« ForrigeFortsett »
7. To administer and settle, either by themselves, or by a person appointed by them, and acting under their responsibility, the goods and chattels of the estate, if the period fixed by the local authori. ties, according to the laws of the country, for its own members, or those of a third nation, domiciled in the country, to present their demands, is not expired, and if there be no dispute as to such demands; but in either · such case, the consular officer must relinquish the settlement of the estate to the proper legal authorities, and limit his interference to those administrative measures which will not involve these questions, leaving the decision of such questions, so far as they do not depend upon the title to the succession or the distribution, under the will, to the exclusive control of the courts and tribunals of the country.
Having in such cases relinquished the administration to the local authorities, the consular officer continues to be the representative of the succession and the beneficiaries under the will, for the purpose of protecting the rights of the parties interested, and has power, if necessary, to employ counsel for the protection of those rights.
After the judgment has been pronounced upon the demands so re. served to the decision of the tribunals of the country, or after the sum required for their payment has been determined, the entire movable assets, except those which may be necessary to remain as security, shall be, after the removal of the seals imposed by the local authorities, delivered for its final disposal to the consular officer.
8. To procure his own appointment, if that be necessary, as administrator, or as administrator with the will annexed, if an executor has been named, but has declined the trust, or is unknown, absent, or incapable.
? If the deceased was domiciled in another nation, the administration will be ancillary to any administration instituted at home. If he was a foreigner domiciled at the place of his death, the administration will be the principal one. In either case, the consul’s proceedings should be, in other respects, according to the local law, and under the authorization of the court of probate.
Security not required.
341. A consul entitled to administration under the last article, shall not be required to give security for the performance of his duties.
Inasmuch as he only intervenes for the interest of his countrymen, his official responsibility should seem enough.
Local authorities to administer in absence of consul and all other authorized persons.
342. In the absence of the consul and secretary of legation, and of all other representatives in interest of the foreign parties, the local authorities shall administer the estate without unnecessary delay or expense.
and shall render account thereof to the nearest consul or to the secretary of legation of the nation of the foreigners entitled, and shall deliver and pay to him that which belongs to such members of his nation as do not appear to claim the same.
Suggested by the consular convention between France and Portugal, July 11, 1866, Art. VIII., (9 De Clercq, 582,) and the convention between France and Austria, for the regulation of successions, December 11, 1866, Art. III., (9 De Clercq, 675,) which also provide that if in such case the nearest consular officer appears, either in person or by delegate, in the place of administration, the local authorities who have intervened must comply with the requirements giving him the right to act.
By the treaty between France and Peru, March 9, 1961, Art. XXXVII., subd. 5, (8 De Clercq, 193,)the payment of the assets to the consul is without prejudice to the rights of creditors subsequently presenting themselves within the time prescribed by the statute of limitations of the country to which the decedent belonged.
Notice to be given of successions in which foreigners are interested.
343. If a foreigner, absent or incompetent, is interested, by succession or will, in the property, movable or immovable, of any deceased person whomsoever, which is subject to the administration of a nation, the local authorities must notify the existence of the property to the nearest consul of the nation of the foreigner interested, and render account of the administration thereof, as prescribed in the last article.
Suggested by the convention between France and Austria, for the regulation of successions, Dec. 11, 1866, Art. III., 9 De Clercq, 675.
The treaty between the United States and The Two Sicilies, Oct. 1, 1855, Art. VII., (11 U. 8. Stat. at L., 639,) provides, that in the absence of the heir entitled to succeed under the treaty, or his representatives, the consul shall have notice from the judicial authorities of the time of imposing or removing the seals, and making this inventory, and may assist thereat.
Secretary of legation to act if there be no consul.
344. If there be no consul of the proper nation, who can act under the provisions of this Chapter, the secretary of legation of the same nation shall receive the notice and exercise the powers herein prescribed for consuls.
Other treaties, containing similar provisions to those cited below, will be found. See 7 De Clercq, 10, 362, 586 ; 8 Id., 193 ; 10 U. 8. Stat. at L., 87, Art. X.; (Tr.,) 71, Art. XI., 9 Id., 55, Art. IV.; 67, Art. IV.; 79 Art. XI. ; 8 ld., 560, 534, Art. XI. ; British Accounts and Papers, 1866, vol. LXXVI., (38.) See, also, United States Consular Regulations, (1870,) 11 209-218, and Treaties in Appendix.
ARTICLE 345. Duty of a nation to succor and protect.
346. Notice of wreck to consul of the ship's nation.
Duty of a nation to succor and protect.
345. It is the duty of every nation to receive and protect foreigners, members of any nation whatever, and foreign ships,' public or private, wrecked or damaged on its coasts, or within its jurisdiction, or seeking refuge there from distress or perils of the sea, and allow them freely to prepare for and continue their voyages. Such ships, and the persons and property therein, must receive the same succor, and be subject to the same charges, salvage, or other burdens as domestic ships in like cases.'
This article and the next are in substance from the treaties between the United States and
Hayti, Nov. 3, 1864, Art. XV., 13 U. S. Stat. at L., 711.
IX., 12 ld., 1009.
XI., 12 Id., 1149.
IX., 8 Id., 84.
X., 8 Id., 100.
Peru, July 26, 1851, XVII., 10 Id., 933. Similar provisions are contained in the treaty between France and Honduras, February 22, 1856, Art. XII., (7 De Clercq, 10.) See, also, treaty between France and Nicaragua, April 11, 1859, Art. XII., (7 Id., 586.)
! These provisions have been extended to ships of whatever nationality, because it is the interest of each nation that their members should be succored in distress, without reference to the nationality of the ship.
• Provisions exempting ships of either nation on the coasts of the other, or driven into ports of distress, from all charges except these of pilotage, light-house dues, and others representing the compensation of private industry, provided that the vessels do not lade or unlade cargo, are contained in the treaty between France and San Salvador, Jan. 2, 1858, Art. XIV., 7 De Clercq, 362.
Somewhat similar provisions as to freedom from charges are contained in the treaty between France and New Granada, May 15, 1856, Art. XV., 7 De Clercq, 102.
A declaration relative to the treatment of ships driven into ports of distress, made between France and Hanover, April 10, 1856, (7 De Clercq, 86;) provides, that such ships shall be exempt from dues of the port or of navigation, if the necessity is real and evident, and if the ship does no business—discharge of cargo merely for the purpose of repairs, not being considered as such-and provided that the ship does not umecessarily prolong its stay.
Upon the same conditions, the treaty between the United States and The Two Sicilies, October 1, 1855, Art. XVI., (11 U. 8. Stat. at L., 639,) secures to foreign ships the same treatment as domestic ships.
The doctrine is supported also by the opinion of the United States At. torney-General, in the case of The Creole, 4 Opinions of U. 8. AttorneysGeneral, p. 98; also, in Cases and Opinions of Constitutional Law, by For. syth, p. 400, in which he says: The principle is, that if a vessel be driven by stress of weather, or forced by vis major, or in short, be compelled by ang overruling necessity to take refuge in the ports of another, she is not considered as subject to the municipal law of that other, so far as concerns any penalty, prohibition, tax, or incapacity that would otherwise be incurred by entering the ports, provided she do nothing further to violate the municipal law during her stay.
Notice of wreck to consul of the ship's nation.
346. In case of the wreck, stranding, or distress of a foreign ship, public or private, on the coasts of any nation, or on navigable waters within its jurisdiction, if the nationality of the ship be known, the local authorities must immediately notify the fact to the consul of the nation to which the ship or wreck belongs. resident within the district; or if there be none, then to the nearest consul; or, if none, to the secretary of legation of such nation, who, in the absence of the consul, shall have the powers conferred on consuls by this Chapter
This and the three following articles are suggested by the convention between the United States and
Italy, Feb. 8, 1868, Art. XV., 15 U. S. Stat. at L., (Tr.,) 185.
France, Feb. 23, 1853, XI., 10 Id., 998. Treaty of navigation between France and
Sweden and Norway, Feb. 14, 1865, 9 Do Clercq, 172. Treaty of commerce and navigation between France and The Free Cities of Lu-)
beck, Bremen, and Ham. Mar. 4, 1865, Art. XXI.,9 DeClercg, 187.
lenburg - Schwerin-
July 7, 1865, XXXVII., 9 Id., 337.
Power of consul or local authorities over wrecks.
347. The consul of the nation to which the ship belongs,' and in his absence and until his arrival, the local authorities may, for the purpose of saving the ship, and the persons and property on board, take possession of it, and, if it be a private ship, may for the same purpose take command over the master, or other person having charge thereof.
Suggested by the British Merchant Shipping Act, 17 & 18 Vict., c. 104, Part VIII., qualified by giving the consul the prior right.
1 The consular convention between France and Portugal, July 11, 1866, Art. XIV., (9 De Clercq,502,) which contains the same provision, adds that in case of doubt respecting the nationality of the ship, the care of the wreck is subject to the exclusive direction of the local authorities.