of securing a crew would be greatly en-
hanced if, after *signing the articles and [445]
per ps drawing advance pay, seamen were
at berty to desert before rendering them-
selves on board.

The Variag being a ship of war, there was
no signing of shipping articles, as required
in the merchant service, since the seamen
were enlisted or conscribed to serve where

lent for the shipping articles in the detail of Alexandroff to this vessel. He entered the Russian naval service in 1896, and his term of service had not expired. He was, of course, subject to the orders of his officers, and was sent as a member of a force of one officer and fifty-three men ordered to take possession of the Variag as soon as she was completed. From the moment of such assignment and until relieved therefrom, he was as much bound to the service of the Variag, and a member of her crew, as if he had signed shipping articles. We express no opinion as to whether, if the Variag had not been launched when he deserted, he could be held as a member of her crew, but when she took the water and became a ship she was competent to receive a crew, and a detail to her service took effect. It will scarcely be disputed that, if the Variag had been in commission and this body of men had gone on board the vessel and rendered some slight service as seamen, and had subsequently gone ashore to remain until she was ready for her final departure from Philadelphia, they would be regarded as a component part of her crew; but this differs in form rather than in substance from what actually took place. The men were in Philadelphia in custody of Captain Behr, and

upon this subject that we think it can hardly be open to doubt. By Rev. Stat. § 4522, as amended in 1898 (30 Stat. at L. 755, chap. 28), regulating seamen engaged in interstate commerce, there is a provision that "at the foot of every such contract to ship upon such a vessel there shall be a memorandum in writing of the day and the hour when such seaman who shipped and subscribed shall render himself on board to be-ordered. But there was a practical equivagin the voyage agreed upon. If any seaman shall neglect to render himself on board the vessel for which he has shipped at the time mentioned in such memorandum," and if the master shall make a proper entry in the log book, "then every such seaman shall forfeit for every hour which he shall so neglect to render himself one half of one day's pay." [444] The *rights of the seaman in this connection are protected by § 4527, which declares that "any seaman who has signed an agree ment, and is afterward discharged before the commencement of the voyage or before one month's wages are earned," shall be entitled to compensation. By § 4558, as amended (30 Stat. at L. 757, chap. 28), “if, after judgment that such vessel is fit to proceed on her intended voyage, the seamen, or either of them, shall refuse to proceed on the voyage, he shall forfeit any wages that may be due him." Section 4596 is largely a reproduction of the section above cited from the merchants' shipping act, and provides that "whenever any seaman who has been lawfully engaged commits any of the following offenses, he shall be punishable as follows: Second. For neglecting and refusing, without reasonable cause, to join his vessel or to proceed to sea in his vessel, or for absence without leave at any time within twenty-ready to go on board at a moment's notice. four hours of the vessel sailing from any port, either at the commencement or during the progress of any voyage," he shall forfeit his wages. By § 4599, “Whenever, either at the commencement of or during any voyage, any seaman or apprentice neglects or refuses to join, or deserts from or refuses to proceed to sea in, any vessel in which he is duly engaged to serve," the master may [in accord- We do not regard it as material that the ance with the English practice] apply for Variag had not yet been commissioned as the local assistance of police officers or con- a member of the Russian navy. The mere stables for his arrest and detention. It is commissioning of a ship does not make her true this section has been repealed, together a ship of war, but merely indicates that she with all other provisions authorizing the is assigned to active service. A merchant arrest and surrender to the vessel of seamen vessel, built for the purpose of trade and of domestic vessels deserting in this country. commerce, *is a merchant vessel, though she[446] But throughout all this legislation there is may not yet have received her registera recognition of the principle that the obli-a formality only necessary to entitle her gation of the seaman begins with the signing of the shipping articles, and that he is liable to the penalty of a forfeiture of his wages from that moment.

They were as much subject to his orders as if they had remained on board the Variag; and as much so as if she had been a regularly commissioned vessel of the Russian navy, which had put into Philadelphia for repairs and sent her crew ashore as the most convenient method of disposing of them while such repairs were being made.

to the privileges of an American vessel. To hold that the treaty applies only to commissioned vessels of war is to introduce into it a new element and to rob it of a valuable Upon these authorities we are of opinion feature. Under the contract with the buildthat, as applied to merchant vessels, the ers she was clearly Russian property, and crews are organized and the service of each while ownership is not always proof of sailor begins with the signing of the ship- nationality, since a vessel may be owned in ping articles, and that the lien of the sea- one country and registered in another, where man upon the ship for his wages, and re- the facts are undisputed, and there was no ciprocally the lien of the ship upon the sea-pretense she was an American vessel, her man for his services, where such lien still Russian nationality follows as a matter of exists, dates from that time. The difficulty course. If she went out of commission and

183 U. S. U. S., Book 46.

18

273

her armament were taken out of her for a vice-consul must show either that it was temporary purpose, she would nevertheless complied with or that a compliance was be a ship of war of the Russian navy. Be-waived. We are not informed by the record ing, as we have already held, a ship, she what evidence was laid before the commismust be either a ship of war or merchant sioner upon this subject. Alexandroff himvessel, and as she was clearly not a merchant self, however, swears that he entered the vessel, the only other alternative applies. naval service in 1896 as an assistant physiThe treaty should be liberally interpreted cian; that he arrived in the United States in this particular to carry out the intent October 14, 1899; that he never asked to of the parties, since if a foreign government become a member of the crew, but was may not send details of men to take posses- simply sent to the United States and lived sion of vessels built here, without danger of with the crew of the Russian ship, received losing their entire command by desertion, his equipment, support, and wages; that we must either cease building them or for- he left the crew on April 20, 1900, went to eign governments must send special ships New York, declared his intention to become of their own with crews ordered to take pos- a citizen, and obtained employment. On session of them. It is true that possession cross-examination he stated that a subject of the Variag had not yet been delivered, but is not required to sign any enlistment or the title had passed, and the very fact that anything of that kind, but is simply sent the Russian government had detailed a crew into the service. After the oral testimony[448] to take possession of her indicated that it had been introduced, the Russian vice-conregarded her as a constituent part of the sul, to further sustain his case, made the folRussian navy. It is unnecessary to consider lowing offer: whether, if the Variag had been rejected, her crew would have been eo instanti at liberty to leave the Russian service and acquire a citizenship here. That probably would have involved the other question, whether they could be treated as a military force entering this country with the permission of the Executive and remaining subject to the orders of their officers.

Holding, as we do, that the rights of the parties must be determined by the treaty, the manner in which this body of men entered the country does not seem to be material, so long as it appears that they were detailed as part of the crew of the Variag. If they were not here as a military force,, 1447] which had landed with the permission of the government, they were lawfully here as individual seamen directed to take possession of the Variag, and the purpose of their coming was of no moment to the authorities. It appears, however, and it is not improper to allude to it here, that, as the Variag approached her completion, the naval agent of the Russian Embassy to the United States addressed a letter to the Secretary of the Treasury, requesting that the necessary orders be given for allowing "admittance to the United States, through the port of New York, without examination, the detail of one officer and fifty-three regular sailors, imperial Russian navy, detailed to this country for the purpose of partly manning the cruiser," etc. In reply, the acting Secretary of the Treasury issued instructions to the Commission of Immigration to admit the detail without examination for the purposes named, and to remit the usual head tax of $1.

3. The only remaining question is whether there was a compliance with article IX. of the treaty, that the vice-consul "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." We have no doubt this provision is obligatory, and that the

"Mr. Adler: I also have here the Russian officer who accompanied these fifty-three sailors to this country, together with the other members of the crew, who has with him the passport issued by his government entitled these men to come here. I understand it is admitted by the other side that this defendant did come here, as a portion of the crew of this cruiser, and the passport so states. If that is admitted, I presume it is not necessary to offer the passport in evidence. If your honor cares to have it, I will produce this officer with the passport and offer it. It merely shows that this defendant, with fifty-two other members of a company in the Russian navy, were admitted to free passage here to become members of the crew of the cruiser Variag, and that he came here in pursuance of that passport accompanied by this officer.

"Mr. Hassler: I should object to the officer, not so much on account of what is in the passport, but my friend made a statement which I do not think is exactly ac curate, as to what we stated. this man came here with a company of men, but we do not state that he came here as part of the crew of the Variag.

We stated

"The Court: He came here as a member

of the Russian navy, ordered here to become one of the crew of the cruiser Variag, and he came for that express purpose.

"Mr. Hassler: We concede that."

There was here a clear waiver of the production of the passport and an admission that Alexandroff came to this country as a member of the Russian navy, was ordered here to become one of the crew of the Variag, and came for that express purpose. Under such circumstances, it does not lie in the mouth of the relator to insist that no official documents were produced, since the passport and the admission accompanying its offer show that Alexandroff came here as a member of the proposed crew of the Variag (and we have discussed the case upon that assumption)-the question being whether under those circumstances he ought to be

war.

[449] *We are of opinion that his case is within the treaty, and the judgments of both courts below are therefore reversed, and the case remanded to the District Court for the Eastern District of Pennsylvania for further proceedings consistent with this opinion.

treated as a deserter from a Russian ship of | found to be true, the person arrested, not being a citizen of the United States, shall be delivered up to the consul or vice-consul, to be sent back to the dominions of any such government, or, on the request and at the expense of the consul or vice-consul, shall be detained until the consul or vice-consul finds an opportunity to send him back to the dominions of any such government. No person so arrested shall be detained more than two months after his arrest; but at the end of that time shall be set at liberty, and shall not be again molested for the same cause. If any such deserter shall be found to have committed any crime or offense, his surrender may be delayed until the tribunal before which the case shall be depending, or may be cognizable, shall have pronounced its sentence, and such sentence shall have been carried into effect."

Mr. Justice Peckham concurred in the opinion, but also thought that the men, among whom was the respondent, came into the country with the expressed permission of the Executive as a part of the Russian navy and as members of the crew of the steamship awaiting completion as a man of-war; and the Russian government was therefore, upon the principle of comity, entitled to the aid of the government of the United States to accomplish the arrest and detention of a deserter from the ranks of

those men it had thus expressly authorized

to come in.

Mr. Justice Gray, with whom concurred
Mr. Chief Justice Fuller and Justices
Harlan and White, dissenting:

The Chief Justice, Justices Harlan and
White and myself are unable to concur in
the opinion and judgment of the court. The
case presents such an important question of
international law as to make it fit that the
grounds of our opinion should be stated.
It is necessary to a proper determination of
the case that its precise facts should be
borne in mind, and they will therefore be
here recapitulated.

This is a writ of certiorari, granted by this court on the application of William R. Tucker, the Russian vice-consul at Phila delphia, to review a judgment of the United States circuit court of appeals for the third circuit on February 25, 1901 (48 C. C. A. 97, 107 Fed. 437), affirming a judgment of the district court for the eastern district of Pennsylvania on July 12, 1900 (103 Fed. 198), discharging on writ of habeas corpus Leo Alexandroff, held in custody under a warrant of commitment issued by a United States commissioner to Robert C. Motherwell, Jr., keeper of the Philadelphia County Prison, subject to the order of the Russian vice-consul at Philadelphia, or of the master of the Russian cruiser Variag, under § 5280 of the Revised Statutes, which is as follows: [450] *"On application of a consul or vice-con

sul 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 be-
longed, 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.
If, on examination, the facts stated are

The treaty of the United States with the Emperor of Russia of December 18, 1832, provides, in article 9, as follows:

"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 render shall not be refused. Such *desert-[451] ers when arrested shall be placed at the disposal of the said consuls, vice-consuls, or commercial agents, and may be confined in the public prisons, at the request and cost of those who shall claim them, in order to be detained until the time when they shall be restored to the vessels to which they belonged, or sent back to their own country by a vessel of the same nation or any other vessel whatsoever. But if not sent back

sur

within four months from the day of their arrest, they shall be set at liberty, and shall not be again arrested for the same cause. However, if the deserter should be found to have committed any crime or offense, his surrender may be delayed until the tribunal before which his case shall be depending shall have pronounced its sentence, and such sentence shall have been carried into effect." 8 Stat. at L. 448.

The warrant of commitment in this case was issued by the commissioner on June 1, 1900, on the application of the vice-consul of Russia at Philadelphia, upon the affidavit of Captain Vladimir Behr, stating that he was master of the Russian cruiser Variag, then in the port of Philadelphia, and that Alexandroff was a duly engaged seaman of that vessel, and on or before April 25, 1900, had deserted from her without any intention of returning.

The Variag was built under a contract in writing, dated April 23, 1898, between the William Cramp & Sons Ship & Engine Build

ing Company of Philadelphia, Pennsylvania, and the Russian Ministry of Marine, by which the Cramp Company agreed to supply for the imperial Russian navy a protected cruiser, built, equipped, armed, and fitted (except the ordnance and torpedo outfit), subject to the approval of a board of inspectors appointed by the Russian Ministry of Marine. That contract contained the following provisions:

"Art. 8. Trials to determine the speed of the vessel shall be made by the contractors, in the presence of the board of inspection, and at the cost of the contractors, who agree to insure the vessel against sea risks and all other risks of every description during the trials, and until such time as the vessed is handed over to the exclusive possession and custody of the Russian Ministry of Marine." [452] And if the mean speed should be less than 21 knots per hour, or the actual draught of water in any part of the ship should exceed the contract draught by 1 foot, it should be optional with the Russian Ministry of Marine to reject the ship."

Pennsylvania, and equipped for sea, into the charge of the persons appointed by the imperial Russian government *to receive it in[453] not more than twenty months after the arrival of the board of inspectors at Philadelphia." By article 18 the Russian Ministry of Marine agreed to pay the price in ten equal instalments, withholding 10 per cent of each instalment until final payment. The instalments were payable at successive periods, the last two being as follows: "9. Ten per cent when steam has been raised in the boilers and the engines turned over under their own steam. 10. Ten per cent when the ship has had a successful trial trip and has been turned over to the imperial Russian government, and simultaneously therewith there shall be paid to the contractors the 10 per cent of each of the previous instalments which shall have been withheld as aforesaid."

Alexandroff entered the Russian navy in 1896, at the age of seventeen, for the term of six years, and was an assistant physician. He was one of fifty-three members of the Russian navy, sent out in a passenger steamship (not a Russian) by the Russian government, under command of an oflicer, for the purpose of becoming part of the crew of the cruiser Variag; and arrived in this country October 14, 1899. The ship was then on the stocks, and was launched in October or No

"Art. 10. The contractors agree that the vessel to be built as aforesaid, whether finished or unfinished, and all steel, iron, timber, and other materials as may be required by the contractors, and be intended for the construction of the said ship, and which may be brought upon the premises of the contractors, shall immediately thereupon be-vember, 1899, and made one trial trip. But come and be the exclusive property of the Russian Ministry of Marine. The flag of the imperial Russian government shall be hoisted on the said ship whenever desired by the board of inspection, as evidence that the same is said government's exclusive property, and the Russian Ministry of Marine may at any time appoint an officer or officers to take actual possession of the said ship or material, whether finished or un finished, subject to the lien of the contractors for any portion of the value that may be unpaid."

"Art. 12. The contractors shall insure and keep insured, against all risks usually insured against, the said vessel, its engines and all fittings and materials, at their own cost, but in the name of, and for the benefit of, the Russian Ministry of Marine, in fire insurance companies previously approved by the board of inspection, and in such an amount or amounts as shall be, from time to time, suflicient to cover and recoup to the imperial Russian government the sum or sums which said government, for the time being, may have paid, or become bound to pay, to the contractors in respect of such vessel." "Notwithstanding anything herein contained, the ship, together with its engines, machinery, and equipment, shall, as between the contractors and the Russian Ministry of Marine, stand, and at all times be, at the risk of the contractors, until the said ship has been accepted by the imperial Russian government, or it has taken actual possession thereof."

"Art. 13. The contractors engage, at their own cost and risk, to launch and deliver the vessel safe and uninjured at Philadelphia,

in June, 1900, she was still in the custody
of the contractors, had not been completed
by them, or accepted by the Russian govern-
ment, and a good many of the contractors'
men were still working on her; and only
about 80 per cent of her price had been paid.
Alexandroff was never on the ship, never
signed any paper as a member of her crew,
and was never ordered on board of her,
either as a seaman or as an assistant physi-
cian; but from October, 1899, to April, 1900,
lived on shore, with the rest of the men who
came with him, had his photograph taken
with them, received equipment, support, and
wages from the Russian government, and
performed the duties required of him as an
assistant physician. He left his associates,
without leave, at Philadelphia on April 20,
1900, went to New York, and there took up
his residence, and on May 24, 1900, made in
court a primary declaration of his intention
to become a citizen of the United States.

There was introduced in evidence, with-
out objection, a copy of a letter (the orig-[454]
inal of which was said to be in the possession
of the Russian ambassador at Washington),
dated "Treasury Department, Oflice of the
Secretary, Washington, D. C., October 4,
1899," signed by the acting Secretary of the
Treasury, and in these terms:

"Sir:-Acknowledging the receipt of your letter of 24th ultimo, No. 557, I have the honor to inform you that, in compliance with request contained therein, instructions have been issued to the commissioner of immigration at the port of New York, to admit without examination the detail of one officer and fifty-three regular sailors whom you state have been detailed to this country for

the purpose of partially manning the cruiser | On December 25 and 28, 1900, a like cornow under construction for the Russian respondence took place between the Rusgovernment at Cramp's shipyard in Phila-sian ambassador and the Secretary of State delphia, Pennsylvania. The collector of concerning "two hundred and thirteen seamen of the imperial fleet, accompanied by two officers, a monk and a cook," embarked at Liverpool for Philadelphia on the Belgenland, and "sent hither to complete the crew of the imperial cruiser Variag."

This letter was assumed by the courts below to have been addressed to the Russian ambassador and in answer to a letter from him. But it appears by copies of docu-1, 1900, the attorney of the United States ments in the Treasury Department, submitted by counsel for the petitioner by leave of this court, that it was in answer to a letter dated September 24, 1899, No. 557, from the naval attaché of the imperial Russian embassy at Washington to the Secretary of the Treasury, requesting that the necessary orders to whom it concerned might be given for "allowing admittance to the United States through the port of New York without examination the detail of one oflicer and fifty-three regular sailors, imperial Russian navy, detailed to this country for the purpose of partially manning the cruiser now under construction for the Russian gov-its own territory is absolute and exclusive; ernment at Cramp's shipyard, in Philadelphia, Pennsylvania."