Case No. 3: The “C. H. White.”[Page ] [Page 211]
CASE No. 3.
The “C. H. White.”
statement of the case.
The C. H. White was an American schooner, duly registered in accordance with the laws of the United States of America at the port of San Francisco, in the State of California, and was owned and officered by citizens of the United States.
The ownership of the said schooner was, on the 15th day of July, A. D. 1892, vested in the Eagle Fishing Company, a corporation duly organized and existing under and by virtue of the laws of the State of California of the United States of America.
The names and residences of the stockholders, officers, and directors of the said Eagle Fishing Company were on the said 15th day of July, 1892, as follows, to wit: Johan H. C. Prien, San Francisco, president; Charles W. Preis, San Francisco, vice-president; Charles A. Wagner, San Francisco, secretary; Louis Schmidt, San Francisco, director; Lawrence M. Furman, San Francisco, master of vessel.
The above-named stockholders, on the said 15th day of July, 1892, owned all of the capital stock of the said Eagle Fishing Company, and each of them was on the said 15th day of July, and still is, a citizen of the United States of America.
The said schooner C. H. White sailed from San Francisco, Cal., in the United States of America, on the 7th day of May, A. D. 1892, with her clearance and ship’s papers in proper and lawful form, with a full complement of officers and men, bound upon a fishing and hunting cruise in the North Pacific Ocean, or elsewhere, as the master might direct, with Lawrence M. Furman, one of the stockholders and directors of the said Eagle Fishing Company, as master; Andrew Ronning, mate; Neils Wolfgang, hunter; and a crew of 10 white men and 4 Indians, all of whom, with the exception of 1 white man, Julius Furman, and the 4 Indians, were citizens of the United States of America. And the said schooner C. H. White was at the time of her setting sail from San Francisco, and up to the time of her seizure by the Russian Government, in all respects seaworthy and fit for the voyage which it was intended she should take as herein mentioned, well and sufficiently manned, victualed, furnished, and equipped with all things necessary for a vessel in the merchant service, and particularly for the voyage she was about to undertake.
And the said Lawrence M. Furman, one of the stockholders and directors of the said Eagle Fishing Company, as aforesaid, was the duly qualified and acting master of the said vessel during the said voyage; and the said Furman was at the time when the claims herein set forth had their origin a citizen of the United States of America.
In support of these allegations the following documents are hereto [Page 212]annexed and submitted in evidence, marked, respectively, as herein stated:
- Exhibit A.—A duly certified copy of the certificate of incorporation of the Eagle Fishing Company.
- Exhibit B.—A duly authenticated copy of the clearance papers of the said vessel from the port of San Francisco.
- Exhibit C.—A duly authenticated copy of the certificate of the collector of the port of San Francisco, showing the ownership of the said C. H. White.
- Exhibit D.—A duly authenticated copy of the outward manifest of the said vessel.
- Exhibit E.—A duly authenticated copy of the certificate of naturalization of the said Neils Wolfgang.
- Exhibit F.—A duly authenticated copy of the certificate of naturalization of Lawrence M. Furman.
Proceeding upon their voyage on board the good schooner C. H. White, the master and crew of the said vessel caught and killed upon the high seas, namely, more than 30 miles to the southward of the Aleutian Islands, in the North Pacific Ocean, 8 barrels of mackerel, 1 ton of codfish, and 20 seals.
On the 12th day of July, A. D. 1892, the said schooner, C. H. White, was about 40 miles to the southward of Agattou Island, one of the Aleutian Islands, the crew being engaged in fishing, and on or about that day the master of the said vessel set sail for the Kurile Islands, off the coast of Japan, intending to fish there. The master of the said vessel, finding that his chronometer was out, and wishing to correct the error, deviated from his course toward the Kurile Islands, for the purpose of sighting either Copper Island or Behring Island, in order to correct his chronometer.
On the 15th day of July, 1892, the said C. H. White arrived at latitude 54° 18’ north, longitude 167° 19’ east, by correct observation, and no person upon the said vessel had either fished or hunted for or killed any seals in said place, or within 50 miles thereof, or in Russian waters at all during the said voyage.
While sailing upon its course, as aforesaid, and in said latitude 54° 18’ north, longitude 167° 19’ east, with a light wind, and no boats being out from the said vessel, but all of her company being on board of her, and no one on board of her being either hunting or fishing, the said schooner C. H. White was boarded by an officer from the Russian war cruiser Zabiaca, an armed cruiser of the Imperial Russian navy, and the master of the said C. H. White was ordered by the said officer of the said Russian war cruiser to come on board of the said cruiser and to bring with him all of his vessel’s papers. The master accordingly went on board of the said cruiser, taking with him the ship’s papers of the C. H. White, and the commanding officer of said cruiser, after examining the schooner’s papers, arrested the master, and then had all of the crew of the said C. H. White, except the mate, brought onboard of the cruiser, and the master and crew of the said C. H. White were kept on board of the said cruiser as prisoners, the master being kept under guard. The said commanding officer of the said Russian cruiser Zabiaca then and there seized the said schooner C. H. White and towed her to Nikolovsky Bay, Bering Island, and then placed the said schooner under the charge of a prize crew and sent it to Petropaulovsk; and the cruiser, with the master and crew of the said C. H. White as prisoners, sailed to Petropaulovsky, and arrived there on the 20th day of July, A. D. 1892, and the schooner C. H. White was there confiscated by the officers and agents of the [Page 213]Russian Government and appropriated to the use of the Imperial Government of Russia.
The master of the schooner C. H. White duly protested to the commanding officer of the said Russian war cruiser against the seizure of his vessel, and against all the other acts complained of; and on the 5th day of August, A. D. 1892, the said master duly lodged a protest with the governor of Petropaulovsk against the seizure of his vessel and against all the other said acts; and on the 31st day of August, A. D. 1892, the said master made a due and formal marine protest against said seizure to James G. Swan, a notary public in and for Port Townsend, State of Washington, United States of America, immediately upon his arrival at said city, said city being the first place in the United States at which he arrived after leaving Russian jurisdiction upon his release by the Imperial Russian Government.
At the time of the arrest of the said master of the schooner C. H. White he, the said master, was compelled, under duress and by threats of deportation to Siberia, to sign a paper which, being in the Russian language, an unknown tongue to the said master, he could not understand.
The said master was, upon his arrest, put in close confinement in a room in said cruiser, and there kept constantly confined under a guard of four marines until the arrival of the cruiser at Petropaulovsk, without bedclothes or any change of clothing nor any of his effects; and, owing to the conditions of his confinement, he fell sick and was refused medical attention, and owing thereto and to subsequent enforced exposure and hard treatment his health became permanently impaired.
Upon the final restitution of his effects to the said master he found that certain of his property had been abstracted therefrom, to wit: One chronometer, valued at $125; 1 aneroid barometer, valued at $7;.1 pair of marine glasses, valued at $25; 1 thermometer, valued at $1; 1 lot of charts, valued at $25; 1 lot of nautical books, valued at $15; 1 silver watch and gold chain, valued at $40; 7 razors, valued at $15; 1 coal-oil stove, valued at $3; 1 pair of rubber boots, valued at $5; 1 lot of clothing, valued at $25; 2 shotguns, valued at $96; 2 rifles, valued at $23.
Similarly, there were abstracted from the personal effects of the mate of the said vessel the following articles, to wit: Two nautical books, valued at $10; 1 pair of rubber boots, valued at $5; 1 oiled coat, valued at $5; 3 suits of clothes, valued at $9; 7 pairs of socks, valued at $3.50; 1 watch and chain, valued at $23; 1 razor, valued at $3; and 2 pocket-knives valued at $2.
Similarly, there were abstracted from the personal effects of the hunter, Neils Wolfgang, the following articles, to wit: One lot of underwear, valued at $7; 1 lot of shoes, valued at $4.50; 1 pair of trowsers, valued at $7; 1 oilskin coat, valued at $3.50; 1 lot of socks, valued at $2; 1 pair of rubber boots, valued at $5; one gold ring, valued at $9; 1 knife, valued at 75 cents; 9 seal skins, valued at $18.
The officers and men, upon arriving at Petropaulovsk, were each allowed the sum of 15 kopecks a day for their subsistence, a sum equal, at the present rate of exchange, to about 40 centimes in French money, and at that time worth far less, and having in that country so small a purchasing power that it would only buy half a loaf of bread, so that all were obliged to beg in order to obtain sufficient nourishment to sustain life.[Page 214]
The master was obliged to seek such shelter as he could find at Petropaulovsk, and although weak and suffering from exposure and privation, he was obliged to content himself with such protection as was afforded by the hatch house of an American vessel then lying in port—an apartment 6 feet long, 6 feet wide, and 6 feet high, designed for keeping tools.
The mate and the rest of the crew, consisting of 10 white men and 4 Indians, were assigned for shelter by the officials of the Russian Government to a leaky shed 18 feet long by 10 feet wide, which they were obliged to share with 24 other persons. Thus 38 men were obliged to dispose themselves as best they might in a building the dimensions of which were insufficient to permit all of them to lie down at the same time upon the floor.
In support of these allegations the following documents are hereto annexed and submitted in evidence, marked, respectively, as follows, to wit:
- Exhibit F.—1. A duly authenticated copy of the memorial of the Eagle Fishing Company to the Department of State of the United States of America.
- 2. A duly authenticated copy of the deposition of L. M. Furman.
- Exhibit H.—A duly authenticated copy of the memorial of said Lawrence M. Furman to the Department of State of the United States, setting forth his claim for damages sustained by him by reason of the seizure of the schooner C. H. White and the acts connected therewith.
- Exhibit I.—A duly authenticated copy of the memorial of Andrew Ronning, mate of the schooner C. H. White, setting forth his claim for damages sustained by him by reason of the seizure of the said vessel and the acts connected therewith.
- Exhibit J.—A duly authenticated copy of the memorial of Neils Wolfgang, a hunter of the schooner C. H. White, to the Department of State of the United States, setting forth his claim for damages sustained by him by reason of the seizure of the said schooner and the acts connected therewith.
- Exhibit K.—A duly authenticated copy of the marine protest made by the said Lawrence M. Furman, master of the said schooner C. H. White, to James G. Swan, a notary public in and for Port Townsend, in the State of Washington, United States of America.
- Exhibit L.—A copy of Chart T of the United States Coast Survey, showing the waters in which the seizure of the C. H. White took place, and on which is indicated the point of intersection of the parallel of latitude 54° 18’ north and the meridian of longitude 167° 19’ west.
presentation of claims.
The claims of the owners, officers, and crew of the C. H. White for damages sustained by them by reason of the seizure of their vessel and the acts connected therewith were duly presented to the Imperial-Government of Russia, as is shown by the note of the then envoy extraordinary and minister plenipotentiary of the United States of America at the Imperial Court of Russia, dated December 26, 1894, a duly authenticated copy of which is hereto annexed and submitted in evidence, marked Exhibit M.
And these claims continued to be pressed by the legation of the United States at St. Petersburg and a settlement of them urged by said legation upon the Imperial Government of Russia.
On October 25, 1895, the legation of the United States at St. Petersburg received a note from the Imperial Russian ministry of foreign affairs, dated October 12, 1895, old style (October 24, 1895, new style), a duly authenticated copy of which is hereto annexed and submitted in evidence, marked Exhibit N, in which the Imperial Russian Government denied the allegations made by the claimants as to the circumstances of the seizure, and set up the claim that the schooner C. H. White was seized in latitude 50° 30’ north, longitude 167° 15’ west, and [Page 215]not, as stated by the master of the vessel, in latitude 54° 18’ north, longitude 167° 19’ west, but still, by the admission of the Imperial Russian Government, 23 miles from Russian land.
On the 27th day of January, old style (8th day of February, new style), 1899, the then chargé d’affaires of the United States at St. Petersburg, acting under instructions from the Government of the United States, addressed a note to the Imperial Russian minister of foreign affairs proposing a compromise of the claims arising out of the seizure of the said schooner, and a duly authenticated copy of the said note is hereto annexed and submitted in evidence, marked “Exhibit O.”
On the 26th day of March, 1899, the embassy of the United States at St. Petersburg received a response to the said note from the Imperial Russian minister of foreign affairs, dated March 13, old style (March 25, new style), 1899, refusing to make any compromise settlement of said claim. A duly authenticated copy of said response is hereto annexed and submitted in evidence, marked “Exhibit P.”
The following documents are also hereto annexed and submitted in evidence, marked, respectively, as follows, to wit:
- Exhibit Q.—A sworn copy of a translation of a paragraph occurring in a printed report of the director of the hydrographic department of the Imperial Russian ministry of marine, Vice-Admirai Wewel von Kruger, for the year 1875, printed in the Russian language at St. Petersburg, in the printing office of the Imperial ministry of marine, the said paragraph being on page 91 of said pamphlet. The original of said pamphlet forms part of Exhibit CC in the case of the Cape Horn Pigeon, in arbitration together with the present claims, and this exhibit is now referred to in the present case as here stated.
- Exhibit R.—A duly authenticated copy of a note received by the legation of the United States of America at St. Petersburg from the Imperial Russian ministry of foreign affairs, dated May 8, 1882.
- Exhibit S.—A duly authenticated copy of a note received by the legation of the United States of America at St. Petersburg from the Imperial Russian ministry of foreign affairs, dated June 1–13, 1882, together with its inclosure, all forming one exhibit.
- Exhibit T.—The sworn deposition of Johan H. C. Prein, president of the Eagle Fishing Company, as to the value of the C. H. White, her equipment and cargo, at the time of the seizure, and the probable catch of the vessel, as well as the loss sustained by the Eagle Fishing Company by reason of her seizure.
- Exhibit U.—The sworn deposition of Andrew P. Lorentzen as to the value of the C. H. White and her equipment.
- Exhibit V. —The sworn deposition of James Boyes as to the value of the C. H. White and her equipment.
- Exhibit W.—The sworn deposition of Charles Lutjens as to the value of the probable catch of the C. H. White during the season in which the vessel was seized.
- Exhibit X.—An authenticated copy of the certificate of registry of the C. H. White.
- Exhibit Y.—The sworn deposition of W. H. Grodt as to the identity of L. M. Furman.
- Exhibit Z.—An authenticated copy of the certificate of naturalization of Andrew Olsen, alias Andrew Ronning, as citizen of the United States of America.
- Exhibit AA.—An authenticated copy of the deposition of Andrew Olsen as to his identity.
- Exhibit BB.—An authenticated copy of the deposition of Martin Olsen to the same effect.
- Exhibit CC.—An authenticated copy of the deposition of Theodore Lowassen to the same effect.
- Exhibit DD.—Senate Document No. 59, Fifty-fifth Congress, second session, Bering Sea awards.
treaty obligations and the law of nations.
By the stipulations of the treaty of 1824 between the Government of the United States of America and the Imperial Government of Russia it was 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 [Page 216]disturbed nor restrained, either in navigation or in fishing, or in the power of resorting to the coasts, upon points which may not already have been occupied, for the purpose of trading with the natives, saving always the restrictions and conditions determined by the following articles.
The same declaration was made in the treaty of 1825 between Russia and Great Britain, and both of these treaties were concluded as the result of the protests of the Governments of the United States and Great Britain against the claims of the Imperial Government of Russia of exclusive jurisdiction within the Bering Sea beyond the limits of ordinary territorial waters.
In the tribunal of arbitration convened at Paris under the treaty between the United States of America and Great Britain, concluded at Washington February 20, 1892, for the determination of questions between the two Governments concerning the jurisdictional rights of the United States in the waters of Bering Sea, a majority of the board of arbitration adopted the following decisions:
By the ukase of 1821 Russia claimed jurisdiction in the sea now known as the Bering Sea to the extent of 100 Italian miles from the coasts 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 said sea should be restricted to the reach of cannon shot from 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 jurisdiction in Bering Sea or any exclusive rights in the seal fisheries therein beyond the ordinary limit of territorial waters.
The body of water now known as the Bering Sea was included in the phrase “Pacific Ocean” as used in the treaty of 1825 between Great Britain and Russia.
No exclusive rights of jurisdiction in Bering Sea and no exclusive rights to seal fisheries therein were held or exercised by Russia outside of ordinary territorial waters after the treaty of 1825.
The United States has not any right of protection or property in the fur seals frequenting the islands of the United States in the Bering Sea when such seals are found outside the ordinary 3-mile limit.
(See the proceedings of the tribunal.)
It has therefore been decided by this international tribunal of arbitration, as is shown in these decisions and in its final award, that the Bering Sea is an open sea, the common highway of all nations, and that no nation can of right exercise in it jurisdiction over vessels frequenting it for purposes lawful under international law beyond such ordinary territorial waters therein as are contiguous to its coasts, and that all nations have the right to navigate the Bering Sea and to fish and take seals therein outside of such territorial waters.
It is admitted by the Russian Government that the C. H. White was more than 20 miles from Russian land when she was arrested. She was therefore upon the high seas and wholly without Russian jurisdiction.
Chancellor Kent has stated:
The open sea is not capable of being possessed as private property, the free use of the ocean for navigation and fishing is common to all mankind, and the public jurists generally and explicitly deny that the ocean can ever be appropriated.
To-day the whole extent of the sea within cannon shot of shore is regarded as formng part of the territory, and hence a vessel captured under the guns of a neutral fortress is not good prize. All that we have said of parts of the sea near to the coast is to be said in particular and with greater reason of roadsteads, bays, and straits as still more susceptible of occupation and more important to the country. But I speak of bays and straits of small extent, and not of great expanses of water to which are sometimes given these names—as Hudson Bay, the Straits of Magellan—over which empire could not extend and still less ownership. (Laws of Nations, book 1, chap, xxiii, sees. 289, 291.)
It is sufficient to say that the reason of the thing, the preponderance of authority, and the practice of nations have decided that the main ocean, inasmuch as it is the necessary highways of all nations and is from its nature incapable of being possessed, can not be the property of any one State. (Commentaries on International Law, third edition, Chap. V., pp. 247–248. CLXXII.)
The very eminent Russian jurist, M. F. de Martens, counsel for the Imperial Russian ministry of foreign affairs, writes as follows:
In our day legislation and jurists are in accord in recognizing the liberty of the ocean, and no people can set up the claim of governing it. To-day those portions of the sea which communicate with the ocean are recognized as free and accessible to all the world even when they are surrounded by the possessions of a single State. (Treatise on International Law, Vol. I, p. 494.)
Quoting further from the same treatise:
The ocean is free for all peoples. No nation can be interdicted from engaging in fishing and other peaceable enterprises on the high seas. If all possess there an equal right it follows that no State can there impose its laws on the others, cause judgment to be passed on foreign navigators or sailors, nor arrest nor search the vessels of another country.
It remains to show that the sea can not be the property of any nation; and as what has been said regarding full and complete ownership is equally applicable to its functions—as, for example, the right of use, of gathering its fruits, of taking its products—it is demonstrated that no nation can possess these rights of property exclusively; that the use of the sea remains eternally open and common to all; that it is, so to speak, the patrimony of all mankind, a patrimony indivisible and which must forever remain indivisible. (Diplomacy of the Sea, vol. 1, p. 128.)
The same author remarks:
As to particular and interior seas a right of exclusive domain and sovereignty on the part of one nation over such a sea is only incontestable when that sea is totally surrounded by its territory so that it forms an integral part of it and could absolutely serve only as a means of communication and of commerce between the citizens of that nation. Then, indeed, none of the conditions which interfere either with ownership or empire of the seas are applicable. But the moment that several different States possess the shores of such sea, none of them can call itself either owner or sovereign to the exclusion of the others. (Ibid., p. 159.)
In the arbitration under the convention of February 8, 1863, between the United States and Great Britain, of the claims growing out of the seizure of the American fishing schooner Washington in the Bay of Fundy by one of Her Britannic Majesty’s cruisers, the umpire declared:
The Bay of Fundy is from 65 to 75 miles wide and from 130 to 140 miles long. It has several bays on its coast. Thus the word bay, as applied to this great body of water, has the same meaning as applied to the Bay of Biscay and the Bay of Bengal, over which no nation can have the right to assume sovereignty.
But apart from all abstract reasoning or interpretation of the phraseology of any treaty, or the application of the principles of International Law to the special case, the Russian Government has itself admitted that its jurisdiction in the Bering Sea is confined to the limits of ordinary territorial waters, and has itself defined such limits as extending to 3 miles from its coasts. This admission on the part of the Imperial Government is contained in the documents hereto annexed and marked “Exhibits Q, R, and S,” already recited.
It is claimed by the master and owners of the C. H. White that the vessel was seized by the Russian cruiser Zabiaca at a point 80 miles from the nearest Russian land, while the statement of the Russian authorities is that the seizure was made at 23 miles from Russian land, [Page 218]as is shown by the statements contained in the note of the Imperial Russian ministry of foreign affairs, dated October 12 (24), 1895, submitted in the evidence herewith and marked “Exhibit N.”
This is a question of fact in which the testimony of the officers of the respective vessels appears to differ. The claimants are unfortunately unable to produce the documentary evidence as to this fact, owing to the seizure of all the ship’s papers of the C. H. White, including the log book, by the Russian officers. But in any case, the distance of 23 miles, claimed by Russia as the point at which the seizure was made, is far without any possible marine jurisdiction of any State. Nor is the claim set up, that the C. H. White had at one time been within 11 miles of Medney Island, justification of the seizure of the vessel. This statement is wholly at variance with the sworn testimony of the master of the vessel, but whether or not the schooner was at 11 miles from Medney Island she was at all events quite without Russian jurisdiction. It is not at all admitted that the C. H. White ever was as near to Russian territory, before her seizure, as 11 miles, but it is claimed with confidence that her master would have been quite within his rights in taking her within that distance of Russian lands up to the accepted limit of marine jurisdiction, namely, a marine league from the Russian coast, and of there engaging in his lawful occupation of fishing and seal hunting.
And it is further claimed that none of the allegations set forth in the note of the Imperial Russian ministry of foreign affairs of October 12 (24), 1895, just cited, even if true, offers sufficient ground for the seizure and confiscation of a vessel of a friendly State, upon the high seas, and the imprisonment and maltreatment of her crew.
Upon Russia’s own showing the C. H. White was upon the high seas when seized, nor is any evidence adduced to show that she ever had been within Russian jurisdiction for any purpose whatsoever. The only justification of the seizure offered is the statement that the vessel’s log book had not been kept for two days; that certain entries in it are alleged to indicate that she had been cruising “in the neighborhood of the Commander Islands,” and that she bad on board apparatus for taking seals, together with 5 freshly killed seals which had not yet been skinned.
As to the allegation that the log book had not been kept up for two days, if it be true, that is a matter quite outside of Russian jurisdiction. The C. H. White was, when seized, upon the high seas wholly without Russian jurisdiction, and, sailing under the flag of the United States, her master was responsible only to the authorities of his own country for all acts or omissions of this nature.
Even if, contrary to the assertions of the master of the vessel, she had been cruising in the neighborhood of the Commander Islands, an allegation the truth of which, however, is not admitted, such an act does not constitute a depredation upon Russian territory or a trespass upon Russian territorial waters. Even within the 3-mile limit she had the right of innocent passage. In regard to this Hall writes:
In all cases in which territorial waters are so placed that a passage over them is either necessary or convenient for the navigation of the open seas, as in that of marginal waters or of an appropriated strait connecting unappropriated waters, they are subject to the right of innocent use by all mankind for the purposes of commercial navigation. The general consent of nations, which was seen to be wanting, to the alleged right of navigation of rivers may fairly be said to have been given to that of the open sea. Even the earlier and more uncompromising advocates of the right of appropriation reserved a general right of innocent navigation. For more than two [Page 219]hundred 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 mannt. (Hall, Treatise on International Law, fourth edition, Pt. II, Chap. II, pp. 164 and 165.)
liability of russia.
The Russian Government has attempted in the note of October 12 (24), 1895 (Exhibit N), to justify the seizure of the C. H. White on the ground of her having “probably” taken seals within Russian territorial waters. There is no evidence whatever offered by the Russian Government to support this allegation, and on the contrary the master of the schooner positively denies, under oath, that any seals were taken within Russian territorial waters.
No invasion of Russian territory or territorial waters or depredation therein or any corpus delicti has been shown by Russia, nor is there a particle of affirmative evidence to show that this vessel or anyone connected with her ever entered Russian waters for any purpose whatsoever.
The utmost that the Russian Government has been able to say in justification of the seizure is that the vessel was taken on the high seas on suspicion of having violated the municipal laws of Russia.
No judicial proceedings, so far as the parties in interest in the vessel or the Government of their country has ever been informed, were ever held to condemn or acquit the C. H. White, but she was simply confiscated and her master and crew made to suffer penal imprisonment on suspicion. No Government or its agents has the right to seize and confiscate foreign vessels and their cargoes on the high seas and imprison and maltreat their crews merely because it is believed that such vessels or their crews have violated the municipal laws of the country. If, in the exercise of belligerent rights, the vessel of an enemy State, seized by a ship of war, is entitled to trial before a duly organized prize tribunal before confiscation, much more is the vessel of a friendly State, in time of peace, entitled to such proceedings, even were the right of visit and search in time of peace admitted.
The question of visitation and search and of seizure of neutral vessels without the limits of territorial jurisdiction is thus discussed by Mr. Dana in his note, No. 108, to Wheaton’s International Law:
It is true that Chief Justice Marshall admitted the right of a nation to secure itself against intended violations of its laws by seizures made within reasonable limits, as to which, he said, nations must exercise comity and concession, and the exact extent of which was not settled; and, in the case before the court, the 4 leagues were not treated as rendering the seizure illegal. This remark must now be treated as an unwarranted admission. It may be said that the principle is settled; that municipal seizures can not be made for any purpose beyond territorial waters. It is also settled that the limit of these waters is, in the absence of treaty, the marine league or the cannon shot. It can not now be successfully maintained either that municipal visits or search may be made beyond territorial waters for special purposes or that there are different bounds of that territory for different objects. But as the line of territorial waters, if not fixed, is dependent on the unsettled range of artillery fire, and if fixed, must be by an arbitrary measure, the courts, in the earlier cases, were not strict as to standards of distance where no foreign powers intervened in the causes. In later times it is safe to infer that judicial as well as political tribunals will insist on one line of marine territorial jurisdiction for the exercise of force on foreign vessels in time of peace for all purposes alike.
The following comment of Wheaton has a distinct bearing on the subject:
Pirates being the common enemy of all mankind, and all nations having an equal interest in their apprehension and punishment, they may be lawfully captured on [Page 220]the high seas by the armed vessels of any particular State and brought within its territorial jurisdiction for trial in its tribunals.
This proposition, however, must be confined to piracy, as defined by the laws of nations, and can not be extended to offenses which are made piracy by municipal legislation. (Elements of International Law by Henry Wheaton, sixth edition, by Wm. Beach Lawrence, p. 185.)
But, however, while denying the right of the Russian Government to in any way interfere with the voyage of the C. H. White, the suspicions upon which she was arrested not having been substantiated must be regarded as unfounded.
Pirates as hostes humani generis should be pursued by all nations. It is justifiable to arrest, search, and deliver to justice at the nearest port, even be this a foreign port, every vessel legitimately suspected of piracy. It follows from which, in the application of this principle, since a vessel unjustly arrested is entitled to damages, etc. (F. de Martens, Treatise on International Law, Vol II, p. 342.)
Wheaton, in speaking of the suppression of the slave trade, says. (Elements of International Law, Lawrence, p. 193):
No nation could exercise the right of visitation and search upon the common and unappropriated parts of the ocean, except upon the belligerent claim. The right of visitation and search on the high seas did not exist in time of peace.
Ortolan says (Diplomatic de la Mer, T. 1, p. 149):
If it is possible that particular measures of surveillance, inspection, or police may be authorized by one flag to another, this could only exist in virtue of special and reciprocal treaties, obligatory only upon the contracting parties, and are of no effect as regards States which have not consented thereto.
Wheaton (p. 188) cites Hautefeuille in the following language:
La visite is not a rights but the exercise of a belligerent claim of injuring the enemy, which can not exist in time of peace except as a violation of the independence of nations. The right of visit he defines to be the power granted to a foreign ship of war to stop a vessel and to go on board of her, and verify by her papers if she belongs really to the nation whose flag she bears.
The decisions of the Paris tribunal of arbitration upon the question in dispute between the United States and Great Britain in regard to the fur-seal fisheries in Bering Sea must be considered as setting at rest any doubts as to the ownership in the seals beyond territorial limits or the right of seizure beyond such limits for purposes of preservation of the fisheries.
THE MEASURE OF DAMAGE.
The seizure of the C. H. White was therefore unwarrantable and unjustifiable, and the Russian Government has become responsible for all injuries to the parties in interest resulting from the seizure and confiscation of the vessel, as well as from all the other acts connected therewith.
The loss of the vessel itself is not the only direct injury sustained by these claimants in consequence of the confiscation of their vessel. The loss of the use and service of their schooner and her outfit during the season for the purpose for which she was equipped is also to be taken into consideration. This is an injury sustained, not alone by the owners, but by the officers and crew as well, who were thereby deprived of the means of earning their living. No one has the right to deprive another of the means of gaining his sustenance in any lawful calling which he may see fit to engage in. Equally, no one has the right, by a summary act, to divert the earning capacity of the invested capital of another. If the laborer is worthy of his hire, so also is invested capital entitled to its legitimate profits.
The damages sustained by these claimants can not be measured by [Page 221]the value of their vessel and its outfit alone. They had committed no trespass upon Russia, either by an invasion of her territory or waters, or by any other offense against Russian rights, and they were entitled to go peaceably on their way, employing their vessel and their own services in the lawful calling in which they were engaged. When the Russian Government, through its officers or agents, assumed to deprive them of this right it became responsible for all the consequences of its act. To restore to these parties, at the present time, their vessel or its value would not reimburse them for their losses, or place them in the advantageous position they occupied at the time of the seizure. Neither would the addition of interest on such payment compensate the parties for their loss. The owners had not embarked their capital in a hazardous undertaking upon the ocean to gain simply such interest as their money might earn at home by its investment in securities. In every well-regulated business undertaking, in which capital is involved, the interest upon the capital is deducted from the gross proceeds before profits are declared. As it is now impossible to put the parties back where they were at the time of the seizure, the only just basis of compensation for the injuries sustained by them owing to the seizure is upon a fair estimate of the probable catch, added to the value of the vessel and its outfit, together with interest upon the whole. As upon a sealing voyage the crew are compensated by lay in lieu of wages, such a basis discharges the indemnity due both to them and to the owners.
The damages here claimed for loss of catch are in no sense indirect damages for loss of speculative profits. They represent an actual loss sustained by the owners, officers, and crew, and are of the nature of demurrage. Had the Russian Government, at the moment of the seizure, handed over to the master of the C. H. White the full value of his vessel and equipment and returned him with his crew to San Francisco the voyage of the schooner would have been a positive loss to all the parties concerned. The earnings of a sealing vessel depend upon her taking advantage of her opportunity when it arrives, and the loss of her use with that of her outfit and crew in the middle of the season deprives her owners of any return upon their investment and her officers and crew of all remuneration for their labor.
The rule of damages is well settled that in a fishing voyage the loss of the services of a fishing vessel is to be compensated upon the value of the vessel’s use. 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 the 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.
In the case of the Costa Rica Packet, the distinguished arbitrator., Mr. F. de Martens, 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 Tarnata without a master, or, still less, to sell her at a reduced price;[Page 222]
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 been fit to take command and to carry on the whaling industry; and
Whereas thus the losses sustained by the proprietor of the vessel Costa Rica Packet, the officers, and the crew, in consequence of the detention of Mr. Carpenter, are not entirely the necessary consequence of this precautionary detention.
Thus the arbitrator in this case, clearly admitting the justice of the claim for damages owing to the loss of the use of the vessel, found that certain contributory acts of negligence on the part of the parties in interest in the vessel so modified the degree of responsibility of the Dutch Government for the loss of use of the vessel as to entitle it to consideration in estimating the amount of the indemnity due.
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.
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 had 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.)
In the case of the United States vessel, the 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.
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.
In the case of the Hope On, detained by the Chilean Government in 1883 at Talcahuano, the commission of arbitration, in rendering its award, said:
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.)
(See also the following cases: The Baltimore, 8 Wallace, 377–385; Cayuga, 14 Wallace, 270; Freddie L. Porter, 5 Federal Reports, 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 Resolute, 8 Pro. Div., 109; the Clarence, William Reb., 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, Milo, and the bark Nile, captured by the Confederate cruiser Shenandoah and compelled to abandon their whaling voyages, in the decisions of the Court of Commissioners of Alabama Claims:
(See also: The Walter Pharo, 1 Lowell, 437; Stormless, 1 Lowell, 153; Mayflower, 1 Brown Adm., 376; Transit, 4 Ben., 138; Swift v. Brownell, 1 Holmes 467; the Antelope, 1 Lowell, 130; Bourne v. Smith, 1 Lowell, 547; Frates v. Howland, 2 Lowell, 36; Hussey v. Fields, 1 Sprague, 394–396; Knight v. Parsons, 1 Sprague, 279; two hundred and ninety 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, 2d Ben., 125; Barrett v. Williamson, 4 McLane, 589; Jolly v. Terra Haute, 4 McLane, 589.
This subject has recently undergone the most thorough and careful examination by the commission appointed to adjust the claims of the 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 and of the American 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 those cases at least the commission adopted the rule as contended for by the English Government and as herein stated. In the awards upon [Page 224]all of these claims it is perfectly clear that the loss of catch was allowed in measuring the damages. 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 $15,450; the original claim was for $19,674, of which $250 was for legal and other expenses, $19,424 being for balance of estimated catch of 2,500 skins at $8. It was admitted that the Triumph had transshipped part of her season’s catch before entering Bering Sea on or about July 4; a considerable part of the season had therefore already 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 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 can be no possible room for doubt that this was the rule adopted by the Bering Sea Commission in fixing the damages in these cases. A careful examination of the cases shows that the rule here contended for was universally applied.
individual claims of lawrence m. furman, master, and of the crew.
In the claim of Lawrence M. Furman, the master of the C. H. White, for indemnity for the injuries suffered by him, the following facts must be taken into consideration in addition to the mere fact of the summary and unwarrantable arrest of this citizen of a friendly State by the agents of the Imperial Government of Russia, for no other reason than the suspicion that he and his subordinates had violated, or might in the future violate, the municipal laws of Russia. First, Captain Furman was compelled, under duress and threats of deportation to Siberia, and against his protest, to sign a document of which he could of his own knowledge have had no understanding of the contents, not speaking or understanding the Russian language, in which it was written. The claim that certain written comments made by him upon the document are evidence that he knew what he was signing can not be admitted. It is not improbable that the purport of the document was explained to him, but whether wholly or in part, or how exactly, there is no evidence to show; and in any case such an ex parte translation can not be said to have acquainted him with the exact meaning and bearing of the document, though it might suffice to indicate that some comment on his part was necessary. The whole transaction evinced a purpose to compel Furman by threats to sign a paper containing admissions he could not understand, with the object of relieving the Russian officers and Government of all liability. But apart from the question of whether or not he knew what he was signing, the use of threats to compel him to perform the act constituted a grievous wrong, which should be taken into account in measuring the damages which should be awarded to this citizen of the United States.
His subsequent close and penal confinement and the refusal of medical aid to him while suffering illness, caused by enforced exposure to which he was subjected, entailing permanent injury to his health; the indignities and hardships suffered by him, together with the loss of valuable personal effects, are all elements of which the sum amounts [Page 225]to a grave injury, for which he is entitled to fully adequate compensation from the Government whose agents or officers undertook to inflict upon him this great and unwarrantable wrong to his person and to his citizenship of a friendly State.
The damages suffered by the mate, Andrew Ronning, and the hunter, Neils Wolfgang, are only less in degree.
The loss by all of these officers of the C. H. White of the most valuable of their effects is of itself evidence of a disregard on the part of the Russian officials connected with this affair of the responsibilities and obligations incumbent on them in their relations with these citizens of a friendly State. That these officials, having taken it upon themselves to make these arrests on suspicion, should not have either at once put them in possession of their personal belongings or carefully sealed them up in such a manner as to preclude the possibility of their loss by accident or by the pilfering of dishonest persons, indicates a reckless disregard of the personal rights of their prisoners which must go far to convince the judicial mind of the likelihood of their committing other acts of wrong in their treatment of them. Doubtless these are the isolated acts of individuals which in no sense reflect upon either the humanity or the sense of right of the Russian Government; but that Government, having clothed these their agents with the powers they exercised, became responsible for their wrongful acts.
One has only to consider the size of the building in which the crew was confined, and the number of persons there incarcerated, for evidence of the general harshness with which these people were treated. This building was 18 feet long by 10 feet wide, and in it were confined 38 men, namely, 14 from the C. H. White and 24 others from other vessels. Supposing that these prisoners lay in three rows upon the floor, each man would have a space of 10 inches in width, in two of the rows, and of a little over 9 inches in the third row.
The bill of damages hereto annexed is submitted in the confident belief that it will be found to present an entirely equitable claim for the indemnity due to the owners, officers, and crew of the C. H. White for the losses and injuries suffered by them.
Statement of damages.
|Value of vessel and equipment.||$35,000.00|
|20 seal skins, at $14 each||280.00|
|8 barrels of mackerel||160.00|
|1 ton of codfish||260.00|
|Loss of probable catch, 2,480 seals, at $14 each||34,720.00|
|Loss of probable catch of fish||10,300.00|
|Personal claims of Captain Furman||25,000.00|
|Personal claims of Andrew Ronning||15,000.00|
|Personal claims of Neils Wolfgang||10,000.00|
|Claims of the crew for imprisonment, physical and moral suffering, and injury to health, 10 men, at $2,000 each||20,000.00|
|Interest at 6 per cent for nine years||81,388.80|
- The word “here” has been corrected to read “her,” as above noted.—W. T. Hess.↩