Mr. Foster to Mr.
Gresham.
Agency of
the United States,
Paris, August 17,
1893.
Sir: In fulfillment of what I regard as my duty
before terminating my services as agent, to wit, to place my Government in
possession of all information I have acquired which may be useful in future
negotiations or action connected with the fur-seal arbitration, I direct
attention to the subject of the British claims for damages on account of the
seizure of certain vessels in Bering Sea in 1886, 1887, and 1889.
It will be seen from the decision of the tribunal that a finding of facts,
agreed upon by counsel, was rendered in accordance with Article VIII of the
treaty. This finding will be found to relate entirely to the facts of the
seizures and, as agreed to by counsel, did not in any manner involve the
question of liability or the value or ownership of the vessels. By reference
to Protocol XXX, of May 31, it will be seen that the British Government has
withdrawn all claim for damages under Article V of the modus vivendi of
1892. In further confirmation of this I inclose the statement of the British
counsel before the tribunal on the subject.
[Page 230]
In view of these facts it would seem that the only question of damages open
for the consideration of the two Governments was that arising out of the
seizure of vessels in Bering Sea. The claim son this account as presented by
the British Government will be found in the Schedule of Claims annexed to
and bound with the British Case, and on page 315 of the British Counter
Case.
The defense of the United States, so far as it was thought necessary to make
one under Article VIII of the treaty, will be found in the United States
Counter Case, pages 129 to 135, and the evidence there cited, contained in
the appendix thereto, as also in the printed United States Argument, pages
215 to 227.
The total amount of the British claim, as presented at page 60 of the
Schedule of Claims, is $439,171, of which $357,353 consist of a claim for
prospective earnings, which I suggest can not be properly asserted, for the
reasons set forth in the United States Argument.
It will appear from an examination of the evidence in the Case and Counter
Case of the United States that most of the vessels appear in reality to be
the property of American citizens. Further and more searching investigation
may show that others of the vessels were the property of our citizens. In
this connection, I refer to a correspondence at Paris had by me with the
British agent in reference to the citizenship of Boscowitz, owner or
mortgagee of several of these vessels.
I also inclose a memorandum in regard to the value of several of the seized
vessels, which may be of service in the further examination of these
claims.
Mr. Robert Lansing, associate counsel in the arbitration, made a visit in
1892 to Victoria and San Francisco for the purpose, of collecting evidence
in relation to this branch of the case, and I have no doubt he would
cheerfully go to Washington at any time, if you or the person having charge
of the Government’s interests in this matter should think it desirable to
confer with him.
I am, etc.,
[Inclosure 1.—Extract from British report
of proceedings of Tribunal of Arbitration, May 31, 1893, pp.
1197–1198.]
Sir Charles Russell: * * * I wish to relieve,
and am glad to relieve, the tribunal of one question at all events, and
that is the question of damages under Article V of the modus vivendi of
1892, which is also remitted to this tribunal. This, sir, will not need
any troublesome reference, because it is an admission I am going to
make. At page 216 of the printed argument of the United States (you need
not, sir, trouble to refer to it, if I may be permitted to say so,
because it is not a point of difference between us—it is a matter I am
clearing out of the way) the United States give up any claim to damages
under that treaty; and I have to say, on the part of Great Britain, and
speaking with authority in the matter, that although they had under the
earlier modus vivendi to pay a very large sum for damages to their
Canadian sealers—a sum, I think, exceeding $100,000—looking to the fact,
nevertheless, that under the modus vivendi in question a great many, at
least, if not all of the sealers who would have resorted to the eastern
part of Bering Sea had made catches of seals in other parts of the
ocean, and although I think it might be argued that this tribunal is
required by Article V to give damages on the basis of a limited catch or
catches which might have been taken in Bering Sea—in all the
circumstances
[Page 231]
of the case
Great Britain does not desire to press that view upon the tribunal, and,
therefore, will ask for no finding for damages upon and under that fifth
article of the modus vivendi; but it probably will be convenient in the
award which the arbitrators may think proper to make, to state upon its
face that both the United States and Great Britain have abandoned any
claim for damages under that head.
The President. You are agreed also as to that,
Mr. Phelps?
Mr. Phelps. Yes.
[Inclosure.]
Mr. Tupper to Mr.
Foster.
Dear Mr. Foster: Referring to the suggestion
advanced on page 130 of the United States counter case, that some of the
vessels for the seizure of which damages were claimed by Her Majesty’s
Government were owned by citizens of the United States, and to the
promise made to the tribunal by the Attorney-General on the 11th of May,
that, if possible, the arbitrators should not be troubled with the
consideration of the subject, I now write to inquire whether we can
agree upon the facts in dispute in order that the Attorney-General’s
suggestion should be made effective.
As regards Mr. Franks, I have not yet complete evidence. As regards Mr.
Boscowitz, this gentleman denies that he is the owner of the vessels,
and further denies that he is an American citizen. And, as at present
advised, I shall have to ask the tribunal so to hold, unless, of course,
it is possible, as I hope it may be, for me to come to an arrangement
with you upon this matter.
Your suggestion being first made in your counter case, it was not
possible to produce in court evidence on the point in the ordinary way;
but Mr. Boscowitz happens at the present moment to be in Paris, and I
would suggest that a fair way of eliciting the actual facts would be
that we should examine and that you should cross-examine Mr. Boscowitz
in the presence of a shorthand writer. His evidence might then be laid
before the arbitrators as material for a decision, if this should be
thought necessary by either side.
Yours, very truly,
