AFFAIR OF THE “KATE AND ANNA.”
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 vessel Kate and Anna;
Whereas by virtue of the declarations exchanged at St. Petersburg, August 26 (September 8), 1900, between the aforesaid two Governments, the arbitrator must 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 United States of America in the name of the parties in interest;
That according to those 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 in the affirmative, whether the fact 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 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 eventually 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 of 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 would eventually be due, and that when addressing himself to that effect to the two high contracting parties the arbitrator at the same time requested them to furnish supplementary information with regard to 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 agents of the high contracting parties, who on that occasion furnished the supplementary information asked by the arbitrator;[Page 465]
Whereas in support of the claim relative to the schooner Kate mid Anna and the confiscation of the seal skins found aboard that vessel, the party claimant alleged the following facts:
On August 12, 1902, while the said schooner, whose captain was Claus Lutjens, was on the high sea beyond the jurisdiction of territorial waters of all nations, and at a distance of more than 30 miles from the nearest Russian land, and while no member of the crew was either hunting or fishing, the said schooner having been compelled to lay to, was overhauled by the Russian naval cruiser Zabiaka, whose commander ordered Captain Lutjens to come aboard the cruiser and to bring with him all of his ship’s papers, which was done, and the captain delivered all of his documents to the commander of the Russian cruiser. The latter then ordered that the 124 seal skins which were aboard the schooner be delivered to him, and he declared them confiscated, the captain of the schooner having presumably engaged in sealing in Russian territorial waters. Captain Lutjens, being sent back to his vessel and permitted to continue his course, resolved to quit sealing and return immediately to San Francisco. The commander of the Russian cruiser, before permitting the captain to depart, gave him warning, by which, according to Captain Lutjens, he was ordered to quit sealing and go home, while, according to the defendant party, the warning consisted only in the prohibition to seal in Russian territorial waters.
Whereas the defendant party recognized that under the conditions of the encounter with the Kate and Anna, and from the verification of her log book, that the commander of the Russian cruiser had serious reason to consider the American vessel with suspicion, and even to conclude that a portion, at least, of the product of her sealing had been obtained in an illigitimate manner in Russian territorial waters; however, the setting at liberty of the vessel itself, after seizing the cargo which rendered her suspicious, shows a great lack of decision on the part of the cruiser, partly explained by the absence of positive proofs of Captain Lutjens’s guilt; and, therefore, the defendant party, conformedly with the desire to maintain at all times the friendly relations with the American Government, declared its readiness to acknowledge the obligation to pay an indemnity for the actual losses which were caused by the lamentable fact concerning the schooner Kate and Anna.
Whereas, however, the defendant party insists that the amount of damage justly claimed from it reaches only the sum of $1,240 for the 124 seal skins at $10 each, with interest at 6 per cent per annum from the 12 August 1892;
Considering that the claimant party claims it is right to demand not only the amount of the price of the 124 seal skins illegally confiscated, but also the loss of the probable catch of 625 seals, basing on this fact that after the schooner Kate and Anna was stopped the captain resolved not to continue sealing, but to return immediately to San Francisco, and that this resolution was taken in consequence of the warning given him by the commander of the Russian cruiser;
Considering that whatever may have been the tenor of this warning, it could not have the effect of preventing the captain of the Kate and Anna from continuing sealing, and that consequently if the said captain nevertheless resolved to return at once to San Francisco, the defendant party is not responsible for the loss or profit which might have accrued to the schooner;[Page 466]
Considering with regard to the indemnity due for the confiscation of the 124 seal skins, for which the claimant party demands $14 per skin, that the defendant party offers $10 per skin, being a total of $1,488 for the 124 skins;
Therefore, the arbitrator decides and pronounces the following:
The defendant party will pay to the claimant party on account of the claims presented by the parties in interest in the affair of the Kate and Anna the sum of $1,488 in United States money, with interest on that sum at 6 per cent per annum from the 12th August, 1892, until the day of full payment.