Case No. 1: The Cape Horn Pigeon, American whaling bark, arrested and seized in the Sea of Okhotsk by an armed vessel of the Imperial Russian Government, taken to Vladivostok, detained there until the end of the whaling season, and finally released without trial.[Page ] [Page 11]
The Cape Horn Pigeon, American whaling bark, arrested and seized in the Sea of Okhotsk by an armed vessel of the Imperial Russian Government, taken to Vladivostok, detained there until the end of the whaling season, and finally released without trial.
statement of the facts in the case.
The Cape Horn Pigeon was an American bark, duly registered in accordance with the laws of the United States at the port of New Bedford, in the State of Massachusetts, and owned and officered by American citizens. She was equipped for a whaling voyage in the North Pacific Ocean, upon which she set sail on December 7, 1891, and on the 10th day of September, 1892, while peaceably engaged in the pursuit of her legitimate calling on the high seas in the Okhotsk Sea, many miles from any land and wholly without Russian jurisdiction, she was seized by the Imperial Russian authorities and forcibly distrained and taken to Vladivostok, to the great injury of her owners, officers, and crew.
The agents and managing owners of the vessel were, at the time of the seizure, Joseph Wing and William R. Wing, both of New Bedford, in the said State of Massachusetts, copartners, doing business under the firm name of J. & W. R. Wing.
On the 10th day of September, A. D. 1892, the said Cape Horn Pigeon, her outfits and cargo, were owned as follows: J. & W. R. Wing, of New Bedford, Mass., held four sixty-fourths; Thomas M. Hart, of New Bedford, Mass., held two sixty-fourths; John Wing, of New Bedford, Mass., held two sixty-fourths; Edward F. Potter, of Dartmouth, Mass., held eleven sixty-fourths; Edward F. Potter, executor of the will of William Potter, second, of Dartmouth, Mass., deceased, held eight sixty-fourths; Michael Baker, administrator de bonis non with the will annexed of Michael Baker, 3d, of Dartmouth, Mass., deceased, held four sixty-fourths; George W. Collins, of Dartmouth, Mass., held one sixty-fourth; Charles C. Church, of Gosnold, Mass., held two sixty-fourths. The said ownership duly appears in the certificate of the collector of customs of the port of New Bedford, a copy of which is hereto annexed, marked “Exhibit A.” By the said certificate it appears that the estate of Alexander H. Seabury was the owner of ten sixty-fourths. Said interest had been conveyed previous to the 10th day of September, A. D. 1892, to Louisa B. Haskell, daughter of the said Alexander H. Seabury, deceased. A certified copy of the last register of the said bark, dated the 30th day of November, 1887, is also hereto annexed, marked “Exhibit B.” Subsequent to that date the interest therein specified of Jonathan Bourne, two sixty-fourths, had been conveyed to Joseph and William R. Wing; the three sixty-fourths of Abner Potter, jr., of Portsmouth, R. I., therein stated, had been acquired by Edward F. Potter; the four sixty-fourths of Robert Allen therein stated had also [Page 12]been acquired by Joseph and William R. Wing, who had conveyed to Thomas Scullun four sixty-fourths, making the interest of the said Joseph and William R. Wing twenty sixty-fourths, as stated in the collector’s certificate. All and each of the said owners are native American citizens, and they each claim in their own right were each citizens of the United States when the claim had its origin, and their domicile was then as herein stated.
The officers and crew of the said bark on the 10th day of September, A. D. 1892, were, as stated in the crew list hereto annexed, marked “Exhibit C,” stating their names, places of birth, places of residence, of what country citizens or subjects, age, height, complexion, and color of hair. They numbered 30 besides the captain. The officers and crew upon this voyage were shipped in accordance with the provisions of the shipping paper, a copy of which is hereto annexed, marked “Exhibit D,” in which the lay or share of each officer and member of the crew is stated, except that of the captain, which was by agreement—and a copy of the said agreement is hereto annexed—marked “Exhibit E.” The compensation of the said officers and crew is, by the articles of said shipping paper, fixed as a share of the net proceeds of the voyage, and said proceeds include whatever is recovered by the owners in place of catch from whatever source. The said claims of the said officers and crew are owned by the said officers and crew respectively, except in the cases of some of the crew which have been assigned to the owners in consideration of the advance by the owners of different sums to such of the crew as made request for this to be done. Owing to the small quantity of oil brought in by the bark, as hereinafter stated, most of the seamen are in debt to the ship, their advance and ship’s bill amounting to more than their pay, and thereupon payments were made by the owners to such of the crew as requested it, and their claims were assigned to the owners.
The said bark was built in Dartmouth, Mass., in the year 1854, for the whaling business and has always been engaged in the whaling business.
Said bark was purchased by the said Joseph and William R. Wing at the date of the register in the fall of 1887, having been owned and managed previously to that time by William Potter from the time she was built. The said Joseph and William R. Wing were owners in her at the time she was built and have continued so ever since. She was of 201 42/100 tons burden, present measurement. She was fitted out at San Francisco, Cal., by the said J. and W. R. Wing, in December, 1891, for a year’s whaling voyage in the Japan and Okhotsk seas. She was fully equipped for said whaling voyage, and neither directly or indirectly was fitted for a sealing voyage, or for aiding or assisting others engaged in sealing, and in the equipment and fitting out aforesaid whaling Toy age no intention was had of taking any fur seal on land or water on the Okhotsk Sea or elsewhere; no tackle therefor was put on board, and no material for the preservation of seal skins. A certified copy of the clearance of said bark on said voyage is hereto annexed, marked “Exhibit F,” and a certified copy of the manifest, marked “Exhibit G,” the originals of said papers being duly filed in the custom house.
As hereinbefore stated, the said bark sailed upon the said whaling voyage on December 7, 1891. The history of the said voyage of the said (Cape Horn Pigeon is narrated in detail in the affidavit of the captain [Page 13]of the bark, Thomas Scullun, a duly authenticated copy of which affidavit is hereto annexed, marked “Exhibit H.”
From said affidavit it appears that on the 10th day of September, A. D. 1892, the Cape Horn Pigeon was in the Okhotsk Sea, upon the high seas, where she had a perfect right to be, engaged in her legitimate calling of whaling; that she had twice previously during the said voyage called at the Russian port of Vladivostok, where her captain had not only publicly announced his intention of whaling in the Okhotsk Sea, but had communicated with the Imperial Russian Government, asking permission to enter and fish for whales in certain bays which he deemed to be within Russian jurisdiction. The reason for preferring this request for permission to visit the said bays was the previous issuance by the Imperial Russian Government of a notice to mariners forbidding them to fish for whales within the limit of 3 miles from the Russian coast or in the bays included within such 3-mile limit, a copy of which notification having been published in the New Bedford Whalemen’s List, a journal devoted to the whaling interest, published in America, on December 7, 1875, a copy of which is annexed to the deposition of W. R. Wing, hereto annexed and hereinafter referred to, said deposition being marked “Exhibit V,” and said copy of said notification being marked “Annex 9” thereof. And said assertion as to the issuance of such notification to mariners, forbidding them to fish for whales within said bays, is further supported by the official document of the Imperial Russian ministry of marine, dated 1875, a copy of which is hereto annexed, together with a sworn translation of a paragraph on page 91 of said document, all included in Exhibit C C. This permission to visit the said bays was not granted, but neither was any intimation given to the captain that the Imperial Russian Government claimed jurisdiction over the entire waters of the Okhotsk Sea or the right to prohibit its navigation for any purpose whatsoever beyond the ordinary jurisdiction commonly accepted among nations as appertaining to all countries, namely, a marine league from low-water mark. Yet it appears further from the same affidavit, what is admitted to be the case by the Imperial Russian Government in a note from the Imperial Russian ministry of foreign affairs to the then envoy extraordinary and minister plenipotentiary of the United States of America, dated June 12 (old style), or June 24 (new style), 1893, a certified copy of which is hereto annexed, marked “Exhibit I,” namely, that the said bark was arrested and seized upon the open sea of Okhotsk Sea upon the said 10th day of September (new style), or 29th day of August (old style), 1892, by an officer of the Imperial Russian navy, in command of an armed vessel of said navy, by force of arms, and by force of arms taken to Vladivostok. It also appears from the said affidavit that the captain duly protested against the arrest and seizure of his vessel, but that in spite of his protests the seizure was made and the crew of the Cape Horn Pigeon was pressed, against their will, into the service of the Imperial Russian Government, and compelled to navigate the vessel of the said officer of the Imperial Russian navy into Vladivostok. And it further appears from said affidavit and from the log book of the said vessel, which is hereto annexed, forming part of the deposition of W. R. Wing, Exhibit V, and marked “Annex 1” of that exhibit, that the said bark was detained by the Imperial Russian authorities until the 1st day of October, 1892. It also appears from the said affidavit that the arresting officer of the Imperial Russian navy set up the claim, in making the arrest, that [Page 14]the Okhotsk Sea was a closed sea. In the note of the Imperial Russian ministry of foreign affairs, dated June 12/24, 1893, above cited and marked “Exhibit I,” no attempt is made to support this claim, nor does it appear that the Russian Government has ever claimed exclusive jurisdiction over that sea.
Upon the arrival of the said bark in the harbor of Vladivostok the captain took the first available opportunity to inform, by telegraph, the legation of the United States of America at St. Petersburg of the seizure of the Cape Horn Pigeon in a telegram, a certified copy of which is hereto annexed, marked “Exhibit J.”
Upon receipt of the said telegram the then Chargé d’Affaires of the said United States addressed a note to the Imperial Russian ministry of foreign affairs, dated September 9/21, 1892, a certified copy of which is hereto annexed, marked “Exhibit K,” and received in reply a note from the said Imperial ministry, dated September 19 (old style), October 1 (new style), 1892, a certified copy of which note is hereto annexed, marked “Exhibit L,” informing the said Chargé d’Affaires that the said bark had been released.
And in point of fact the said bark Cape Horn Pigeon was released, but not until it was too late to continue her whaling voyage for that season, for, as is shown by the affidavits of three experienced whaling captains familiar with the habits of the whales and with the winds in the said Okhotsk Sea, certified copies of which affidavits are hereto annexed, marked respectively “Exhibit M,” “Exhibit N,” and “Exhibit O,” the whaling season closes in the Okhotsk Sea between the 1st and 10th days of October, while the Cape Horn Pigeon was unable to leave Vladivostok before October 1, 1892.
By reason of this seizure by the Imperial Russian Government of the said bark Cape Horn Pigeon, and of the subsequent action of the said Government in forcibly taking the said bark away from her fishing grounds just at the most favorable season of the year, when the whales had just begun to strike in to the said fishing grounds, and in detaining her at Vladivostok, a point far removed from said fishing grounds, until it was impossible for her to get back and resume her lawful calling, not only before the season would have terminated, but in time for her to have proceeded to any other whaling waters to resume her calling and arrive at San Francisco within the limit of time specified in the contract with the crew, namely, in the autumn of 1892, thereby depriving the owners, officers, and crew of said bark of the services of the vessel and her outfit for the remainder of the season, as well as in the consumption of the provisions and stores of said bark by the officers and men of the Russian Government, the pressing of the crew into the service of the said Government, compelling them to bring the Russian vessel to Vladivostok against their will, and by reason of the expenses incurred, not only by the captain, officers, and crew at Vladivostok for their maintenance, but by reason of the necessity of sending many and costly telegraphic messages to distant parts of the world, the consultation of legal counsel, the necessary hire of clerical assistance, of boats, and of carriages, the detention of the crew as prisoners, and the failure to provide for said crew’s needs, and, finally, by reason of the expense of the present proceedings, the owners, officers, and crew of the said bark Cape Horn Pigeon suffered severe damage, for which damage they now seek indemnity.
These damages the said captain of the said bark Cape Horn Pigeon estimated, at the time of the arrest and detention at Vladivostok, at [Page 15]$49,500, and he presented to the competent officer of the Imperial Russian Government at Vladivostok a claim for that amount of damage in two letters dated at Vladivostok the 15–27th day of September, 1892, copies of which letters are hereto annexed, marked, respectively, “Exhibit P” and “Exhibit P°.”
presentation of the claims to the imperial government of russia.
On the 3d day of May (old style), 1893, the then envoy extraordinary and minister plenipotentiary of the United States near to His Imperial Majesty the Emperor of all the Russias, addressed a note to the Imperial Russian ministry of foreign affairs, a duly certified copy of which is hereto annexed, marked “Exhibit Q,” again calling the attention of the Imperial Government to the seizure of the said bark Cape Horn Pigeon and requesting that an investigation be made as to the action of the Imperial Russian officials in this regard, and that the legation of the United States be informed as to the results of said investigation. In reply to the said note the said ministry of foreign affairs addressed to the said legation the note, already cited and marked “Exhibit I,” under date of June 24 (new style), 1893. In this note it is stated that a commission had been appointed to inquire into the seizure of the said bark Cape Horn Pigeon, and that this commission, while practically in accord with the statement made by the captain of the said bark as to the locality of the bark when seized, found that, while the Cape Horn Pigeon had navigated within Russian territorial waters, there was no reason for ordering her confiscation, and admitted that the arrest had been made owing to a misunderstanding, and had ordered the release of the vessel. The said note, after expressing the opinion that the item of damages for whales which could have been taken had not the voyage been interrupted, amounting to $45,000, was excessive, expresses the opinion that $2,500 would be sufficient to indemnify the parties in interest for their losses, thereby admitting that an indemnity for the seizure was due.
On the 2d day of June (old style), 14th day of June (new style), 1894, the then envoy extraordinary and minister plenipotentiary of the United States of America near to His Imperial Majesty the Emperor of all the Russias, acting under instructions from his Government, addressed a note to the Imperial Russian ministry of foreign affairs, a copy of which is hereto annexed marked “Exhibit R,” presenting the claims of the owners, officers, and crew of the said bark Cape Horn Pigeon for indemnity for the arrest of the said bark. No answer being received to the said note, the legation of the United States at St. Petersburg, Russia, continued to press for a reply thereto, but it was not until October 12/24, 1895, that the reply of the said ministry of foreign affairs, a copy of which is hereto annexed marked “Exhibit S,” was received. In this reply the said ministry already referring to its former expression in the note of the said ministry already referred to and marked “Exhibit I,” requests that the imperial Government be furnished vouchers for the expenses incurred by the captain and owners of the said bark Cape Horn Pigeon, which expenditures, amounting to $3,400, had been included in the claims as presented by the said minister plenipotentiary of the United States in the note before cited and marked “Exhibit S.”
As while the Imperial Russian Government recognized the fact that the seizure of the said bark Gape Horn Pigeon was unjustifiable, and [Page 16]that a certain indemnity therefor was due to the owners, officers, and crew thereof, as is shown in the notes of the Imperial ministry of foreign affairs above referred to, but repudiated the principal item of the claim, namely, that for the loss of the services of the said bark, her equipment, and crew during the period of the detention, it did not seem to the claimants expedient to in any way appear to acquiesce in the justice of such repudiation by submitting at that time an account in detail for any minor part of their claim independent of the principal and disputed item thereof. All these items of expense are, however, now submitted in detail in the bill for damages hereto annexed.
On the 27th day of January (8th day of February), 1899, the then Chargé d’Affaires, acting under instructions from his Government, addressed a note to the Imperial Russian ministry of foreign affairs, a copy of which is hereto annexed marked “Exhibit T,” offering to accept, on behalf of these claimants, for the damages suffered by them on account of the seizure of the said bark Cape Horn Pigeon, and in full settlement therefor, the sum of $42,000, by way of compromise, but this offer was made by the Government of the United States with the express statement, distinctly set forth in the said note, that the said offer was made with a view to reaching an early settlement of the case, and that, should the said offer of compromise be refused by the Imperial Russian Government, nothing therein should be construed as in any way to prejudice the rights of the said claimants, nor especially their right to recover the full amount of their claims by arbitration or by negotiation.
In reply the embassy of the United States of America received a note from the Imperial Russian ministry of foreign affairs, dated March 13 (old style), March 25 (new style), 1899, a copy of which is hereto annexed marked “Exhibit U,” in which the Imperial Russian Government rejected the offer of compromise submitted by the Government of the United States and again offered the sum of $2,500 indemnity for the aforesaid seizure of the bark Cape Horn Pigeon.
In addition to the documents above specified, the following are also hereto annexed and submitted in evidence, marked, respectively, as herein indicated:
- Exhibit V.—The sworn deposition of William R.
Wing, of New Bedford, Mass., in the United States of America, to which
- Annex 1.—The log book of the bark Cape Horn Pigeon upon its voyage in 1892.
- Annex 2 and Exhibit 3.—Charts of the North Pacific Ocean.
- Annexes 4, 5, 6, and 7.—Accounts of the bark Cape Horn Pigeon, showing the cost of the vessel and her outfit.
- Annex 8.—Accounts of expenditures paid by J. and W. R. Wing, owing to the seizure of the Cape Horn Pigeon.
- Annex 9.—Copy of an extract from the New Bedford Whaleman’s Shipping List of December 7, 1875.
- Exhibit W.—Official Russian map showing the Okhotsk Sea and a line marking the extreme limit of jurisdiction ever claimed therein by Russia.
- Exhibit X.—Statement of the officers and crew of the Cape Horn Pigeon regarding the arrest of the vessel, dated September 21, 1892, and duly signed and witnessed.
- Exhibit Y.—Declaration of the captain and crew of the Cape Horn Pigeon, dated September 23, 1892, duly signed by the captain and 29 of the officers and crew.
- Exhibit Z.—Copy of a letter, dated Vladivostok, September 27, 1892, from Thomas Scullen, captain of the Cape Horn Pigeon, to Commander Charles V. Gridley, of the United States Navy, commanding the U. S. S. Marion.
- Exhibit AA.—Chart showing the course of the Cape Horn Pigeon during her voyage in the Okhotsk Sea in 1892.
- Exhibit BB.—Copy of a note from the Imperial Russian ministry of foreign affairs to the envoy extraordinary and minister plenipotentiary of the United States of America at St. Petersburg, dated July 31, 1868.
- Exhibit DD.—Document No. 59 of the Senate of the United States of America, Fifty-fifth Congress, second session: Bering Sea Awards.
- Exhibit EE.—A copy of a note of the Imperial Russian ministry of foreign affairs, dated May 8, 1882.
- Exhibit FF.—A copy of a note of the Imperial Russian ministry of foreign affairs, dated June 1, 1882.
treaty obligations of russia and the laws of nations.
The Okhotsk Sea is a great arm of the North Pacific Ocean, from which it is separated by the chain of islands known as the Kuril Islands. Its vast extent precludes the possibility of its effective occupation and control by any single nation. Nor, indeed, has any such occupation ever been attempted, nor has the Imperial Russian Government ever publicly asserted any right to control the navigation of its waters or by any proclamation or other act attempted to prohibit fishing or whaling within its limits beyond ordinary jurisdictional waters. On the contrary, the treaties of 1824 and 1825 with the United States and Great Britain, respectively, as well as the long-continued resort to its waters without molestation of foreign whaling vessels in pursuit of their calling, constitute acts of admission of the absence of any intent to claim a right of prohibition to all men of the free use of its waters beyond the limits of ordinary marine jurisdiction. The affidavits of Ezra B. Lapham, George O. Baker, and B. D. Cleveland, submitted in evidence herewith, show that this sea was a common resort for whalers.
The captain of the Cape Horn Pigeon has stated in his sworn affidavit, Exhibit H, and it is to be observed that his credibility is vouched for by several witnesses of good standing, also under oath, that the commander of the arresting Russian vessel declared at the time the seizure was made that the Okhotsk Sea was a closed sea and that he had orders to seize all vessels found taking whales therein and that the seizure of the bark in question was made on that account.
Were this declaration of the Russian commander, that the Okhotsk Sea is a sea closed to the navigation and the pursuit in its open waters beyond ordinary marine jurisdiction of the animals feræ naturæ frequenting it, supported by the claims of the Imperial Russian Government, it is not easy to see how, in the light of present opinions on the subject of ownership of the high seas, that claim could be maintained conformably to the accepted principles of international law, even aside from the treaties of 1824 and 1825, made by the Imperial Russian Government and the United States and Great Britain, respectively.
The first article of the treaty with the United States, of 1824, reads as follows:
It is agreed that, in any part of the great ocean commonly called the Pacific Ocean or South Sea, the respective citizens or subjects of the high contracting powers shall be neither disturbed nor restrained, either in navigation or in fishing, or in the power of resorting to the coasts, upon points which may not have already been occupied, for the purpose of trading with the natives, saving always the conditions determined by the following articles.
The first article of the treaty between the Imperial Russian Government and the Government of Great Britain reads as follows:
Il est convenu que dans aucune partie du grand océan, appelé communément Océan Pacifique, les sujets respectifs des Hautes Puissances contractantes ne seront ni troublés, ni gênés soit dans la navigation, soit dans l’exploitation de la pêche, soit dans la faculté d’aborder aux côtes sur des points qui ne seraient pas déjà occupés, [Page 18]afin d’y faire le commerce avec les indigènes, sauf toutefois les restrictions et conditions déterminées par les articles qui suivent.
In rendering its decision the Paris tribunal of arbitration with regard to the differences between the Governments of Great Britain and the United States a majority of the abitrators adopted the following decision:
By the ukase of 1821 Russia claimed jurisdiction in the sea known as the Bering Sea to the extent of 100 Italian miles from the coast and islands belonging to her, but in the course of the negotiations which led to the conclusion of the treaties of 1824 with the United States, and of 1825 with Great Britain, Russia admitted that her jurisdiction in the said sea should be restricted to the reach of a cannon shot from the shore, and it appears that from that time up to the cession of Alaska to the United States Russia never asserted in fact or exercised any exclusive rights in the seal fisheries therein beyond the ordinary limit of territorial waters.
In both of these treaties the expression employed is “in any part of the great ocean commonly called the Pacific Ocean.” What did the decision of the tribunal mean in this regard? The Bering Sea was and is as much separated from the main ocean as was and is the Okhotsk Sea, and was and is equally distinguished therefrom by name. Both are, however, branches of the great ocean, and the decision which includes the waters of the one as part of that great body of water must necessarily include the other.
A claim of exclusive jurisdiction over gulfs of any such size and extent as the Okhotsk Sea is not in accord with the consensus of opinion of the accepted authorities on international law to-day. A very eminent authority upon the subject has expressed the following view:
In our day legislation and the opinions of jurists are in accord in recognizing the liberty of the ocean, and no people could make pretension of control thereof. Those portions of the sea which are connected with the ocean are admitted to be free and accessible to all the world, even when they are surrounded by the possessions of a single State. Certain restrictions of this principle admitted in practice can only be justified by the necessity of safeguarding the security of the bordering country.
Consequently, from the present point of view, the sovereignty of a State over the seas which bound it can not extend to a distance which would deprive them of their character of open seas. Thus Sweden was in the wrong in claiming sole possession of the Baltic. This sea, communicating with the ocean as it does, ought always to remain open to all States. * * *
The Sea of Kara can not be considered as belonging to Russia. With regard to its geographical position a mere glance at the map shows that the Sea of Kara communicates directly with the Arctic Ocean and that it is entirely open to navigation. If it is alleged that it is covered with ice during nine months of the year and that the ice forms a continuation of Russian territory, it may be objected to that reasoning that ice has never yet been likened to terra firma. Furthermore, the free use of that sea might be necessary to other States for navigation during the three months when it is not frozen. From the judicial point of view it is an open sea. (F. de Martens, Traite de Droit International. Translated into French by A. Leo, Vol. I, pp. 494–496.)
The opinion of the distinguished counsel for the Imperial Russian ministry of foreign affairs regarding the Kara Sea applies with equal or even greater force to the Okhotsk Sea, which is connected with an ocean much more frequented than is the Arctic Ocean. Its waters are less closed to navigation by ice, and its area is vastly greater than that of the Kara Sea.
The same high authority states further on in his valuable treatise (Vol. I, sec. 97, p. 497):
The ocean is free for the navigation and communication of all peoples. No nation can be prevented from the enjoyment of fishing or other peaceful enterprises on the high seas. If all enjoy the same rights thereon, it follows that no State can there impose its laws upon the others, pass judgments on foreign navigators or sailors, nor arrest or search the ships of another country.
Vattel says (Book I, Chap. XXIII, secs. 289, 291):
All we have said of the parts of the sea near the coast may be said more particularly and with much greater reason of the roads, bays, and straits as still more capable of being occupied and of greater importance to the safety of the country. But I speak of the bays and straits of small extent, and not of those great parts of the sea to which these names are sometimes given, as Hudson Bay and the Straits of Magellan, over which the empire can not extend, and still less a right of property.
But if the jurisdiction and right of property of the bordering nation can not extend over Hudson Bay, which is surrounded on every side by British possessions, not only as regards the mainland, but as regards the chain of islands stretching across its wide mouth, how much more is this principle applicable to the Okhotsk Sea, across the wide mouth of which extends the chain of the Kurile Islands, belonging to the Empire of Japan?
The American schooner Washington, while engaged in fishing in the Bay of Fundy, 10 miles distant from the shore, was seized by one of Her Britannic Majesty’s cruisers and taken to Yarmouth, Nova Scotia, and condemned, on the ground that she was engaged in fishing in British waters in violation of the provisions of the convention relative to the fisheries, entered into between the United States and Great Britain on October 20, 1818. A claim for damages was made before the commission of arbitration under the claims convention between the United States and Great Britain of February 8, 1853, on the ground that the seizure was in violation of the provisions of the convention of 1818 and of the law of nations. Hornby, British commissioner, maintained that the seizure was justified, both on the ground that the Bay of Fundy was an indention of the sea over which Great Britain might by virtue of the law of nations claim jurisdiction, and also on the ground that, by a fair construction of the convention of 1818, the Bay of Fundy was one of the “bays” in which, by that convention, the United States had renounced the right to fish. Upham, the American commissioner, denied both these contentions, citing Vattel I, chapter 20, sections 282, 283; Grotius II, chapter 2, section 3; I Kent’s Commentaries, 462; Sabine’s Report on the Fisheries, 282, 294.
In rendering his decision in favor of the claimants the umpire said:
The Bay of Fundy is from 65 to 75 miles wide and from 130 to 140 miles long. It has several bays on its coasts. Thus the word bay as applied to this great body of water has the same meaning as that applied to the Bay of Biscay, the Bay of Bengal, over which no nation can have the right to assume sovereignty.
Indeed, the Russian Government itself had admitted, by the issue of the notice to whalers and sealers, which was copied into the New Bedford Whaleman’s Shipping List (Exhibit 9 of Exhibit V), that her jurisdiction in the Okhotsk Sea did not extend beyond ordinary jurisdictional waters. And the same admission is made in the note of the Imperial Ministry of Foreign Affairs to the Envoy Extraordinary and Minister Plenipotentiary of the United States at St Petersburg, dated July 31, 1868, and submitted in evidence marked “Exhibit BB,” as well as in the official publication issued by the Imperial Russian Ministry of Marine for the year 1875, also submitted in the evidence and marked “Exhibit CC,” upon page 91, a sworn translation of the paragraph in question being attached to the exhibit.
In any case, however, the Cape Horn Pigeon was quite outside of any claimed Russian jurisdiction when the seizure was made. The map [Page 20]of the Okhotsk Sea, published by the Russian Government, submitted in the evidence for the complainants, marked “Exhibit W,” shows a line of demarcation which, as it forms a continuation of a line which it was formerly claimed marked the partition of American and Russian jurisdiction in the Bering Sea—an extent of jurisdiction which the Paris tribunal of arbitration forever disposed of—it doubtless represents some former pretension to jurisdiction, and clearly is the extreme limit to which jurisdiction could be claimed under any theory. Now, the point at which the Cape Horn Pigeon was seized was outside of the waters on the Russian side of this line. Moreover, the plotting of the course of the Cape Horn Pigeon on the chart, according to the entries in the log book, show that after leaving Vladivostok she never again entered Russian waters until she was brought there after the arrest, contrary to the assertion of the Russian commission of inquiry.
But, in point of fact, the Imperial Government of Russia has not attempted to support the pretention that the seizure of the Cape Horn Pigeon was justifiable on the ground that that vessel had not the right to fish for whales in the open sea of the Okhotsk Sea. On the contrary, it appears from the note of the Imperial Ministry of Foreign Affairs to the Minister of the United States to Russia, dated June 12/24, 1893, submitted in the evidence and marked “Exhibit I,” that the Imperial Government disclaimed any such pretention to exclusive control, and, while admitting that the seizure was not justified by the fact, puts the ground for such seizure upon certain suspicions entertained by the Russian commander regarding the Cape Horn Pigeon and her action.
But whatever may have been the suspicions of the commander of the Russian vessel, in acting upon them and seizing the Cape Horn Pigeon, he assumed for his Government full responsibility for all damage directly resulting therefrom, unless some wrongful act on the part of her occupants cognizable by the Russian Government should be established.
M. de Martens says (Traité de Droit International, Tome II, § 56, 3°, p. 342):
No government has the right of search of foreign ships nor in general of their arrest on the high seas. The right, however, of arresting a vessel suspected of piracy is generally admitted. It is a corollary of this principle that in its application it is essential to use the greatest circumspection, since a vessel unjustly arrested is entited to damages.
The Cape Horn Pigeon was at the time of her arrest, according to the statement of the Imperial Russian Government itself, in the note of the Ministry of Foreign Affairs of June 12 (24), 1893, above referred to (Exhibit I), in latitude 46° 31′, longitude 146° 30’ east, a point 125 miles from the nearest Russian land, namely the island of Sagalin, and 84 miles from the Japanese island of Yeratop. She was therefore upon the high seas entirely out of Russian jurisdiction and engaged in her legitimate calling of whaling. Her captain protested against her seizure and warned the commanding officer of the Russian vessel that he would have to pay indemnity for the interruption of his voyage, and the Russian officer replied that if he was wrong in making the seizure his Government would indemnify the losers.
The note of the Russian Ministry of Foreign Affairs just referred to ssates that the Russian commission of inquiry into the matter of the seizure of the Cape Horn Pigeon found that that vessel had navigated within Russian waters, but no evidence has been offered to show upon [Page 21]what ground the commission had arrived at this finding. In stating this the commission found further that there was no ground for the confiscation of the vessel.
The right of innocent passage of fishing and merchant ships in marginal territorial waters is too well established a principle of international law to permit that to be set up as a claim of any right to interrupt the voyage and employment of this vessel.
For more than two hundred and fifty years no European territorial marine waters which could be used as a thoroughfare, or into which vessels could accidentally stray or be driven, have been closed to commercial navigation; and during the present century no such waters have been closed in any part of the civilized world. The right must, therefore, be considered to be established in the most complete manner. (W. E. Hall, A Treatise on International Law, 1895, Part II, Chap. II, sec. 42, p. 165.)
It follows therefore that, both by right of treaty and by every principle of international law, as well as by the admission of the Russian Government, the Cape Horn Pigeon was in the pursuit of a calling in which she could not be lawfully interfered with when she was seized by the agents of the Russian Government and taken to Vladivostok, thereby breaking up her voyage and causing great damage upon her owners, officers, and crew in consequence. Her seizure was a violation of the treaty rights existing between her country and Russia as well as of the rights of man.
And in point of fact the Russian Government has acknowledged the illegitimate character of the seizure not only in the statement made in the ministerial note of June 12 (24), 1893, as follows:
Nevertheless, the commission of investigation to which this case was referred, while stating also that the Cape Horn Pigeon had navigated within Russian territorial waters, found no cause to order her confiscation. It was then admitted that the arrest of this vessel had been made as the result of a misunderstanding, and the vessel was returned to her owners without delay.
but also in the offer of an indemnity, wholly inadequate though it was, for the seizure of the bark.
the measure of damages.
The principal item of damage claimed by the owners, officers, and crew of the Cape Horn Pigeon is that amounting to $45,000 for the loss of the service of the vessel. The captain of the bark formed his estimate of the amount of the damage sustained in this particular by striking an average of the whales taken by him during his several previous voyages in the same waters and deducting from the value of this average the value of the whales already taken by him during the voyage in question. This was an eminently fair and businesslike way of arriving at an estimate of the loss sustained by the breaking up of the voyage. The claim is one for absolutely direct damages arising out of the seizure, whereby a continuance of the whaling voyage was rendered impossible owing to the lateness of the season, the impossibility of getting back to the grounds before its termination, and the approaching termination of the engagement with the crew.
In the case of the United States vessel Betsey, unlawfully detained by British authorities, the majority of the board of arbitration decided in favor of allowing to the claimant, not only the value of the vessel and her cargo, but also the profits which would have been derived from the sale of her cargo had she been allowed to continue her voyage. The claims of the owners of the Neptune were similarly decided in 1795.[Page 22]
In the case of the American brig Williams, seized by the Mexican Government in 1829, the umpire awarded passage money which would have been, received if the brig had been permitted to continue her voyage to her immediate destination, where she expected to receive a cargo of passengers.
The damages claimed for the loss of catch of a whaling ship in no sense constitute claims for indirect damages or for speculative profits. They represent the direct loss sustained by the owners, officers, and crew of the Cape Horn Pigeon owing to her unlawful seizure and detention at Vladivostok, whereby she was taken away from her lawful calling just at the height of the whaling season, and kept away from its pursuit until it was too late to resume it during that year. They are such damages as are usually allowed in analogous cases for losses which the owners, officers, and crew suffered by the seizure and detention, as measured by the value of the services of the vessel, her outfit and crew, during the time of the detention, and are of the nature of the demurrage usually allowed for the detention of merchant or trading vessels. But the basis of estimate of demurrage upon a trading Vessel would not be applicable as the measure of damage suffered by a whaling ship taken from the pursuit of her calling in the height of the brief season during which whales are to be taken in northern latitudes.
The damage sustained by a freighting ship, owing to her detention, may be compensated by the payment of such a sum as may be estimated upon her earning capacity in carrying freight during the period of the detention, on the theory that she can always resume her carrying trade, which has only suffered an interruption not further affecting her earning capacity than as regards the mere loss of time. But in the case of a whaling ship the entire earnings of the vessel during an entire season depend upon her taking advantage of her opportunity when it arrives, and the loss of her service at that moment may deprive her owners of any return upon their investment during the whole year, and her crew, who are paid by lay, of all remuneration for their labor for the voyage and season. Thus the Cape Horn Pigeon was gone for very nearly a whole year and brought back an insufficient supply of oil and bone to defray expenses, let alone make a profit, while her crew not only did not make their wages, but remain in debt to the ship for advances made them.
The rule of damages is well settled that in a fishing voyage the loss of the service of a fishing vessel is to be compensated upon the value of the vessel’s use during the time of her detention, and this depends upon the character and employment of the vessel. The objection that prospective profits are not admissible as a substantive ground of damage does not apply or exclude the use of the average catch of a fishing vessel as evidence of the value of that vessel’s use, but is the best evidence, exactly as it is the evidence used in other cases to determine the injury suffered by a party from the deprivation of the use of his property. The rule is particularly applicable to cases of whale ships, because the crew, being paid by lay and having no ownership of the catch, are to be compensated for their damages by their lay in the damages awarded instead of being allowed to make separate independent claims for themselves.
There is abundant evidence of the application of this rule in estimating the measure of damage caused to a whaling ship by interference with the pursuit of her calling, and it has always been justly considered that the crew, being generally paid by lay or proportion of [Page 23]the proceeds of the voyage, which involves special hardships and dangers, can only be fairly compensated upon the basis of the estimated value to them of the services of their ship and its equipment during the time of detention. The owners also equip their vessels, at great expense, for long and perilous voyages, in the expectation of commensurate returns in which they must divide the proceeds with the crew, and their loss can only be estimated upon the basis of the use of their ship and her crew and equipment for the purpose for which she was sent out and not upon a percentage upon the capital invested or the value in money of the ship if put to other uses. The only criterion applicable, therefore, is the average catch.
In the case of the Costa Rica Packet the distinguished arbitrator, himself a Russian subject and the official and permanent counsel of the Imperial Russian Ministry of Foreign Affairs, in rendering his decision said in the preamble to his award:
Whereas the unjustifiable detention of Captain Carpenter caused him to miss the best part of the whaling season;
Whereas, on the other hand, Mr. Carpenter, on being set free, was in a position to have returned on board the ship Costa Rica Packet in January, 1892, at the latest; and
Whereas no conclusive proof has been produced by him to show that he was obliged to leave his ship until April, 1892, in the port of Ternata, without a master, or, still less, to sell her at a reduced price;
Whereas the owners or the captain of the ship being under an obligation, as a precaution against the occurrence of some accident to the captain, to make provision for his being replaced, the mate of the Costa Rica Packet ought to have seen fit to take command and to carry on the whaling industry:
And whereas, thus, the losses sustained by the proprietors of the vessel Costa Rica Packet, the officers and the crew, in consequence of this precautionary detention.
The principle of admitting the loss of catch in estimating the measure of damage to a whaling vessel by reason of her unjustifiable detention is thus clearly admitted by this high authority on international law.
In the case of the Potomac, before the Supreme Court of the United States, Mr. Justice Gray, in delivering the opinion of the court, said:
Both the questions of law presented by the record relate to the amount of the damages that the libellant is entitled to recover.
One question is as to the sum to be allowed for the detention of his vessel while repairing the injuries suffered by the collision. The rules of law governing this question are well settled, and the only difficulty is in applying them to the peculiar facts of the case.
In order to make full compensation and indemnity for what has been lost by the collision, restitutio in integrum, the owners of the injured vessel are entitled to recover for the loss of her use, while laid up for repairs. When there is a market price for such use the price is the test of the sum to be recovered. When there is no market price, evidence of the profits that she would have earned, if not disabled, is competent. (United States Reports, vol. 105, p. 630–632.)
In the case of Williamson v. Barrett, before the Supreme Court of the United States, Mr. Justice Nelson, in delivering the opinion of the court, said:
As to the question of damages, the jury were instructed, if they found for the plaintiffs, to give damages that would remunerate them for the loss necessarily incurred in raising the boat and repairing her, and also for the use of the boat during the time necessary to make the repairs and fit her for business.
By the use of the boat, we understand what she would produce to the plaintiffs by the hiring or chartering of her to run upon the river in the business in which she had been usually engaged.
The general rule in regulating damages in cases of collision is to allow the injured party an indemnity to the extent of the loss sustained. This rule is obvious enough, but there is a good deal of difficulty in stating the grounds upon which to arrive, in all cases, at the proper measure of that indemnity.[Page 24]
The expenses of raising the boat and of repairs may of course be readily ascertained, and in respect to repairs no deduction is to be made, as in insurance cases, for the new materials in place of the old. The difficulty lies in estimating the damage sustained by the loss of service of the vessel while she is undergoing the repairs.
That an allowance short of some compensation for this loss would fail to be an indemnity for the injury is apparent. This question was directly before the court of admiralty in England in the case of the Gazelle, decided by Dr. Lushington in 1844, 2 W. Robinson, 279. That was a case of collision, and in deciding it the court observed: “That the party who has suffered the injury is clearly entitled to an adequate compensation for any loss he may sustain for the detention of the vessel during the period which is necessary for the completion of the repairs and furnishing the new articles.”
In fixing the amount of the damages to be paid for the detention, the court allowed the gross freight, deducting so much as would in ordinary cases be disbursed on account of the ship’s expenses in earning it.
This rule may afford a very fair indemnity in cases where the repairs are completed within the period usually occupied in the voyage in which the freight is to be earned. But if a longer period is required it obviously falls short of an adequate allowance. It looks to the capacity of the vessel to earn freight, for the benefit of the owner, and consequent loss while deprived of her service. In other words, to the amount she would earn him on hire. (13 Howard, 101.)
(See also the following cases: The Baltimore, 8 Wallace, 377–385; Cayuga, 14 Wallace, 270; Freddie L. Porter, 5 Federal Reports, 1, 822; Vermont, 8 Federal Reports, 170; Brown v. Hicks, 24 Federal Reports, 811; Parsons v. Terry, 1 Lowell, 60; the Notting Hill, 9 Pro. Div., 105–113; the Parana, 2 Pro. Div., 118; the Mary Steele, 2 Lowell, 370–374; the Risoluto, 8 Pro. Div., 109; the Clarence, 3 William Rob., 283–286; the Gleaner, 38 L. T. N. S., 650; the Marsden Collision, 2d edition, p. 115.)
This rule was applied in the cases of the whaling ships James Maury, General Pike, Mile, and the bark Nile, captured by the Confederate cruiser Shenandoah and compelled to abandon their whaling voyages, in the decision of the Court of Commissioners of Alabama Claims.
(See also the Walter Phare, 1 Lowell, 437; Stormless, 1 Lowell, 153; Mayflower, 1 Brown, Adm., 376; Transit, 4 Ben., 138; Swift v. Brownell, 1 Homes, 467; the Antelope, 1 Lowell, 130; Bourne v. Smith, 1 Lowell, 547; Frates v. Howland, 2 Lowell, 36; Hussey v. Fields, 1 Sprague, 364–396; Knight v. Parsons, 1 Sprague, 279; 290 Barrels of Oil, 1 Sprague, 279; Backster v. Rodman, 3 Pickering (Mass.), 435, 438, 439; Fletcher v. Taylor, 17 C. B., 21; Corey v. Thames Iron Works, L. R., 3 Q. B., 181; Ex parte Cambrian Steam Packet Co., L. R., 6 eq., 396; Cayuga, 2nd Ben., 125; Jolly v. Terra Haute, 6 McLane, 237; Williamson v. Barrett, 13 Howard, 101.)
Other cases of the application of the rule before international tribunals are those of—
The Hope On, detained by the Chilean Government in 1883 at Talcahuano, in which the commission of arbitration in its award said:
On the other hand, the majority of the commission, Mr. Commissioner Gana dissenting, are of the opinion that the claimant is entitled to recover damages on account of the arrest and detention of the vessel. The principle is well established in cases like the present that the loss of the use of the vessel is the proper measure of damages, and the loss of such use is the loss of her probable catch during her enforced absence from the fishing grounds. (G. B. Borden v. Chile.)
In the case of the Col. Lloyd Aspinwall, seized by the agents of the Spanish Government, the umpire, in his award in favor of the claimants, allowed for one hundred and fourteen days’ interruption of trade.
This subject has recently undergone the most thorough and careful examination by the commission appointed to adjust the claims of the [Page 25]Canadian sealers against the Government of the United States, commonly known as the Bering Sea claims. It is scarcely necessary to do more than to refer to the arguments submitted before this tribunal on behalf of the English Government for the most complete and exhaustive review of all the decisions upon the subject.
The English Government contended for the rule as claimed in the present case. An examination of the awards made in certain cases before the Bering Sea Commission leaves no room for doubt that in these cases at least the Commission adopted the rule as contended for by the English Government, and as herein stated. For instance, in case No. 4—the Favorite—the award was $3,202. The claim was $6,202, of which $5,600 was for the value of the estimated earnings from catch. The interest of Alexander McLean, one-half, was thrown out by the Commission, reducing this claim to $2,800. The item of $200, time and expense of owners, was also thrown out as being a duplicate, and thus the claim of $6,202 was reduced to $3,202, for which the award was made, and which included $2,800 belonging to the owner, not excluded for the estimated earnings of the vessel based upon an estimated catch. The same is true of the case of the Alfred Adams, where an award of $10,124 was made, one-half ownership being thrown out, and it appears that at least $8,428 must have been estimated for catch. The same is also true of No. 13, the Juniata; No. 14, Pathfinder; No. 15, The Black Diamond; No. 16, The Lily and others.
If there were any doubt of this, it is relieved by such cases as No. 14, the Triumph, where the sole claim was for loss of catch. In the case of the Triumph, No. 14, not No. 11 for the same vessel, the award was $15,500. The original claim was for $19,624, of which $250 was for legal and other expenses, $19,424 being for balance of estimated catch of 2,500 skins, at $8 each. It was admitted that the Triumph had transshipped her part of her season’s catch before entering Bering Sea on or about July 4. A considerable part of the season had already therefore elapsed, and it was reasonable to suppose that she had taken a fifth part of her probable catch before entering Bering Sea. Thus 2,000 skins would remain to be taken to make up the season’s work of 2,500 skins. She had on board 72 skins when taken, leaving 1,928 skins to be taken to make up the 2,000. One thousand nine hundred and twenty-eight skins at $8 would amount to $15,424, and the award was for $15,450, as has been said. There is no possible escape from the demonstration which this case affords, that this was the rule adapted by the Bering Sea Commission, and a careful examination of each case shows that the rule was universally applied.
It is believed that the principle that an agent of a government may not rightfully, upon the mere suspicion of an act of trespass, enter upon a peaceably engaged ship, sailing under the flag of a friendly nation, and by force of arms enroll the citizens or subjects of that friendly nation into the public service of that government against their wills and oblige them to navigate one of that government’s national ships will not be disputed. Hall, citing Bluntcheli, says (International Law, Fourth Edition, Part II, Chap. IV, p. 217):
It is not permissible to enroll aliens, except with their own consent, in a force intended to be used for ordinary national or political objects.
Such an act is an unwarrantable aggression not only upon the flag [Page 26]of the friendly nation but of usurpation of authority over the citizens of another nationality wholly at variance with the rights of the individuals, and which no government would attempt to practice upon terra firma.
The act of compulsion over the crew of the Cape Horn Pigeon in taking them from their own ship and by force of arms obliging them, under protest, to navigate a Russian vessel into port, must be considered as, apart from any right or want of it to seize the vessel, a grave infraction of their natural rights. As American citizens no official of the Russian Government could by right compel them against their wills to enter into the service, even temporarily, of the Russian Government. And in doing so the commander of the Russian cruiser laid his Government open to a just claim for damages in excess of the mere value of the labor performed. The fact that these seamen, unprovided with any competent counsel to advise them of their rights, agreed at Vladivostok to accept the mere value of the labor performed in acquittance of any claim for this arbitrary act of impressment should not be permitted to prejudice their claims not only for the services performed but for indemnity for the injury to their national pride and for the violation of their personal liberty.
Futhermore, these men were landed on the beach at Vladivostok and left unprovided for either as regards food or shelter, nor was any suitable provision offered them, so that they were compelled to take refuge in the squalid quarters of a Chinaman significantly called “Cheap John.” It is claimed by the Russian Government that quarters were offered them in the jail. Such a lodgment, if it was in fact offered them, can hardly be deemed as suitable or adequate for self-respecting and innocent citizens of a friendly nation, innocent of any wrong, who have been brought to a distant port and compelled to await in enforced idleness permission to resume their occupation. It is confidently believed that full indemnity will be allowed these men for both these wrongs in the final award.
In cases of this nature the principle of allowing a fair rate of interest upon the award is so universally admitted as to preclude the necessity of argument upon the subject. In his award in favor of the John S. Bryan for the payment of interest upon the amount of indemnity due from the Brazilian Government the arbitrator stated: “The principle on which this sum is awarded is one which has long been settled.”
Among the many cases in which tribunals of arbitration have allowed interest in their awards may be cited the following:
The commission under the treaty of 1794, between the United States and Great Britain, allowed interest on all claims.
In the Chinese indemnity arbitration the commission allowed interest at the rate of 12 per cent.
The decisions of the American and British claims commission under the treaty of May 8, 1871, included interest in their awards with a very few exceptions. The Geneva tribunal of arbitration upon the Alabama claims, the dissenting opinion of Sir Alexander Cockburn shows that interest at the rate of 6 per cent was allowed in the award.
So also in the arbitration of the claims of the United States against Mexico and against Brazil.
In the case of the Costa Rica Packet the distinguished arbitrator allowed the claimants interest at the rate of 5 per cent.[Page 27]
In the recent arbitration (1897) between the United States of America and Great Britain, for claims growing out of the Bering Sea seizures, interest was universally allowed.
Estimate of damages.
|Item 1, expenses of owners due to seizure.||$3,040|
|Item 2, services of crew in navigating Russian schooner||1,200|
|Item 3, provisions consumed.||200|
|Item 4, board of crew||210|
|Item 5, expenses of Captain Scullen||50|
|Item 6, loss of catch||45,000|
|Item 7, indemnity for impressment, at $1,000 each man.||31,000|
|Item 8, interest for nine years, at 6 per cent.||43,578|
Statement of claim.
I. Damages for loss of use of the vessel being average catch of the vessel, as follows:
|8 whales, averaging 1,300 pounds bone, at $5||$52,000|
|8 whales, averaging 100 barrels oil, at $13.||10,400|
|From which Captain Scullen deducted||1,800|
|And credit product of 2 whales which he had taken—2 whales averaging 1,300 pounds bone, at $5||$13,000|
|2 whales averaging 100 barrels oil, at $13||2,600|
|Claim for net loss.||45,000|
general statement of the claims.
The number of whales already taken was the basis of Captain Scullun’s estimate as his average catch. On this season alone in the conditions in which the vessel was at the time of the seizure he could fairly have claimed a much larger number, but he knew that in four seasons he had taken 28 whales, making for those seasons an average of 7, and with this season’s catch he could fairly raise the average to 8, making the deduction which he did of $1,800. The captains whose affidavits are presented put the average catch from 6 to 10 whales, and their evidence shows that Captain Scullun’s estimate of 8 whales is reasonable.
The average amount of bone to a whale is based on the two whales which Captain Scullun had taken and for which credit is given. The evidence of the other captains shows that in their experience the whales which they had taken averaged a little less bone, between 1,100 and 1,200 pounds to a whale, but it is to be remembered that Captain Scullun was there on the ground and saw the whales, and the others are speaking of previous years. Captain Scullun’s deduction brings it down to about 1,250 pounds, which, under all the circumstances, renders the claim well supported by the proof.
The average of 100 barrels of oil to a whale is proved by all the witnesses and is a well known average for this class of whales. The price of the bone is shown by the testimony of Mr. Wing and Mr. Philips and the prices current in the market. Bone had ruled at $5 [Page 28]a pound during August. In September the price was affected by the catch and fell to $4.25 by the 1st of October. This was the October price and was maintained into November; but by the 1st of December the price further declined to $4. The seizure was on the 10th of September, and the claimants are entitled to the August price, which, so far as appears, rules until that date, for the testimony shows that the catch would have been sold “to arrive” at the market rate. The price of oil is entirely established by the testimony at $13 a barrel.
The claim is submitted, therefore, upon this item, as well established by the proof, at $45,000.
II. Indemnity for impressment of crew of American citizens into the naval service of Russia.
The claim is $1,000 per man for 31 men, $31,000.
This claim was not included in the claim presented by Captain Scullun. He was only a whaling master and not a lawyer versed in the rules of international law. His affidavit shows that he felt to the full the indignity which his flag had suffered and the outrage which had been perpetrated on himself and his crew. He shows in his testimony his just indignation at the invasion of his and their rights and the cruel treatment which they received not only at the time of the seizure, but from the abandonment at Vladivostok. They were told that they were to be provided for at the station house like common criminals, but even that refuge from hunger and exposure was denied them, and Captain Scullun had himself to provide quarters for them in a storehouse, and for days they were put off with one excuse and another until they were finally sent back to their own ship without even an apology, and there rested again safely under the flag of their country. The grounds of the claim, as based upon the well-known principles of international law, are set forth in the memorandum, and its allowance is asked in the name of the United States. There were 34, all told, on the Cape Horn Pigeon, and all but Captain Scullun, his steward, and boy (3) were put on board the schooner, making 31 officers and men. The rate per man has been fixed at $1,000 in the claim. It is not a subject of argument, and must be left to the justice of the arbitrator. It is not to be measured by the physical injury or even by the mental suffering of the men, but by what one great, rich, and powerful national should pay to another for an outrage which invaded not only the rights, but the self-respect of the sufferers. It is to be remembered that this was not the act of the respondent nation, but only that of its subjects, for which, however, international law holds it responsible. In such a case a nation, instead of resisting payment, should be eager to make full restitution.
III. Services of the crew in navigating the Russian schooner.
This was enforced labor, which was beneficial to the respondent nation, as it enabled them to bring both vessels to Vladivostok. The claim is at the rate of $10 a day for the officers and $5 a day for the men, thus:
|Officers, 9, at $10 a day for six days.||$540|
|Men, 22, at $5 a day for six days.||660|
While the rate per day is more than such men would ordinarily earn, it is not excessive under the circumstances. It may be fairly viewed as analagous to salvage.[Page 29]
IV. The other items are these:
Provisions on the Cape Horn Pigeon consumed by the 2 Russian officers and 12 Russian men on the voyage to Vladivostok, $200.
The voyage lasted nine days, as Captain Scullun testifies that the schooner arrived three days before the ship.
Board of crew at Vladivostok, $210. This covered the support of 9 officers and 22 men for fourteen days, $50. At the time Captain Scullen made his claim at Vladivostok the last two sums had to be estimated. The exact figures are found in Mr. Wing’s testimony, the first being a part of the ($268.46 plus $17.04) $285.50 paid Cheap Jack, and the latter a part of Captain Scullun’s board bill of $42 and carriage and boat hire of $30.
V. Amount claimed for general expenses, $3,040.
Mr. Wing has annexed to his deposition a statement of his expense account due to the seizure, amounting to $1,519.47, from which should be deducted the $210 plus $50=$260, claimed in paragraph IV, and leaving $1,259.47 already expended, in addition to which a much larger sum than the balance of $1,780.53 will be needed to defray his expenses in the proof of this claim. As the Russian Government has admitted its liability from the beginning, and yet has never offered to pay even an approximately fair compensation for the claim covering that of the owners, officers, and crew, both private and international law require that an allowance should be made to cover the claimant’s expenses, in order that he may have “restitutio in integrum.”
As shown in the memorandum, interest is to be allowed at the rate of 6 per cent per annum from the date of seizure. The decision in the Bering Sea cases, cited in the memorandum, exhausts the law upon this subject and obviates the need of argument. The commission say in their award—
The rate of interest awarded by us is 6 per cent per annum, being the statutory rate at Victoria, British Columbia, during the period could, but being less than the current rate thereat.
And upon each award the interest was figured as a separate item.
Thus, as to the claim of the vessel Dolphin, it is adjudged and determined that the United States of America are liable to Great Britain in respect thereof, and we assess and award the amount of compensation to be paid on account thereof to Great Britain on behalf of the owners, master, officers, and crew of the vessel, as follows, that is to say, $31,484 with interest from September 10, 1887, until this day, amounting to the sum of $19,399.38, and making a total of principal and interest of the sum of $50,883.38.
Of the gross award of $473,151.26 paid by the United States, $172,962.35 was for interest.
Summary of claim.
|Item I, as stated||$45,000|
|Item II, as stated||31,000|
|Item III, as stated||1,200|
|Item IV, as stated||460|
|Item V, as stated||3,040|
Together with interest thereon from September 10, 1892, to the date of the award at the rate of 6 per cent per annum.[Page 30]