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THE CASE OF THE “CAPE HORN PIGEON.”

The undersigned, Tobie Michel Charles Asser, member of the council of state of the Netherlands, exercising the functions of arbitrator, which he has had the honor to have conferred upon him by the Government of the United States of America, and the Imperial Government of Russia, to decide as to the differences relating to the affair of the bark Cape Horn Pigeon:

Whereas by virtue of the declarations exchanged at St. Petersburg the 26th August (September 8) 1900, between the aforesaid two Governments, the arbitrator shall take cognizance of the claims for indemnity for the seizure and detention of certain American vessels by Russian cruisers, brought against the Imperial Russian Government by the Government of the United States in the name of the parties in interest;

That according to these declarations the arbitrator, following in his award the general principles of international law and the spirit of international agreements applicable to the subject, shall determine with regard to each claim filed against the Imperial Russian Government, whether it is well founded, and if so, whether the facts upon which it is based are proved;

That, furthermore, it is recognized that this stipulation shall have no retroactive force, and that the arbitrator will apply to the cases in litigation the principles of international law and the international treaties which were in force and binding upon the parties engaged in this litigation at the time the seizure of the vessels took place;

Finally, that the arbitrator shall fix the amount of the indemnity which may be due from the Russian Government on account of the claims presented by the parties in interest;

Whereas, after a minute examination of the memoranda and counter memoranda exchanged between the high-contracting parties, as well as of all the exhibits of each side, the arbitrator, availing himself of the right accorded him by the said declarations of St. Petersburg, invited the two Governments to name commercial experts to aid him in fixing the amount of the indemnity which would eventually be due, and in addressing himself to that effect to the two high-contracting parties the arbitrator at the same time prayed them to furnish supplementary information regarding the points of law, indicated by him;

Whereas, in the sittings held by the arbitrator at The Hague in the hall of Permanent Court of Arbitration, from the 27th June to the 4th July, 1902, he heard the depositions of experts in the presence of the agents of the two high-contracting parties, who on that occasion furnished the supplementary information asked for by the arbitrator;

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Whereas, in support of the claim relative to the seizure and detention of the American whaler Cape Horn Pigeon by an armed cruiser of the Imperial Russian Government, the party claimant alleged the following facts:

The bark Cape Horn Pigeon, constructed for whaling, having set sail from San Francisco on the 7th December, 1891, with a crew of thirty men besides the captain (named Scullun or Scullan) for a voyage in the seas of Japan and Okhotsk was, on the 10th September, 1892, in the Sea of Othotsk, on the high seas, engaged in whaling, when it was seized and detained by the commander of a vessel of the Russian navy (cruiser) and conducted to Vladivostok, where it was detained by the Russian authorities until the 1st October, 1892. After the seizure of the bark, her crew was placed aboard the Russian schooner Maria (which according to the declaration of the defendant party had been seized by the Russian cruiser for illegal sealing), and was forced to conduct her into the port of Vladivostok. In that town, after they had been told that they would be lodged in the guard house, this shelter from cold and hunger was refused them, and the captain found himself obliged to secure lodgings for them in a shed. They were detained from day to day without being told the reason, and finally, on the 1st October, 1892, they were sent back to their vessel.

Whereas the defendant party recognizes that in this case a regretable error occurred, since the naval officer (Lieutenant Von Cube) was mistaken in suspecting the Cape Horn Pigeon of being engaged in illegitimate hunting, and consequently the Imperial Government, recognizing its responsibility, offered to pay a pecuniary indemnity for the actual losses caused to the aliens by the acts of its governmental agents;

Whereas the task of the arbitrator in this affair consists in fixing the amount of indemnity to be paid by the defendant party;

Whereas the claim of the party claimant amounts to a total of $80,700, with interest at 6 per cent per annum from the 10th of September, 1892, and that the defendant party has offered to pay $2,500 also with interest at 6 per cent per annum;

Whereas the defendant party thinks that the first item of the claim amounting to $3,040 for the expenses of the owner of the Cape Horn Pigeon on account of the seizure should be reduced to $1,010, and in fact, the amount claimed not being sufficiently justified, it might be reduced in conformity with the conclusions of the defendant party;

Whereas, for the services of the crew of the Cape Horn Pigeon for conducting the Russian schooner to Vladivotsok, the sum of $1,000, offered by the defendant party in lieu of the sum of $1,200 claimed by the party claimant, seems sufficient;

Whereas the defendant party admits as justified the claims for provisions consumed, $200; for lodgings for the crew, $210; for personal expenses of Captain Scullun, $50; total, $460;

Whereas the party claimant claims $45,000 for loss of the catch during the time which transpired between the seizure of the whaler and the day on which he was able to resume whaling; and the defendant party contests the underlying principle of that part of the claim, alleging that it is question of the profit of an enterprise liable to risks and which may readily terminate in loss, and applying in support of the assertion the award of the court of arbitration of 1872 in the case of the “Alabama claims,” by which the claims for indemnity for indirect damages were set aside;

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Considering that the general principle of civil law, according to which the damages should include an indemnity, not only for the loss suffered, but also for the profit of which one has been deprived, is equally applicable to international litigation, and that in order to apply it, it is not necessary that the amount of the profit of which one is deprived should be exactly determined, but that it suffices to show that in the natural order of things one would be able to realize a profit of which one is deprived by the act which gives rise to the claim;

Considering that in this case it is not a question of indirect damage, but of direct damage, the amount of which should be estimated;

Considering the amount of that part of the claim which the party claimant takes for starting point, the average number of whales taken in one season, which he estimates at 8, and from which he deducts 2, which Captain Scullun had already taken, leaving 6 as probable number of whales still to be caught by him, if the vessel had not been arrested and seized;

Considering, however, that according to Captain Scullun’s own declaration he had taken 28 whales in four seasons, which make 7 per season, and whereas 7 indicate more justly the average catch for the whaler Cape Horn Pigeon during one season, which, after deducting the 2 whales already caught, gives 5 for the remaining probable catch;

Considering that with regard to the approximate value of a whale at the period when the product of the catch of the Cape Horn Pigeon in 1892 could have been sold, the result of the inquiry which took place in this arbitration, and the information furnished to the arbitrator, show that the average weight of the bone to be obtained from 1 whale may be estimated at 1,200 pounds and the average price at $4 per pound, the average quantity of oil at 100 barrels and the average price at $12 per barrel, which makes a total of $6,000 per whale and $30,000 for 5 whales, or after the deduction of $1,500, instead of $1,800 deducted by Captain Scullun, $28,500;

Considering, with regard to the indemnity claimed for the members of the crew at $1,000 per man to be $31,000, that it is not proved that the members of the crew were subjected to the bad treatment of which they complain, but that, on the other hand, the very fact that they were detained against their will at Vladivostok for about three weeks in consequence of the illegal seizure of their vessel, entitles them to indemnity independently of that which is due them for having been forced to conduct a-Russian vessel to Vladivostok, and the amount of this indemnity should be fixed at $7,750, or an average of $250 per capita;

That, consequently, the total of damage due from the defendant party to the party claimant as a result of the detention and seizure of the Cape Horn Pigeon amounts to the sum of $38,750;

Considering that the defendant party recognized as perfectly regular the addition of interest at 6 per cent per annum;

Therefore, the arbitrator decides and pronounces the following:

The defendant party shall pay to the party claimant on account of the claims presented by the parties in interest in the case of the Cape Horn Pigeon the sum of $38,750 in United States money, with interest on that sum at 6 per cent per annum from the 9th of September, 1892, until the day of the payment in full.


T. M. C. Asser.