6 lated 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 by the Court 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." It was also held that 289 39 Tucker vs. Alexandroff (1902), 183 U. S. 424. Also Moore's Digest, Vol. 4, pp. 422-423; Vol. 5, p. 249. 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. 79. Servitudes.-There are certain restrictions upon the sovereignty and jurisdiction of states commonly known as servi'tudes. 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 CHAPTER IV. JURISDICTION UPON THE HIGH SEAS AND OTHER WATERS.IDENTIFICATION OF VESSELS.-PIRACY.-INTEROCEANIC CANALS. 80. 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.1 The Sea of Marmora and Bering Sea, for instance, come under the term of the high seas, while the situation of the 1 Oppenheim, Vol. 1. Dead Sea and the Ural Sea makes the former Turkish and the latter entirely Russian. There are other large bodies of salt water like the Bay of Concepcion and the Chesapeake Bay which, for reasons given later, are conceded to be territorial waters of the countries within which they are situated. 81. The sea in its effect upon the history of the world.-The preponderating area of the waters of the globe is too well known to require more than a passing allusion. Its effect upon the development of the world is constantly growing. It has, as Nys well says, brought to the work of civilization a powerful aid. Little as it was known in the early ages, still it brought the East to the West and spread the early civilization to Western Europe. When, in turn, the civilization of the known world was centered in Western Europe it gave to the more vigorous people there a larger theatre of action, it made possible communication between the regions of the earth which are most remote from each other; no longer a barrier, it has become a highway to carry on intercourse which has a social and political as well as a commercial consequence. As the earth becomes more and more inhabited by civilized peoples and the development of the continents is caused by the genius of the human race, the sea will play a more and more important part in the history of the world. In connection with international law, which is the reigning law upon the high seas outside of the narrow sphere of the vessel, the sea bears a most important part, in peace and in war time, and also with respect to those neutral powers who, though not actors in a war, bear a relation of growing importance to those so engaged. 82. Freedom of the high seas.-It is a definite and well-established rule of international law that the high seas are not and never can be under the sovereignty or legal jurisdiction of any one state or group of states. 2 Nys, Vol. 2, p. 132. In this connection and in a book addressed especially to naval officers, it may be well to present the ideas of Ortolan, a French naval officer and writer, in his prelude to a discussion of the open sea addressed as a seaman to seamen. He says that it is above all by seamen that this truth of freedom of the sea is profoundly felt; they understand it by instinct and by intuition. Continuing the subject, he says, when the entrance of a port is left behind and the ship reaches the open sea the experienced seaman recognizes a sentiment of independence which fills him with exaltation. Having at last reached the deep blue water, the surrounding atmosphere is an atmosphere of freedom. The sea is grand, there is room in it for all. Scanning the horizon he finds before him only a free highway. Upon this great highway, upon this road which is always in movement, he asks himself where are the foreign powers that can dictate laws to me? Their laws can only be those of force, they can only be executed by force, and if force compels him to cede he has his own sovereign to appeal to for redress. The laws of the seaman, as to the internal rule of his vessel, are those of his country which he carries with him in his voyage. In his relations with foreigners the conventions and treaties negotiated by his country guide his conduct. If these treaties are wanting there exist the principles of universal international law, principles which are obligations resting upon all nations. In discussing Ortolan's views, Wheaton says that: 3 83. Physical impossibility of possession of the sea.-I. "Those things which are originally the common property of all mankind can only become the exclusive property of a particular individual or society of men by means of possession. In order to establish the claims of a particular nation to a right Ortolan Diplomatie de la mer, Vol. 1, pp. 120, 121. |