CASE OF THE “JAMES HAMILTON LEWIS.”
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 and the Imperial Government of Russia, to decide as to the differences relating to the affair of the schooner James Hamilton Lewis;
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 of America, in the name of the parties in interest;
That according to those declarations the arbitrator, being governed in his award by 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 indemnity which may eventually be due, and in addressing himself to that effect to the two high contracting parties, the arbitrator at the same time requested 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 the 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;
Whereas, in support of the claim relative to the seizure and confiscation of the schooner James Hamilton Lewis, the party claimant alleged the following facts:
The said schooner having set sail from San Francisco on the 7th [Page 455]May, 1891, bound on a voyage in the North Pacific Ocean on a fishing and hunting expedition, with Alexander McLean as captain, was, on the 2d August, 1891, about 20 miles east of Copper Island (latitude 55° 35′ north, longitude 167° 21′ east), when she was seized early in the morning by the Russian cruiser Aleoute. The captain of the schooner thinking it necessary to make land for the purpose of verifying his chronometer, directed his course toward Copper Island. At that place his vessel was compelled to lay to by a cannon shot from said cruiser, and a longboat approaching the schooner, a Russian naval officer ascended from the boat to the deck of the schooner and demanded the official log book, which was given him by the captain, and which he took with “him, returning to his vessel. Presently he returned with several armed men and ordered Captain McLean to leave his vessel and to come as a prisoner on board the Aleout with all of his crew, except seven men. Captain McLean refused to obey this order, and resumed his eastward course; then the commander of the cruiser began a pursuit, and, circling the James Hamilton Lewis, captured her by force of arms; the captain and members of the crew were conducted to Vladivostok; the vessel, with her cargo, her equipment, and the personal property of the captain, was confiscated; her captain, his officers, and crew were detained prisoners, and subjected to harsh and unjust treatment, and on being released, were left to find their way home as best they could;
Whereas the damage claimed by the party claimant on account of the parties in interest, for the seizure and confiscation of the vessel and the imprisonment of the captain and crew, reaches a total of $101,336 with interest at 6 per cent per annum;
Whereas the party defendant, replying to the allegations of the party claimant, maintains that when the James Hamilton Lewis was sighted by the cruiser she was only 5 miles at most from Medny Island (or Copper Island) and that the seizure took place at a distance of 12 (or 11) miles from the coast; that furthermore it is shown from a series of facts set forth by the defendant party that the James Hamilton Lewis must be presumed to have been guilty of illegal sealing in Russian territorial waters; that consequently the agents of the Imperial Government were justified in pursuing her even outside of such waters and in seizing and confiscating her with her cargo; that the imprisonment of the crew was caused by their resistance to arrest and the seizure of the vessel;
Whereas the defendant party, relying upon these allegations and subsidiarily contesting the amount of the demand, has requested that the claims of the party claimant be rejected;
Whereas the honorable delegate of the party claimant, Mr. Herbert H. D. Peirce, in the sitting of July 4, 1902, in the name of the Government of the United States of America made the following declaration:
declaration made to the honorable arbitrator, mr. t. m. c. asser, july 4, 1902, by the party claimant in the arbitration between the united states and russia, in reply to the question asked by the arbitrator relative to the extent of jurisdiction claimed by the united states over the bordering waters of the bering sea.
The delegate of the United States makes this declaration under the specific authority received by him from the Secretary of State of the United States on July 3, 1902, to wit:
The Government of the United States claims neither in Bering Sea nor in its other [Page 456]bordering waters an extent of jurisdiction greater than a maritime league from its shores, but bases its claims to such jurisdiction on the following principle:
The Government of the United States claims and admits the jurisdiction of any State over its jurisdictional waters only to the extent of a maritime league, unless a different rule is fixed by treaty between two States; even then the treaty States are alone affected by the agreement.
Considering that the arbitrator must decide:
I. Whether the seizure and confiscation of the schooner James Hamilton Lewis and her cargo, as well as the imprisonment of the crew, should be considered as illegal acts.
II. If in the affirmative, what amount of indemnity is due from the defendant party.
I. (a) Considering this question must be decided according to the general principles of international law and the spirit of international agreements in force and binding upon the two high parties at the time of the seizure of the vessel;
That at the time no agreement existed between the two parties containing in the special matter of sealing any derogation of the general principles of international law with regard to the extent of territorial waters;
That the defendant party sets forth that in the litigation between the United States of America and Great Britain before the Tribunal of Arbitration established by virtue of the treaty concluded at Washington the 29th February, 1892, the United States Government set up with regard to the right of jurisdiction in Bering Sea, against Great Britain, claims to an extent of far greater limits than those which are admitted by the general principles of international law, that these claims were prompted by the interest in the preservation of the seals and the suppression of illegal sealing, and that while the Government of the United States of America loyally submitted to the decision of the arbitrary court of 1893, which did not adopt its view, that view may nevertheless be employed to combat the claim filed by this Government in the present litigation;
Considering that whatever may be the desirability of the policy in in question as basis of an agreement between the States interested, it could not be obligatory without such an understanding even in the case of a government which at another time had pleaded it, but unsuccessfully, before a tribunal of arbitration;
Considering that the agreement which was entered into between the parties after the seizure and confiscation of the James Hamilton Lewis could not modify the effect of the principles of law generally accepted at the time of these acts;
Considering that the seizure of the schooner took place according to the party claimant at a distance of about 20, and according to the defendant party at a distance of 11 or 12, miles from Russian territory, and that even if the latter version be the true one, the act was accomplished outside Russian territorial waters, which is, moreover, admitted by both parties;
Considering that the policy of the defendant party according to which it was permitted to a war ship of a State to pursue beyond territorial waters a vessel whose crew had rendered themselves guilty of an illegal act in territorial waters or on the territory of that State could not be regarded as conforming to international law, since the jurisdiction of a State does not extend beyond the limits of the territorial sea, unless this rule has been derogated by a special convention;[Page 457]
Considering that it is not necessary to examine whether the presumptions alleged by the defendant party are serious enough to cause the admission that the crew of the James Hamilton Lewis had been guilty of sealing in territorial waters or on Russian territory;
Considering that the seizure and confiscation of the James Hamilton Lewis and her cargo, as well as the imprisonment of her crew, should in consequence be regarded as illegal acts, there remains but to fix the amount of indemnity due from the defendant party in this respect.
II. (b) Considering that the party claimant claims, in the first place, $25,000 for the confiscation of the vessel, but that that claim is exaggerated; that basing its claim on the figures to be found in the American publications sent to the arbitrator by the party claimant (Report of fur-seal investigations, 1899, Part III, p. 228), and more particularly on the value specified of the vessels having about the same or greater tonnage than the James Hamilton Lewis, and noting on the one hand that the schooner was in excellent condition, and on the other hand the fact that having gone to sea on the 7th March, 1891, nearly five months of her provisions had been consumed at the time of the seizure (August 2, 1892), there could not be attributed to this vessel, with her boats and equipment and her provisions, a value exceeding the sum of $9,000;
Considering that the party claimant claims for the 421 seal skins confiscated with the vessel $14 per skin, being a total of $5,936, but that upon minute examination of the several documents produced, as well as the depositions of experts, it appears that the price per skin would not exceed $12, which makes a total of $5,088 for the 424 skins;
Considering that the party claimant claims $36,400 for the loss of the probable catch of 2,600 skins, at $14 per skin, but that, while admitting that the principal loss of catch during the portion of the season still remaining after the seizure of the vessel may be claimed as an item of the damage, the number 2,600 skins is in no way justified, and seems exaggerated; that from statistics produced in litigation, while noting the number of seals already taken, and of the time which must elapse before the close of the season, it may be admitted that the product of sealing would not have exceeded 500 seals, which, at the rate of $12 per skin, gives a total of $6,000;
Finally, considering that the party claimant claims for the benefit of the crew of the James Hamilton Lewis for their imprisonment, their sufferings, mental and physical, etc., $2,000 for each of the 17 men, being $34,000; that the defendant party energetically denies that the complaints made by the crew on the subject of acts of violence and bad treatment to which they were subjected are founded, and that evidence in support of these allegations has not been submitted; that, however, the very fact of the illegal imprisonment give to the parties in interest a right to claim an indemnity, the amount of which, according to an equitable estimate, may be fixed at $8,500, or an average of $500 per person;
That consequently the total of indemnity due from the defendant party to the party claimant on account of the seizure and confiscation of the James Hamilton Lewis amounts to the sum of $28,588.
Considering that the defendant party consents to the adjunction of interest at 6 per cent per annum to the sum to be paid; that as an [Page 458]indemnity is granted for the loss of catch during the remainder of the season of 1891, it is just that the interest should only begin to accrue from the 1st January, 1892;
Therefore the arbitrator decides and pronounces the following:
The defendant party will pay to the party claimant on account of the claims presented by the parties in interest in the case of the James Hamilton Lewis the sum of $28,588 in United States money, with interest on that sum at 6 per cent per annum from the 1st January, 1892, until the day of full payment.