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ADMINISTRATION OF ESTATES

[§ 480

to render, therefore, a foreign consul merely a person eligible to act as administrator when no one having a prior right under the local law was competent or able to act.

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It may be observed that the courts of last resort in Minnesota, New York and Ohio have appeared to share the reluctance of the Supreme Court of California to impute to the Federal Government the intention "by means of its treaty-making power, to materially abridge the autonomy of the several States and to interfere with and direct the State tribunals in proceedings affecting private property within their jurisdiction." Inasmuch as it has been conceded by these tribunals that it lies within the socalled treaty-making power of the Federal Government to confer an exclusive right to administer the estate of a deceased intestate countryman upon a foreign consular officer, and in view of the fact that such a right has on three distinct occasions been accorded Peruvian consuls, it may be doubted whether the true significance of the terms employed is to be derived from the effect produced upon the institutions of a particular State of the United States by the grant of the right asserted.2 In view, however, of the mode and nature of the reference to the local laws, the decisions respecting the Swedish and Paraguayan conventions may be regarded as the natural and reasonable consequence of the phraseology of the texts. Although the consular right thereby conferred must, in the light of judicial opinion, be regarded as subordinate to that conferred by local statutes upon specially designated individuals, it is suggested that a consular officer who is entitled to invoke the benefits of these conventions may justly claim the right of appointment whenever the appointing judge is given discretionary power, or whenever no opposing applicant relies upon a superior statutory right.3

1 Matter of the Estate of Ghio, 157 Cal. 552, 557; Austro-Hungarian Consul v. Westphal, 120 Minn. 122, 140; Matter of D'Adamo, 212 N. Y. 214, 227-228; Pagano v. Cerri, 93 Ohio S. 345, 112 N. E. 1037. See, also, In re Servas' Estate, 146 Pac. 651.

2 The problem here, as in every case involving the interpretation of a treaty, is to ascertain the sense in which particular terms were employed by the contracting parties. Light thereon may come from many sources, such as from declarations of the negotiators, or from local constitutions. It is, however, an indirect ray that passes through the constitutionally subordinated agencies of a single nation, or through ex parte and unrelated views of national policy emanating from its foreign office. See, also, The Interpretation of Treaties, So-called Rules of Construction, infra, § 535.

Respecting divergent views of policy expressed by the Department of State, see Moore, Dig., V, 118–124, and documents there cited; also Mr. Root, Secy. of State, to Mr. Brun, Danish Minister, No. 678, May 2, 1907, For. Rel. 1907, I, 304.

3 Austro-Hungarian Consul v. Westphal, 120 Minn. 122; In re Bagnola's

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' § 481. Representation of Non-Resident Heirs or Dependents.

As early as 1821, the Supreme Court of the United States announced that a foreign consul was a competent party to assert or defend the rights of property of his countrymen in any courts of the nation having jurisdiction of causes affected by the application of international law.1 It is believed that no special authorization, by treaty or otherwise, is essential in order to warrant the intervention by such an officer in cases affecting his non-resident countrymen whensoever he has reason to believe that their interests require the consular protection.2

The United States has concluded certain conventions which, in varying form, recognize a consular officer as the legal representative of his non-resident countrymen, and which serve to enable him to act in their behalf as completely as if he held their mandate.3 According to Article VIII of the consular convention with Germany of December 11, 1871, he was, for certain purposes, presumed to be their legal representative. By virtue of Article XV of the con

Estate, 154 N. W. 461, where the Supreme Court of Iowa declared in 1915: "It is thoroughly well settled that under our treaty obligations the Consul [of Italy] has the initial right to administer upon the property of the subjects of his country"; In re Infelise's Estate, 149 Pac. 365 (Montana).

See, also, dissenting opinion of Donahoe, J., in Pagano v. Cerri, 112 N. E. 1037, 1041, in relation to the requirements of the Ohio statutory law.

1 The Bello Corrunes, 6 Wheat. 152, Stowell's Cases, 68. It was also there said, pp. 168, 169, that "Whether the powers of the vice-consul shall in any instance extend to the right to receive, in his national character, the proceeds of property libeled and transferred into the registry of a court, is a question resting on other principles. In the absence of specific powers given him by competent authority, such a right would certainly not be recognized. Much, in this respect, must ever depend upon the laws of the country from which, and to which, he is deputed." See, also, The Anne, 3 Wheat. 435, 445–446. 2 Thus a consul, without special authorization, might, it is believed, as the legal representative of his non-resident countrymen, start suit, in their behalf, should occasion so require.

In Nicola Marsicana v. Felice Ambrose et al., Gen. No. 313,768, Superior Court of Cook County, Illinois, Judge Sullivan held, on June 1, 1915, on petition of the Royal Italian Vice-Consul, that under existing treaty provisions with Italy, that officer had the right to enter his appearance as legal representative of Felice Ambrose, an Italian subject residing in Italy (who had been made a party defendant to a bill in chancery and had been defaulted), and in his own name as consular representative take whatever steps might be deemed necessary to protect the latter's interests.

3 "In our view, the stipulation in this treaty puts the delegate in the position of an agent of the French heirs, with the same effect as if he held their mandate to represent them as heirs. That was the manifest purpose, and the language of the treaty plainly expresses that intention. There is no power to appoint an attorney for absent heirs when the heirs are present or represented." Miller, J., in Succession of Rabasse, 17 So. 867, 47 La. Ann. 1454.

4 Malloy's Treaties, I, 552.

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."3 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, 1878,1 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.

See, for example, In re Tartaglio, 33 N. Y. Supp. 1121, 1123, Stowell's Cases, 360, 361; În 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.

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

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§ 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

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SHIPPING AND SEAMEN

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§ 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

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