Papers Relating to the Foreign Relations of the United States, With the Annual Message of the President Transmitted to Congress December 3, 1900

Mr. Tower to Mr. Hay.

Embassy of the United States,
St. Petersburg, August 29, 1899.

No. 84.]

Sir: In compliance with the instructions contained in your dispatch No. 53¹ of the 22d of May, 1899, in relation to the proposed arbitration between the Government of the United States and the Government of Russia of the claims arising out of the seizure and detention by Russian cruisers of the American vessels James Hamilton Lewis, C, H. White, Kate and Anna, and Cape Morn Pigeon, I presented last June to the Count Mouravieff, Imperial minister of foreign affairs, a form of protocol upon which the proceedings of such arbitration should be established. This form, of which I have the honor to inclose to you a copy herewith, is made, in a general sense, to agree with those of former arbitrations of claims in America. It provides for the submission to the arbitrator of all the questions of law and fact brought into issue between the two Governments, together with copies of the correspondence, documents, and proofs which have already been submitted for the consideration of either Government in respect of these claims, and also for the appearance before the arbitrator of counsel for all the parties in interest, with authority to make oral arguments, at the discretion of the arbitrator, in addition to those written or printed, which were provided for.

The Russian Government, however, after having considered that method of procedure, has sent me a different form, which it prefers, a copy of which, and of Count Mouravieff’s note of the 12th (24th) of ‘August, which accompanied it, is respectfully submitted to you herewith.

This method provides only for written arguments before the arbitrator, in the form of memoranda and counter memoranda, by means of which each party shall set forth its case within limits as to time, which are specifically determined.

It is the same as that which is about to be employed for establishing the procedure in an arbitration of a similar case, soon to be held between Great Britain and Russia, and was originally proposed by the British Government to that of Russia for the purpose named.

The plan itself seems eminently a fair one for both parties. But I beg leave to suggest that, if it were accepted by the Government of the United States in the matter now under consideration, some modifications might be made in respect of certain details, as, for example, the compensation to be paid to the arbitrator ought to be fixed and an agreement established between the two Governments as to the share of it which each should pay. There should also be a limit of time within which the arbitrator should engage to render his final decision (the term of one year proposed by me was merely intended as a suggestion open to argument), and a limit of time within which the Government of Russia should engage itself to pay any indemnity awarded by the arbitrator.

It may, perhaps, be considered advisable also to inquire what the precise meaning is of the phrase relating to the arbitrator’s decision which provides that, besides following the general principles of international law, he shall also follow “the spirit of international agreements bearing upon the subject.” I understand that this provision is one that was suggested by Russia as a modification of the original plan presented by Great Britain, but has not as yet been accepted by the British foreign office.

I have, etc.,

Charlemagne Tower.

[Inclosure 1.]

Memorandum for a protocol.

Protocol of an agreement between the Imperial Russian, minister of foreign affairs and the ambassador extraordinary and plenipotentiary of the United States of America, for submission to an arbitrator of the claims arising out of the seizure and detention of the American vessels C. H. White, James Hamilton Lewis, Kate and Anna, and Cape Horn Pigeon.

The Government of His Majesty Nicholas II, Emperor of all the Russias, and the United States of America, through their representatives, the Count Mouravieff, Imperial Russian minister of foreign affairs, and Charlemagne Tower, ambassador extraordinary and plenipotentiary of the United States of America, have agreed upon and signed the following protocol:

Whereas the United States of America, having claimed indemnity from the Imperial Russian Government on behalf, respectively, of the owners, master, and crew of the schooner C. H. White, seized by the Imperial Russian cruiser Zabiaca in 1892; of the owners, master, and crew of the schooner James Hamilton Lewis, seized by the Imperial Russian cruiser Aleute in 1891; of the owners, master, and crew of the schooner Kate and Anna, seized by the Imperial Russian cruiser Zabiaca in 1892, and of the owners, master, and crew of the bark Cape Horn Pigeon, seized by an Imperial Russian armed vessel in 1892, it is agreed between the two Governments, with the consent of the said several parties in interest, given through their respective attorneys of record:

I. That the questions of law and of fact brought into issue between the two Governments in respect of each of these said several claims shall be referred to the decision of Monsieur T. M. C. Asser, doctor of laws, member of the Royal Council of State of the Netherlands, who is hereby fully authorized thereto as arbitrator.

II. That each Government shall submit to the arbitrator within three months from the day on which both Governments shall receive official notice from Monsieur T. M. C. Asser that he accepts the office of arbitrator by permission of his Government, copies of the correspondence, documents, and proofs which it has already submitted for the consideration of the other Government in respect of the said several claims.

III. That each Government may submit with the documents above described a separate argument, either written, typewritten, or printed, setting forth its own Views in each of the said several cases respectively.

IV. The case of each of the said vessels shall be submitted separately to the consideration of the arbitrator, and each of the said cases shall be decided by him singly and separately upon its own merits as to the questions of law and of fact brought into issue between the two Governments by the seizure and detention of the vessel to which it relates.

V. Each of the said several cases may be presented to the consideration of the arbitrator by separate counsel duly authorized thereto and empowered by either Government to act for it as counsel in such case, or the same counsel may be duly authorized and empowered by either Government to act for it in presenting two or more of the said several cases successively. And the arbitrator may, in his discretion, hear oral arguments of counsel in any or all of the said several cases in addition to the written or printed arguments above provided for. He may also call for evidence or arguments elucidating particular points not made clear to him if he shall deem it necessary to do so after having examined the documents submitted to him.

VI. The arbitrator shall render his decision as to all the said cases within one year from the date of the submission to him of the proofs, documents, and evidence by both parties. He shall decide whether, upon the proofs, documents, evidence, and arguments submitted to him, the owners, master, and crews, respectively, or any of them, of the said vessels, the C. H. White, James Hamilton Lewis, Kate and Anna, and the Cape Horn Pigeon, are or are not entitled to indemnification on the part of the Imperial Russian Government, and in the event that he shall decide this point affirmatively with respect to any or all of the said claimants, he will fix the amount of the indemnity to which each or either is entitled.

VII. Reasonable compensation to the arbitrator, and the other common expenses occasioned by the arbitration, shall be paid in equal moieties by the two Governments.

VIII. Any award made by the arbitrator shall be final and conclusive, and if in favor of the claimants or of either or any of them and of the contention of the United States of America, the amount or amounts so awarded shall be paid by the Imperial Russian Government not later than one year from the date of such award.

Done in duplicate at St. Petersburg this ----- day of ------, 1899.

[Inclosure 2.]

Count Mouravieff to Mr. Tower.

[Translation.]

Ministry of Foreign Affairs,
First Department, August 12, 1899.

No. 4131.]

In supplement to the communication No. 3227, of the 26th of June, 1899, the imperial ministry of foreign affairs has the honor to announce to the embassy of the United States that the form of protocol to establish rules of procedure in the arbitration of claims arising out of the seizure by Russian cruisers of the American schooners James Hamilton Lewis, C. H. White, Kate and Anna, and Cape Horn Pigeon has been carefully examined by the ministry of foreign affairs and the ministry of marine.

In view of the fact that in the form submitted by the embassy the limit of expenses does not appear to be sufficiently defined, and since in a similar case the ministry has recently proposed to the British Government another plan of arbitration which seems better to serve the interests of both parties to the litigation, the ministry of foreign affairs, with the concurrence of the ministry of marine, has the honor to submit herewith a copy in French, with the request that the embassy will communicate to it the opinion of the Government of the United States in regard to that plan.

[Subinclosure—Translation.]

The Imperial Government of Russia and the Government of the United States of America having agreed to invite M. Asser, member of the council of state of the Netherlands, to act as arbitrator in connection with the claims of the schooners James Hamilton Lewis, C. H. White, Kate and Anna, and Cape Horn Pigeon, arising out of their detention or seizure by Russian cruisers on the charge of having been illegally engaged in fur-seal fishing, the undersigned minister of foreign affairs of His Majesty the Emperor of Russia having been duly authorized thereto, has the honor to make hereby the following declaration, in exchange with a similar declaration upon the part of the Government of the United States of America.

The arbitrator shall take cognizance of the claims for indemnity which have been presented to the Imperial Government of Russia by the Government of the United States on behalf of the parties in interest in the said schooners.

The party claimant shall present to the arbitrator, within three months from the date of the exchange of the present note with an identical one of the United States Government, a memorandum in support of its claim, and shall hand immediately a copy thereof to the party defendant.

Within three months from the date of the receipt of the said copy the party defendant shall present to the arbitrator a contramemorandum of which it shall hand immediately a copy to the party claimant.

Within three months after the receipt of such contramemorandum the party claimant may, if it sees fit to do so, present to the arbitrator a new memorandum, of which it shall hand immediately a copy to the party defendant; and the latter may also, within three months from the receipt thereof, present to the arbitrator a new contramemorandum, of which it shall hand immediately a copy to the party claimant.

The arbitrator shall be authorized at the request of either of the parties to extend for a period of not longer than thirty days any of the intervals of time hereinabove provided for.

After the exchange of memoranda as herein aforesaid no communication, either written or verbal, shall be addressed to the arbitrator, unless he shall request from the parties, or either of them, supplementary information to be given in writing.

The party so giving information to the arbitrator shall hand immediately a copy of its communication to the opponent, who may, if he thinks fit to do so, present in writing to the arbitrator, within one month from the date of his receipt thereof, comments relating to the subject-matter of the said communication, and a copy of such comments shall be sent immediately to the party opponent.

The arbitrator shall have authority to decide all questions that may arise in regard to procedure in the course of the arbitration.

In his decision, which shall be communicated by him to each of the two Governments interested, the arbitrator, following the general principles of international law and the spirit of international agreements bearing upon the subject, shall determine as to each claim brought against the Imperial Government of Russia, whether such claim is well founded; and, if he decides affirmatively, whether the facts upon which each of the said claims is based have been proven.

In that event the arbitrator shall fix the amount of the indemnity to be paid by the Russian Government in respect to the claims presented by the parties in interest in the said vessels.

If he wishes to do so without, however, lessening the obligation incumbent upon the party claimant to prove the damages suffered, the arbitrator may invite each Government to appoint a commercial expert to aid him in that capacity—in fixing the amount of the indemnity.

The Imperial Government of Russia declares itself ready, in exchange with a similar agreement upon the part of the Government of the United States, to assume all expenses which may or shall be incurred in the presentation of its side of the case in this matter; also to accept as a final judgment the decision pronounced by the arbitrator within the limits of the present agreement, and to submit thereto without any reservation whatsoever.

1. Not printed.