183 U.S. 424 (1902), 303, Tucker v. Alexandroff

Docket Nº:No. 303
Citation:183 U.S. 424, 22 S.Ct. 195, 46 L.Ed. 264
Party Name:Tucker v. Alexandroff
Case Date:January 06, 1902
Court:United States Supreme Court

Page 424

183 U.S. 424 (1902)

22 S.Ct. 195, 46 L.Ed. 264




No. 303

United States Supreme Court

January 6, 1902

Argued November 15, 18, 1901




Alexandroff, a conscript in the Russian naval service, was sent as one of a detail of fifty-three men to Philadelphia to become a part of the crew of a Russian cruiser then under construction at that port. On his arrival at Philadelphia, the vessel was still upon the stocks, but was shortly thereafter launched, and continued for some months in the water still under construction. Alexandroff, who had remained during the winter at Philadelphia in the service and under the pay of the Russian government, deserted the following spring, went to New Fork, renounced his allegiance to the Emperor, declared his intention of becoming a citizen of the United States, and obtained employment. Shortly thereafter, he was arrested as a deserter from a Russian ship of war, and committed to prison, subject to the orders of the Russian Vice Consul or commander of the cruiser. On writ of habeas corpus, it was held:

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(1) That although the cruiser was not a ship when Alexandroff arrived at Philadelphia, she became such upon being launched;

(2) That, under the treaty with Russia of 1832, in virtue of which these proceedings were taken, she was a ship of war, as distinguished from a merchant vessel, notwithstanding she had not received her equipment or armament, and was still unfinished;

(3) That, under her contract of construction, she was from the beginning, and continued to be, the property of the Russian government, and was therefore a Russian ship of war, notwithstanding she bad not received her crew on board, nor been commissioned for active service, and was still in process of completion;

(4) That Alexandroff, having been detailed to her service, was, from the time she became a ship, a part of her crew within the meaning of the treaty;

(5) That the exhibition of official documents, showing that he was a member of her crew, had been waived by his admissions.

While desertion is not a crime provided for in our ordinary extradition treaties with foreign nations, the arrest and return to their ships of deserting seamen is required by our treaty with Russia and by other treaties with foreign nations. Query: whether, in the absence of a treaty, courts have power to order the arrest and return of seamen deserting from foreign ships?

While foreign troops entering or passing through our territory with the permission of the Executive are exempt from territorial jurisdiction, it is doubtful whether, in the absence of a treaty or positive legislation to that effect, there is any power to apprehend or return deserters.

The treaty with Russia containing a convention upon that subject, such convention is the only basis upon which the Russian government can lay a claim for the arrest of deserting seamen. The power contained in the treaty cannot be enlarged upon principles of comity to embrace cases not contemplated by it.

A treaty is to be interpreted liberally and in such manner as to carry out its manifest purpose.

A ship becomes such when she is launched, and continues to be such so long as her identity is preserved; from the moment she takes the water, she becomes the subject of admiralty jurisdiction.

A seaman becomes one of the crew of a merchant vessel from the time he signs the shipping articles, and of a man of war from the time he is detailed to her service.

This was a writ of habeas corpus issued upon the petition of Alexandroff to inquire into the cause of his detention by Robert C. Motherwell, keeper of the Philadelphia County Prison, and Captain Vladimir Behr, master of the Russian cruiser Variag.

The petition set forth that the petitioner was illegally detained

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upon a commissioner's warrant, issued upon the affidavit of Captain Behr, to the effect that he was a duly engaged seaman of the Russian cruiser Variag whose term of service had not expired, and that he had, on or before April 25, 1900, deserted from said vessel without any intention of returning thereto. Petitioner further averred that, on May 24, 1900, he had declared his intention before the proper authorities to become a citizen of the United States, and to renounce his allegiance to the Emperor of Russia, of whom he was then a subject; that he had never deserted the Variag, and had "never set his foot on that vessel as a seaman thereof."

In return to the writ the superintendent of the county prison produced the body of Alexandroff, with a copy of the commitment by a United States commissioner, stating that he had been "charged" on oath with desertion from the Variag, and "apprehended" upon a warrant issued by the commissioner at the request of the vice-consul, in accordance with the terms of a treaty between the United States and Russia. There was no statement that an examination had been had before the commissioner, and the warrant did not commit him for examination, but

subject to the order of the Russian vice-consul at Philadelphia or of the master of the cruiser Variag, or until he shall be discharged by the due course of law.

The commitment is reproduced in full in the margin.1

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Upon a hearing upon the writ, the return thereto and the evidence, the district court was of opinion, first, that the Variag was not at the time the petitioner left the service, a Russian ship of war, but simply an unfinished vessel intended for a Russian cruiser; second, that petitioner had not become a member of her crew; that the vessel had no crew in the sense intended by the treaty, inasmuch as the men assigned to that duty had not yet begun that service and might never be called upon to perform it; third, that no such documentary evidence of petitioner's enlistment as a member of the crew as was required by the treaty had been offered.

[22 S.Ct. 197] It was accordingly ordered that the prisoner be discharged from custody. 103 F.198.

An appeal was taken from this order to the circuit court of appeals, in which court the district attorney entered his appearance and filed a suggestion that, under the facts of the case, the relator should be remanded to the county prison to await the order of Captain Behr, the master of the Variag.

Upon a hearing in the court of appeals, the order of the district court was affirmed. 107 F. 437. Whereupon William R. Tucker, vice-consul of Russia at Philadelphia, applied for and was granted a writ of certiorari from this Court.

BROWN, J., lead opinion

MR. JUSTICE BROWN delivered the opinion of the Court.

Upon the facts of this case, the district court and court of

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appeals were agreed in the opinion that neither under terms of the treaty of 1832 with Russia, nor upon principles of international comity, could the relator be delivered over to the master of the Variag as a deserter.

In committing him to the Philadelphia County Prison, the commissioner acted in pursuance of Rev.Stat. § 5280, which provides as follows:

SEC. 5280. On application of a consul or vice-consul of any foreign government having a treaty with the United States stipulating for the restoration of seamen deserting, made in writing, stating that the person therein named has deserted from a vessel of any such government, while in any port of the United States, and on proof by the exhibition of the register of the vessel, ship's roll, or other official document, that the person named belonged at the time of desertion, to the crew of such vessel, it shall be the duty of any court, judge, commissioner of any circuit court, justice or other magistrate, having competent power, to issue warrants to cause such person to be arrested for examination.

The procedure is then set forth.

The facts were, in substance, that Alexandroff entered the Russian naval service as a conscript, in 1896 at the age of seventeen, and was assigned to the duties of an assistant physician. Sometime in October, 1899, an officer and a detail of fifty-three men, among whom was Alexandroff, were sent from Russia to Philadelphia to take possession of and man the Variag, then under construction by the firm of Cramp & Sons, in that city. The Variag was still upon the stocks when the men arrived in Philadelphia. She was, however, launched in October or November, 1899, and at the time Alexandroff deserted was lying in the stream still under construction, not yet having been accepted by the Russian government. Alexandroff left Philadelphia without leave April 20, 1899, went to New York, and there renounced his allegiance to the Emperor of Russia, declaring his intentions of becoming 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 upon a mittimus stating that he had been charged with desertion from the imperial Russian cruiser Variag, upon the complaint of the

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captain, in accordance with the terms of the treaty between the United States and Russia.

The vice-consul, who prosecutes this appeal on behalf of the Russian government, relies chiefly upon article IX of the treaty of December, 1832, which reads as follows (8 Stat. 444):

The said consuls, vice-consuls, and commercial agents are authorized to require the assistance of the local authorities for the search, arrest, detention, and imprisonment of the deserters from the ships of war and merchant vessels of their country. For this purpose they shall apply to the competent tribunals, judges, and officers, and shall 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, that such individuals formed part of the crews; and, this reclamation being thus substantiated, the surrender shall not be refused.

Sections VIII and IX of...

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