trolled by the orders of the officers under whose direction the said provisional government is now being maintained. In the case of Kerr. Illinois (119 U. S., 436, 442), the Supreme Court say: There is no language in this treaty, or in any other treaty made by this country on the subject of extradition, of which we are aware, which says in terms that a party fleeing from the United States to escape punishment for crime becomes thereby entitled to an asylum in the country to which he has fled; indeed, the absurdity of such a proposition would at once prevent the making of a treaty of that kind. It will not be for a moment contended that the Government of Peru could not have ordered Ker out of the country on his arrival, or at any period of his residence there. If this could be done, what becomes of his right of asylum? Nor can it be doubted that the Government of Peru could of its own accord, without any demand from the United States, have surrendered Ker to an agent of the State of Illinois, and that such surrender would have been valid within the dominions of Peru. It is idle, therefore, to claim that, either by express terms or by implication, there is given to a fugitive from justice in one of these countries any right to remain and reside in the other; and if the right of asylum means anything, it must mean this. The right of the Government of Peru voluntarily to give a party in Ker's condition an asylum in that country is quite a different thing from the right in him to demand and insist upon security in such an asylum. The treaty, so far as it regulates the right of asylum at all, is intended to limit this right in the case of one who is proved to be a criminal fieeing from justice, so that, on proper demand and proceedings had therein, the Government of the country of the asylum shall deliver him up to the country where the crime was committed. And to this extent, and to this alone, the treaty does regulate or impose a restriction upon the right of the Government of the country of the asylum to protect the criminal from removal therefrom. It is true that in the absence of provisions of treaties on the subject the Government of a nation is not obliged to surrender fugitives from justice, but it is not prevented from doing so. It may be done as an act of comity, and lies within the discretion of the Government whose action is invoked. Upon this question the Supreme Court of the United States, in United States . Rauscher, 119 U. S., 407, 411, 412), say: It is only in modern times that the nations of the earth have imposed upon themselves the obligation of delivering up these fugitives from justice to the states where their crimes were committed for trial and punishment. This has been done generally by treaties made by one independent Government with another. Prior to these treaties and apart from them it may be stated as the general result of the writers upon international law that there was no well-defined obligation on one country to deliver up such fugitives to another, and, though such delivery was often made, it was upon the principle of comity and within the discretion of the Government whose action was invoked. I am of the opinion that a proper procedure in such cases as the one presented would be as follows: First. The Government desiring the apprehension and extradition of a person accused before its tribunals, who has taken refuge in Cuba, should present to the Secretary of State duly authenticated documents showing the criminal proceedings instituted in the courts of the country seeking extradition. Second. The Secretary of State should transfer the papers to the Secretary of War. Third. The Secretary of War, if he deems the case a proper one in which to exercise the powers invoked, will issue an order to the military governor of Cuba to cause the accused person to be apprehended and turned over to the Government making the application. The views expressed and the procedure recommended in the foregoing report were approved by the Secretary of War and communicated to the State Department as the views of the War Department. (See War Department letter of January 9, 1900.) The State Department informed the Secretary of War that the Mexican Government had been advised by the State Department that the procedure adopted by the War Department was the proper one to be pursued. State Department letter of January 13, 1900.) (See IN RE CLAIM OF DON JOSÉ CAGIGAS AGAINST THE MILITARY GOVERNMENT OF CUBA FOR DAMAGES TO THE TUG CATALINA IN A COLLISION WITH THE GOVERNMENT BOAT NARCISO DEULOFEU IN HABANA HARBOR. [Submitted June 8, 1901. Case No. 2866, Division of Insular Affairs, War Department.j The question involved is an administrative one, to wit: Shall the military government of Cuba consider itself bound by the measure of damage prescribed by the code of commerce in force in Cuba for ascertaining the damage to vessels sunk by collision with other vessels? SIR: I have the honor to acknowledge and comply with your request for a report on the above-entitled matter. The attention of the War Department is called to this claim by a communication from the State Department (May 22, 1901), transmitting copy of note from the Spanish minister at this capital inclosing a memorandum in support of said claim. The State Department desires to ascertain the views of the Secretary of War before replying to the Spanish minister. (Doc. 2866.) ment. This claim has not heretofore been presented to the War DepartIf proceedings have been instituted thereon they are still pending in Cuba. The only information regarding said claim possessed by the War Department is derived from the memorandum presented by the Spanish minister. From that memorandum it appears that Don José Cagigas, a Spanish subject residing in Cuba, was the owner of the tug Catalina, which was sunk in Habana harbor, on November 8, 1899, by the government boat Narciso Deulofeu, in the service of the custom-house, in a collision, which upon investigation by the captain of the port, an American officer, was declared by him to have been occasioned by want of skill and care on the part of the officers in charge of the government boat. It further appears from said memorandum that the Catalina sunk immediately after the collision (November 8, 1899), and remained under water until some time in December, 1899, at which time the military authorities of the United States in Habana, upon their own motion, raised said tug, made certain repairs thereon, and on April 2, 1901, tendered said boat and $900 to Don José Cagaigs in full satisfaction of his loss and damage. Don José Cagigas declines to concur in this action of the military government, and insists that under the laws in force in Cuba he is entitled to a money compensation equal to the fair market value of his tug at the time it was sunk. In support of this contention, he appeals to articles 826 and 833 of the code of commerce, continued in force in Cuba by the military government. These articles are as follows: ART. 826. If a vessel should collide with another through the fault, negligence, or lack of skill of the captain, sailing master, or any other member of the complement, the owner of the vessel at fault shall indemnify the loss and damage suffered after an expert appraisal. * * * * ART. 833. A vessel shall be considered as lost which, upon being run into sinks immediately, and also any vessel which if obliged to make a port to repair the damages caused by the collision should be lost during the voyage, or should be obliged to be stranded in order to be saved. It appears to the writer that article 833 prescribes a rule or measure of damage for injuries resulting from collisions of vessels, which rule is that where a vessel sinks as a result of a collision attributable to negligence, the loss is to be considered as total, without regard to the actual condition of the vessel, or the fact that it could be raised and repaired. If this controversy were between private individuals, it appears to the writer that Don José Cagigas would be within his legal rights in calling for the enforcement of this rule, and I see no reason why the military government of Cuba should resist the application to itself of a measure of damage which it enforces against others. The code of commerce which prescribes this rule likewise prescribes a procedure for its enforcement, and in order to secure the benefits of the rule the procedure should be followed. The omission so to do, deprives the party asserting the rule of the desired advantage. The memorandum presented by the Spanish minister does not dis close whether or not the claimant has fulfilled the conditions precedent devolving upon him under the provisions of said code. It appears from said memorandum that the "adjutant-general at Habana” has notified Don José Cagigas that he must accept the tender of the repaired tug and $900, or "seek redress through other channels," which doubtless caused the application to the Government of Spain. It does not appear from the memorandum that the military governor of Cuba has approved this action of the "adjutant-general at Habana," and therefore the claimant has not exhausted his remedies in the island. The established practice of the War Department is to require claimants asserting individual rights to exhaust the means of securing relief in Cuba before consideration is given their claims by the Secretary of War. The Secretary of War is at liberty to instruct the military governor of Cuba as to questions of administrative policy in Cuba in advance of actual instance being presented or determined; and it appears that an administrative question is involved herein, to wit: Shall the military government of Cuba consider itself bound by the measure of damage prescribed by the code of commerce in force in Cuba for ascertaining the damage to vessels sunk by collision with other vessels? The determination of this question devolves upon the Secretary of War, and is to be declared at such time as his discretion shall deem advisable. The Spanish minister, in his communication to the State Department, with acumen and precision differentiates this question from its attendant facts and circumstances and presents it as follows: LEGATION OF SPAIN AT WASHINGTON, MR. SECRETARY: I have the honor to transmit herewith to Your Excellency the memorandum of a claim that Don José Cagigas, a Spaniard, has instituted against the military authorities of the island of Cuba, and which has not as yet received a satisfactory solution. I do not consider it expedient to dwell upon the merits of the case, which are clearly set forth in the inclosed memorandum, whose views are concurred in by this legation, and I will confine myself to drawing the attention of the American Government to the infraction of the existing laws of the island of Cuba constituted by the demand that Mr. Cagigas either accept in satisfaction of his claim a sum fixed by those authorities alone or forego any indemnification. I shall not at this time enter upon a discussion of what that indemnification should be, but will merely ask that the laws in force in such matters in the island of Cuba be respected in the case of Mr. Cagigas, and I beg Your Excellency will call thereto the attention of the Secretary of War, in whose Department I believe the antecedents of the case are filed. Thanking Your Excellency in advance, I improve this opportunity of reiterating the assurances of my highest consideration. ARCOS. If the Secretary of War shall be of the opinion that an appropriate occasion has arisen for the determination of this administrative question, the request of the Secretary of State will be complied with by communicating such determination to him. The Secretary of War determined the administrative policy for the government of Cuba in this and analogous cases as follows: JUNE 8, 1901. SIR: The War Department is in receipt of a communication from the State Department transmitting copy of note from the Spanish minister at this capital calling attention to the claim of Don José Cagigas for damages occasioned him by the sinking of the tug Catalina'in Habana Harbor, resulting from collision with the customhouse boat Narciso Deulofeu, and the proper measure of damages to be adopted in ascertaining the indemnity. Upon consideration thereof I am of the opinion that in cases of this character the military government of Cuba should submit to the same rule which would be enforced against private parties under like conditions, which I understand to be that prescribed in articles 826 and 833, Code of Commerce, in force in Cuba, provided the claimant follows the procedure prescribed by said Code. I inclose you copy of my letter to the Secretary of State respecting this matter. Very respectfully, Maj. Gen. LEONARD Wood, U. S. V., Military Governor of Cuba. ELIHU ROOT, Secretary of War. IN RE CLAIM OF THE EASTERN EXTENSION TELEGRAPH COMPANY FOR PAYMENT BY THE UNITED STATES OF SUBSIDY PROVIDED FOR BY THE TERMS OF THE CONCESSION GRANTED BY THE GOVERNMENT OF SPAIN." [Submitted July 22, 1901. Case No. 219, Division of Insular Affairs, War Department.] SYNOPSIS. 1. By the terms of the treaty of peace the United States did not assume the obligations of this character resting upon Spain. 2. Obligations of this character did not pass to the United States by operation of international law upon transfer of sovereignty. 3. The rule of international law as stated by the Transvaal concessions commission, 1901. SIR: I have the honor to acknowledge receipt, by reference, of a communication dated May 23, 1901, from the Chief Signal Officer, United States Army, to the Secretary of War, "respecting the concessionary rights of the Eastern Extension Telegraph Company in the Philippine Islands." with request for remarks. In response thereto I have the further honor to report as follows. In said communication the Chief Signal Officer says: With reference to the Visayan concession, it is believed that it should be recognized as soon as the Eastern Extension Telegraph Company and the Government of the United States can agree upon the date on which the payment of the subsidy begins, and as to the proper construction of certain portions of the original concession. As to the payment of this concession, the Chief Signal Officer believes, with General MacArthur, that while the legal obligation of the United States to pay this subsidy would not technically exist prior to the ratification of the treaty of peace and the formal transfer of sovereignty from Spain to the United States, yet on account of the permission granted this company and its action thereunder an obligation in equity would arise to pay, at least, from and after the date of the restoration of the service. a See report on claim of Manilla Railway Co., p. 177. 1394-03 34 |