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In case of the death of any subject of one of the Contracting Parties in the territory of the other, the local authorities must give immediate notice to the Consul-General, Consul, Vice-Consul, or Consular Agent in whose district the death has taken place. The Consular Agents must on their part give the same notice to the local authorities when the death comes to their knowledge first.
When a Spaniard in Portugal, or a Portuguese in Spain shall have died without making a will or leaving a testamentary executor, or if any of the natural heirs, or those appointed by will should be minors, incapacitated, or absent, or if the appointed testamentary executors are not at the place where the estate is left, in all these cases the Consuls-General, Consuls, and Vice-Consnls, or Consular Agents of the deceased's nation, must proceed successively to the following operations:
To affix seals officially or at the request of the interested parties on all the moveable effects and papers of the deceased, giving notice of this operation to the competent locul authority, who may attend and affix his seals also.
Neither these seals nor those of the Consular Agent can be removed without the concurrence of the local authority.
Nevertheless, if after a notice addressed by the Consul or Vice-Consul to the local authority inviting him to be present at the removal of the double seals, he does not appear within a period of forty-eight hours after receiving the notice, the Consular Agent may proceed to the said operation by himself.
2. To draw up an inventory of all the goods and effects of the deceased in presence of the local authority, if he has attended at the operation in virtue of the aforesaid notification.
The local authority shall authorize by his signature the documents drawn up in his presence, but his official intervention in these operations shall not occasion costs of any kind.
3. To direct the sale by public auction of all the moveable effects of the State which might become deteriorated, and of those which it is difficult to preserve, as well as of the produce and effects for which there are favourable opportunities of disposing.
4. To place in a safe depository the effects and securities entered in the inventory, the amount of debts paid in, and of the income collected, either in the Consular house or in that of some merchant whom the Consul or Vice-Consul trusts.
In both cases the proceedings must be in concurrence with the local authority who has been present at the preceding operations; if, after the summons referred to in the following paragraph, subjects of the country of a third Power should appear as interested in the testamentary or intestate estate.
5. To summon, by means of the newspapers of the locality and of the deceased's country, if necessary, any creditors there may be of the testamentary or intestate estate, in order that their claims may be sent in and duly proved within the legal period in each country.
If creditors appear against the testamentary or intestate estate, their claims must be paid within fifteen days from the completion of the inventory, if there is money enough to do so, and if not, as soon as funds can be provided in the most convenient manner, or within a period to be determined by common consent between the Consul and the majority of those interested.
If the respective Consul should refuse the payment of one or more of the claims presented, alleging the insufficiency of the effects of the estate to satisfy them, the creditors shall have unrestricted right of applying to the competent authority to have the intestate or testamentary estate declared compulsorily insolvent, if they consider it expedient for their interests.
When this declaration has been obtained by the legal means established in each of the two nations respectively, the Consuls and Vice-Consuls must immediately deliver up to the judicial authority, or to the Syndics of Insolvency, as the case may be, all the documents, effects, and securities belonging to testamentary or intestate estate, and the said agents will remain as representatives of the absent heirs and of those who are minors or incapacitated.
6. To administer and liquidate, personally or by some one whom they appoint on their own responsibility, the testamentary or intestate estate, the local authority having no right to interfere in these operations, unless subjects of the country or of a third Power should have to enforce claims against the estate; for in this case, if difficulties should arise proceeding chiefly from some reclamation which gives rise to contention among the parties, as the Consuls-General, Consuls, Vice-Consuls, or Consular Agents have no right 2 G
Appendix No. 43.
Appendix No. 43. to adjust these difficulties or to decide them, they must be brought before the tribunals of the country whose business it is to examine and pass judgment thereon.
Portugal and Spain.
The aforesaid Consuls-General, Consuls, Vice-Consuls, or Consular Agents, will then act as representatives of the testamentary or intestate estate; that is, that while retaining the administration and the right of definitively liquidating the inheritance, as well as that of making sales of effects as hereinbefore provided, they will watch over the interests of the heirs, with power of appointing advocates for the defence of their interests before the tribunals, to which it is understood that they will furnish the papers and documents proper for elucidating the question which is submitted to their judgment. When the sentence has been passed, the Consuls-General, Consuls, Vice-Consuls, or Consular Agents must execute it, unless they appeal against it, and then they shall of full right continue the liquidation which has been suspended until the termination of the litigation; and,
7. To arrange, when requisite, the guardianship or tutorage according to the laws of their country.
If a Spaniard should die in Portugal, or a Portuguese in Spain, at any place where there is no Consular Agent of his nation, the competent territorial authority shall proceed, in accordance with the laws of the country, to make an inventory of the effects, and to the liquidation of the property that has been left; and he must give an account as soon as possible of the result of his operations to the respective Embassy or Legation, or to the Consulate or Vice-Consulate nearest to the place where the testamentary or intestate estate has been left. But from the time when the Consular Agent appears, personally, or by means of any delegate, at the place where the said estate is situated, the intervention of the local authority will have to be regulated by the provisions in Article XIX of this Convention.
The Consuls-General, Consuls, and Vice-Consuls, or Consular Agents of the two nations shall act exclusively in making the inventories and in the other precautionary proceedings for the preservation of the hereditary property left by seamen and passengers of their country who died ashore or on board the vessels thereof during the voyage or in the port of their arrival.
The Consular-General, Consuls, Vice-Consuls, and Consular Agents may go themselves or send their delegates on board the vessels of their nation after they have been admitted to free pratique; they may question the captain or their crew; examine the papers on board; receive declarations respecting the voyage, the intention and incidents of the passage; draw up the manifests and facilitate the clearance of their vessels; and finally, accompany them before the tribunals of justice and offices of the Administration to assist them in the business which they may have to transact or in the demands which they may have to make, but no other intervention can in any way affect the privileges recognised by the laws, both in Spain and Portugal, of the professional interpreters.
It is stipulated that the judicial functionaries and the Custom-house officers and Agents cannot make visitations or examinations on board the vessels unless they are accompanied by the Consul, Vice-Consul, or Consular Agent of the nation to which they belong, or by a delegate of theirs.
They must likewise give notice in due time to the Consuls-General, Consuls, ViceConsuls, or Consular Agents, so that they may be present at the declarations which the captains and the crews may have to make before the tribunals and the local Administrations, in order to avoid any error or defect of interpretation which might prejudice the exact administration of justice.
The notice that is to be given to the Consuls-General, Consuls, Vice-Consuls, or Consular Agents for this purpose must fix the exact hour; and if those functionaries fail to appear in person, or to send some person to represent them, the business shall go on in their absence.
It is understood, however, that the present Article does not apply to the measures taken by the local authorities in conformity with the police regulations of the Customs and of the Board of Health, which shall still be applied independently of the concurrence of the Consular authorities.
In everything concerning the police of the ports, the loading and unloading of the vessels, and the security of the merchandize, property, and effects, the laws, statutes, and regulations of the country are to be observed.
The Consuls-General, Consuls, Vice-Consuls, or Consular Agents shall be exclusively charged with the internal order on board the merchant-vessels of their nation, and they alone shall settle the questions of whatever kind which occur between the captain, the officers, and the sailors, and especially those relating to their pay, and to the fulfilment of the engagements reciprocally contracted.
The local authorities cannot interfere except when the disorders which take place on board of the vessels are of such a nature as to disturb tranquillity ashore or in port, or when a person of the country or any one not inscribed in the roll of the vessel is mixed up in the disorders which occur.
In all other cases the aforesaid authorities shall confine themselves to giving effective aid to the Consuls and Vice-Consuls, when they require it, for the purpose of arresting and sending to prison any of the persons inscribed in the roll of the vessel, if for any reason they consider it expedient to do so.
The Consuls-General, Consuls, Vice-Consuls, or Consular Agents may cause to be arrested and sent either on board or to their country, such sailors and other person forming part of the crew of the merchant vessels of their nation as have deserted therefrom.
For this purpose they must address the competent local authorities in writing, and prove, by the presentation of the roll of the vessel, or an extract from that document, or by an authentic copy thereof, if the vessel has left, that the persons claimed really formed part of the crews. On such a request, so justified, the delivery of such persons must not be refused Moreover, all assistance and aid shall be given to the said Consular Agents for the discovery and arrest of such deserters, who shall be confined and maintained in the prisons of the country, at the request and at the expense of the Consul or Vice-Consul, until he shall find an opportunity of sending them back to their country.
This arrest cannot last for longer than three months, at the end of which, on three days' previous notice to the Consul, the prisoner shall be set at liberty, and he cannot be arrested again for the same cause.
Nevertheless, if the deserter should have committed any offence ashore, the local authority may defer the extradition until the tribunal has passed its sentence, and that sentence has been fully and completely executed.
The High Contracting Parties agree that the sailors and other persons of the crew who are subjects of the country in which the desertion takes place, are excepted from the stipulation of the present Article.
Whenever there is no stipulation to the contrary between the out-fitters, freighters, and insurers, the damages suffered in navigation by the vessels of the two countries which enter the respective ports voluntarily, or arrive under stress, shall be arranged by the Consuls-General, Consuls, and Vice-Consuls of their nation, unless subjects of the country in which the said Agents reside, or of a third Power, shall be interested in such damages, for in that case the examination and arrangement shall belong to the competent local authority, unless there be a compromise or agreement amongst all those interested.
When any vessel belonging to the Government or to the subjects of one of the High Contracting Parties is wrecked or stranded on the shores of the other, the local authorities must give information thereof to the Consul-General, Consul, Vice-Consul, or Consular Agent of the district, or for want of such to the Consul-General, Consul, Vice-Consul, or Consular Agent nearest to the place where the accident occurs.
All the operations relative to saving the Spanish vessels wrecked or stranded in the territorial waters of Portugal or Portuguese Possessions shall be directed by the ConsulsGeneral, Consuls, Vicc-Consuls, or Consular Agents of Spain; and, reciprocally, all the
Appendix No. 43.
Appendix No. 43. operations relating to saving the Portuguese vessels wrecked or stranded in the territorial waters of Spain or Spanish Possessions, shall be directed by the Consuls-General, Consuls, Vice-Consuls, or Consular Agents of Portugal.
Portugal and Spain.
The intervention of the local authorities only takes place in the two countries for the purpose of giving the Consular Agents the assistance which they require, of maintaining order and guaranteeing the interests of such salvors as do not belong to the crew, and of ensuring the execution of the regulations which are to be observed for the entry and issue of the merchandize saved.
In the absence, and until the arrival of the Consuls-General, Consuls, Vice-Consuls, or Consular Agents, or of the persons whom they may delegate for the purpose, the local authorities must take all necessary measures for the protection of the persons, and the preservation of the articles saved from the wreck.
No expenses of any kind shall be incurred by the intervention of the local authorities in any of the cases, excepting the costs occasioned by the salvage operations, and such other incidental charges as the national vessels would be liable to under similar circumstances.
In case of doubt as to the nationality of the wrecked vessels, the local authority shall be exclusively competent to take the proceedings mentioned in this Article.
The High Contracting Parties further agree that the merchandize and effects saved shall not be liable to the payment of any Custom-house duty, unless they are intended for internal consumption.
In all that concerns the placing of the vessels, their loading and unloading in the ports, docks, and roadsteads of the two States, the use of the public warehouses, cranes, scales, and other similar machines, and in general, all the facilities and arrangements respecting the arrival, stay, entry, and departure of the vessels, the national treatment shall be accorded in the two countries, without any difference, as it is the intention of the High Contracting Parties to establish the most perfect equality herein between the subjects of the two nations.
All the provisions of the present Convention shall be applicable, and shall have execution as well in the Spanish Peninsala and adjacent Islands, the Balearic and Canary Islands, and the Spanish possessions on the north coast of Africa open or hereafter to be opened to foreign commerce, as in Portugal and her islands, the Azores, and Madeira.
All the clauses of this Convention concerning testamentary and intestate estates, and shipwrecks and salvage, shall be applicable to the colonial possessions of each State, with the reservations contained in the special rule to which the said possessions are subject.
It is, moreover, agreed that the respective Consuls-General, Consuls, and ViceConsuls, or Consular Agents, as well as the Consular Chancellors, Secretaries, pupils, or Attachés, shall enjoy in the two countries all the exemptions. prerogatives, immunities, and privileges, now conceded, or which may be conceded to the Agents of the same grade of the most-favoured-nation.
The present Convention shall be in force for the space of ten years, reckoned from the day on which the ratifications are exchanged, but if neither of the High Contracting Parties shall have officially announced to the other one year before the expiration of the period, the intention of putting an end to its effects, it shall continue in force for both parties until a year after the said declaration has been made, at whatever time it may have taken place.
The present Convention shall be approved and ratified by the two High Contracting Parties, and the ratifications shall be exchanged at Lisbon as soon as possible.
In faith whereof the respective Plenipotentiaries have signed the present Convention, Appendix No. 43. and affixed to it the seal of their arms.
Done at Lisbon, in duplicate, on the 21st of February, 1870.
Portugal and Spain.
ANGEL FERNANDEZ DE LOS RIOS.
The preceding Convention has been duly ratified, and the exchange of the ratifications took place on the 17th of April last; the respective Plenipotentiaries, duly authorized for the purpose, having at the same time signed a Protocol, containing the following declarations, which are to be considered as forming an integral part of the said Convention, and they are:
The certificate of matriculation issued by the Diplomatic or Consular Agents, with which, according to Article III of the aforesaid Convention, the subjects of each State are to be provided, is a document absolutely indispensable to accredit the nationality. Without that ticket of matriculation neither can the Portuguese authorities allow the residence of Spaniards in Portugal, nor the Spanish authorities that of the Portuguese in Spain. The said certificate of Matriculation, the sole evidence to prove the quality of Portuguese or Spaniard in the respective neighbouring State, does not give any right of residence.
To confer that it must be viséed by the competent territorial authorities, to whom the certificate of matriculation is to be presented within forty-eight hours, with the complete reservation of the perfect right of vigilance on the part of each of the two Governments over the subjects of the other to guarantee the fulfilment of the laws and the regulations of police and public security, the ticket of matriculation presenting no obstacle to the denial of permission for a foreign subject to remain in the respective territory, if there be reason for such denial in the opinion of the proper authority. It is to be well understood, therefore, that the certificate of matriculation is the indispensable basis of residence; but it gives no right to obtain residence until it is completed by the authorization of the State in which the residence is intended to be established. This authorization is to be imprinted at the back of the certificate of matriculation by the competent authorities, who can in no case grant any other right of residence.
The Portuguese in Spain and the Spaniards in Portugal shall enjoy the greatest advantages which, in each of the two States, are now enjoyed, or which shall hereafter be enjoyed by the subjects of the most-favoured-nations, in regard to the proceedings and means for obtaining the grant of residence, as well as in regard to the amount of duties levied for it, the time of duration, and the process and punishment of the delinquents.
The words of Article III of the said Convention :-"Without the presentation of the said certificate of matriculation the Portuguese authorities will not in any case allow the residence of Spaniards in Portugal, nor the Spanish authorities that of the Portuguese in Spain," do not in any way include political emigrants, whose admission or asylum is regulated by special principles which the High Contracting Parties have had no intention of altering.