general body of salt water, no matter even if such navigable connection be itself part of one or more bordering states.

The Sea of Marmora and Bering Sea, for instance, come under the term of the high seas, while the situation of the

1

[blocks in formation]
« AnteriorContinuar »