Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 3, 1889
Sir Edmund Monson to Mr. Blaine.
Sir: I have the honor to transmit to you herewith my award as arbitrator under the convention signed at Copenhagen by the representatives of the United States and of Denmark on the 6th of December, 1888, for the settlement of the claim of Carlo’s Butterfield & Co.
A duplicate of this award will be forwarded to the Danish Government.
I have, etc.,
The undersigned, Her Britannic Majesty’s envoy extraordinary and minister plenipotentiary to his majesty the King of the Hellenes, having been nominated by a convention signed at Copenhagen on the 6th of December, 1838, arbitrator in respect of the claim preferred by the Government of the United States agaiust that of Denmark for compensation due by the latter to the former on account of the alleged seizure and detention in the years 1854 and 1855 of the steamer Ben Franklin and the bark Catherine Augusta by the authorities of the island of St. Thomas, in the Danish West Indian Islands, has had before him, and was duly considered, the evidence tendered by the respective parties to the said convention, and has carefully studied the arguments in which the merits of the case are set forth according to the views of the two Governments.
The argument of the United States places the question before the arbitrator as follows: What indemnity is due from the Government of Denmark for losses and injuries growing out of the following wrongful acts committed by the Danish authorities at the island of St. Thomas, West Indies:
- First. The seizure and detention of the American bark Catherine Augusta.
- Second. The refusal to her of the ordinary right to land her cargo for the purpose of making repairs, and herein of the exaction of unusual, onerous, and illegal conditions.
- Third. The seizure and detention of the steamer Ben Franklin.
- Fourth. The wrongful firing of a shot into the last-named st amer, and the injuries resulting there from.
The argument of the United States contends that, as it is indubitable that a vessel injured by the elements has a right to put into a friendly port for repairs, and a further [Page 159] right to land her cargo in order to effect such repairs, and as it is equally indubitable that a peaceful vessel may not, under ordinary circumstances, be fired into and the lives of those on board imperiled, the mere statement of the case, with regard to the facts of which there is no material divergence in the evidence presented by the respective parties, establishes, under the principles of international law, an indubitable ground upon which the claim of indemnity may safely be permitted to rest.
The Danish Government, on the other hand, argues, in the first place, that, setting aside the original merits of the case altogether, the amount of time which was allowed to elapse before the claim was first presented, and the intermittent manner in which it was subsequently pressed, constitute in themselves a conclusive objection to the validity of the claim.
It appears convenient to settle this preliminary point at once; and the arbitrator has no difficulty in deciding that, although neither Butterfield and Company nor the United States Government have used due diligence in the prosecution of the claim, and have thereby exposed themselves to the legitimate criticism of the Danish Government on their dilatory action, the delay caused thereby can not bar the recovery of just and reasonable compensation for the alleged injuries, should the further consideration of the merits of the case result in the decision that such compensation is due.
Those merits depend, as is legitimately stated in the Danish argument, upon the answers which the arbitrator must return to three questions which relate to the legality of the measures adopted by the Danish authorities with regard to the two vessels—measures which, as aforesaid, are described by the argument of the United States as “seizure and detention.” The question of the firing upon the Ben Franklin will be treated separately.
The three questions above referred to are:
- Had the local authorities legitimate grounds of suspicion warranting them in taking precautions?
- Is there reasonable ground for objecting to the nature and extent of the measures taken by those authorities?
- Were those measures allowed to remain in force for a longer period than necessary?
- First. The careful consideration of the whole correspondence set forth in the evidence submitted by the respective parties had led the arbitrator to decide the first question in the affirmative, and he consequently declares that the authorities of St. Thomas were warranted in taking precautions to prevent the possible violation of the neutrality of the port by acts of the nature of an equipment of armed vessels intended to operate against a friendly power.
- Second. In deciding the second question, the arbitrator must point out that the words “seizure and detention “constitute an erroneous description of the measures taken by the Danish authorities. Those measures consisted in exacting from the consignees a bond of moderate amount, for which their personal guaranty was accepted, that the vessels, if allowed to be repaired, would not be employed for purposes of aggression against a power with which Denmark was at peace; and in a subsequent guaranty that the cargo, consisting of munitions of war, which had to be landed in order that the ships might be repaired, should not be replaced on board or re-exported without satisfactory proof being given to the authorities as to its destination being legitimate one, this latter precaution being obligatory on the governor in virtue of the law which forbids the free export of arms. The ships were in no sense seized nor detained, and the precautionary measures proposed by the governor of the island were cheerfully acquiesced in by the consignees and the commercial agent of the United States. The arbitrator is of opinion that these measures were reasonable, and in no sense oppressive, and that they can not be considered to have been extorted under duress.
- Third. It appears from the correspondence that no request for permission to reload the cargo was made to the governor of St. Thomas until the 7th of May, 1855, and that that permission was almost immediately granted; nor is there in the evidence presented to the arbitrator anything to warrant the presumption that had such a request been preferred at an earlier date it would have been refused. The arbitrator must, therefore, decide that the precautionary measures were not maintained longer than was necessary.
The conclusions arrived at by the arbitrator on these points will, therefore, have the effect of disallowing all claim for compensation for the measures taken by the Danish authorities at St. Thomas in regard to the vessels Ben Franklin and Catherine Augusta conjointly.
There remains the question of the firing upon the Ben Franklin.
The arbitrator is of opinion that the temporary engagement of the steamer by the representatives of the Royal Mail Steam-ship Company to convey passengers and mails to Barbadoes did not ipso facto entitle her to the enjoyment of those privileges accorded [Page 160] by the Danish Government to the regular packets of the company, in virtue of which they were allowed to leave the port of St. Thomas at night without complying with the formalities imposed on all other merchant vessels, including even Danish mail packets. It is clear that the captain of the Ben Franklin neglected to comply with these formalities, and consequently the Danish Government can not be fixed with the responsibility of what unfortunately ensued. It is pertinent to add that the assertion that the action of the commandant of the fort was subsequently disapproved by his superiors and that he was dismissed from his appointment is absoluely erroneous.
The arbitrator has therefore only further to declare that neither in respect of the firing upon the steam-ship Ben Franklin, any more than in the treatment of that steamer and of her consort, the Catherine Augusta, is any compensation due from the Danish Government.