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Case No. 4: The “Kate and Anna.”

[Page [256]] [Page 257]

CASE NO. 4.
The “Kate and Anna.”

statement of the case.

The Kate and Anna was an American schooner owned and commanded by the complainant, Glaus Lutjens, sometimes called Charles Lutjens, a naturalized citizen of the United States of America.

The said schooner was duly enrolled and registered at the port of San Francisco and was duly and regularly cleared from said port of San Francisco on March 1, 1892, bound upon a hunting and fishing voyage in the North Pacific Ocean or elsewhere as her master might direct, and the said schooner was in all respects sea worthy and well and sufficiently manned, victualed, furnished, and equipped for a vessel in the merchant service and particularly for the voyage she was about to undertake.

In support of the above allegations the following documents are hereto appended marked, respectively:

  • Exhibit A.—A duly authenticated copy of the enregistration of said schooner, the Kate and Anna, at the custom-house of the United States in San Francisco.
  • Exhibit B.—A duly authenticated copy of the outward manifest of the said schooner Kate and Anna.
  • Exhibit C.—A duly authenticated copy of the clearance papers of the said Kate and Anna.
  • Exhibit D.—A duly authenticated copy of the certificate of naturalization of the said Claus Lutjens, master and owner of the said Kate and Anna.

Proceeding upon his voyage as aforesaid the said master and owner took the said schooner Kate and Anna into the waters of the North Pacific Ocean and there killed and took upon the high seas within the jurisdiction or territorial waters of no nation 124 seals, the skins of which were duly preserved and stored within the said vessel.

And upon the 12th day of August in the same year, to wit, 1892, when in latitude 54° 9’ north and longitude 168° 21′ east, by correct observation, a point upon the high seas without the jurisdiction and territorial waters of any nation and more than 30 miles from the nearest Russian land, and while sailing in a southwesterly course and no one from said vessel being either hunting or fishing, the said Claus Lutjens was compelled, by an armed cruiser of the Imperial Russian navy, namely, the Zabiaca, a cruiser regularly armed, equipped, and commissioned as a man-of-war by the Imperial Government of Russia, to come to. And the said schooner Kate and Anna having come to the said cruiser the Zabiaca came alongside of her and the commanding officer of the said Zabiaca ordered the master of the Kate and Anna to come on board of the cruiser and to bring with him the said schooner’s papers. Accordingly the said Claus Lutjens, master and owner of the said schooner Kate and Anna, took the logbook of his said vessel and her other official papers and went on board of the Zabiaca and delivered the said papers to the commanding officer of [Page 258]the Zabiaca for his examination. And the said commanding officer made an entry in the said logbook to the effect that the Kate and Anna was arrested in latitude 54° 9′ north, longitude 168° 21′ east, and not in Russian waters, but because the said logbook did not disprove that she has been sealing on the sealing ground of the Commander Islands her seals were confiscated. And the said commanding officer of the Zabiaca then and there ordered him to send on board of the said Zabiaca all of his seal skins, to cease sealing, and to return to his home. And the said Claus Lutjens, under fear of the guns and armament of the said Russian war cruiser, and believing that if he failed to obey the said orders that his vessel would be seized and confiscated, did send on board of the Zabiaca all his seal skins, which were then and there confiscated, and to his great loss and injury ceased sealing and taking his schooner, returned to San Francisco forthwith. And at the time of the arrest of his vessel and the confiscation of his seal skins, the said Lutjens protested to the commanding office of the Zabiaca against all of the aforesaid injurious acts, and upon his arrival in San Francisco, or as soon thereafter as he conveniently could, the said Claus Lutjens, went before one Harry J. Lask, a notary public, in and for the city and county of San Francisco, State of California, and before him duly made a regular marine protest.

In support of these allegations the following documents are hereto annexed and submitted in evidence, to wit:

  • Exhibit E.—The original log book of the said schooner Kate and Anna upon her said voyage.
  • Exhibit F.—A duly authenticated copy of the marine protest of the said Claus Lutjens made before the said Harry J. Lask, notary public in and for the city and county of San Francisco, Cal., dated October 18, A. D. 1892.

presentation of the claims.

And thereafter the said Claus Lutjens addressed a memorial to the Government of the United States of America duly setting forth his grievances and asking that they be remedied, a duly authenticated copy of which memorial is hereto annexed and submitted in evidence, marked “Exhibit G.”

And acting-upon the request contained in the same memorial the Government of the United States, through its diplomatic representative at St. Petersburg, Russia, presented the claim of the said Claus Lutjens to the Imperial Government of Russia, and asked satisfaction therefor in a note dated November 9/21, 1894, from the then envoy extraordinary and minister plenipotentiary of the United States at St. Petersburg to the Imperial Russian minister for foreign affairs, a duly authenticated copy of which is hereto annexed and submitted in evidence, marked “Exhibit H.”

And in reply to said note of the diplomatic representative of the United States at St. Petersburg the Imperial Russian Government addressed a note to the envoy extraordinary and minister plenipotentiary of the United States at St. Petersburg, stating that indemnity for the confiscation of the seal skins on the Kate and Anna would only be due if it could be proved that these seals had been taken outside of Russian waters; but refusing to pay for the loss of use of the vessel. A duly authenticated copy of the said note, dated August 26, old style, September 7, new style, 1895, is hereto annexed and submitted in evidence, marked “Exhibit I.”

And the Government of the United States of America continued to [Page 259]press for a settlement of the claims of the said Claus Lutjens as aforesaid, and finally, through its diplomatic representative at St. Petersburg, offered to settle the said claim by compromise, as is shown by the note of the then chargé d’affaires of the United States at St. Petersburg, dated January 27, old style, February 8, new style, 1899, a duly authenticated copy of which is hereto annexed and submitted in evidence, marked “Exhibit J.”

In reply to the said note of February 8, new style, January 27, old style, 1899, offering a compromise in settlement of the claim, the Imperial Russian Government addressed a note to the embassy of the United States at St. Petersburg, dated March 13, old style, March 25, new style, proposing a basis of compromise wholly inadequate to indemnify the said Claus Lutjens for the losses sustained by him in consequence of the acts of the commanding officer of the Zabiaca, a duly authenticated copy of which said note is hereto annexed and submitted in evidence, marked “Exhibit K.”

And in further support of the allegations herein set forth and as evidence regarding the limit of jurisdiction of the Imperial Russian Government in the North Pacific Ocean, the following documents are hereto annexed and submitted in evidence, marked, respectively, as follows, to wit:

  • Exhibit L.—A copy of chart No. 900, of the United States Coast Survey, showing the waters in which the seizure of the Kate and Anna took place, and on which is indicated the point of intersection of the parallel of latitude 54° 9′ north and the meridian of longitude 168′ 21′ east.
  • Exhibit M.—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-Admiral 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 N.—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 for foreign affairs, dated May 8, 1882.
  • Exhibit O.—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 for foreign affairs, dated June 1–13, 1882, together with its inclosures, all forming one exhibit.

treaty obligations and the laws of nations.

The first article of the treaty of 1824 between the United States and Russia 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 already have been occupied, for the purpose of trading with the natives, saving always the restrictions and conditions determined by the following articles.

This article is practically identical with the first article of the treaty of 1825 between Russia and Great Britain.

In the course of the arbitration proceedings held under the treaty concluded between the United States and Great Britain at Washington, February 20, 1892, to determine the questions then pending between these two Governments, the following decisions were adopted:

  • First. 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 [Page 260]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 cannon shot from, shore, and it now appears that, from that time up to the time of 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.
  • Second. 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.
  • Third. No exclusive rights of jurisdiction in Bering Sea and no exclusive rights as to seal fisheries therein were held or exercised by Russia outside of ordinary territorial waters after the treaty of 1825.
  • Fourth. The United States has not any right of protection in the fur seals frequenting the islands of the United States in Bering Sea when such seals are found outside the ordinary 3-mile limit.

It can hardly be questioned that these rulings are equally applicable to any claim on the part of Russia to jurisdiction beyond ordinary territorial waters, or to any right of Russia of protection of the fur seals in the Bering Sea or North Pacific Ocean beyond ordinary jurisdictional limits.

Indeed, Russia has herself disclaimed any jurisdiction in the Bering Sea outside ordinary territorial waters, as is abundantly shown by all her acts, and by the evidence of Exhibits L, M, N, and O hereto annexed in the evidence submitted in this case.

The Bering Sea is therefore the high sea, the common highway of all nations, and no right of seizure thereon for alleged or suspected violation of the municipal laws of any nation can be maintained, nor has any nation the right of visitation and search thereon of vessels of friendly states in time of peace.

It is admitted by the Russian Government that the Kate and Anna 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.

Vattel says:

To-day every expanse of the sea which is within cannon shot of the coast is regarded as forming part of the territory, and for that reason a vessel taken under the cannon of a neutral fortress is not good prize.

All we have said of parts of the sea near the coasts may be more particularly said, and with greater justice, of roadsteads, bay, and straits as still more capable of being occupied, and more important to the safety of the country. But I speak of bays and straits of small extent, and not of the great expanses of the sea to which are sometimes given the names such as Hudson Bay, the Straits of Magellan, over which empire could not extend and still less ownership. (Le droit des Gens., 1, Chap. XXIII, sections 289, 290.)

Philimore says:

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 highway 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, page 247–248, CLXXII).

The very eminent Russian jurist, Monsieur F. de Martens, counsel for the Imperial Russian ministry of foreign affairs, writes as follows:

In our day legislations and jurists are in accord in recognizing the freedom of the ocean, and no people can set up the pretension of reigning over it as master. At [Page 261]present those portions of the sea which communicate with the ocean are regarded 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 peaceful enterprises on the high seas. If all possess an equal right in it it follows that no State can there impose its laws over the others, cause judgment to be passed on foreign navigators or sailors, nor arrest, nor search the ships of another country.

Ortolan writes:

It is demonstrated that the sea can not be the property of any nation, and as what has been said of complete ownership is equally applicable to partial ownership—as, for example, the right of use, of gathering its fruits, of taking its products—it is demonstrated that no nation can have exclusively these partial rights of ownership; that the use of the sea remains forever open and common to all; that it is, so to speak, the patrimony of all mankind, a joint patrimony with regard to which the joint ownership can not cease. (Diplomatic de la Mer., Vol. Ier, p. 128.)

The same author remarks:

As to interior seas, a right of exclusive domain and sovereignty on the part of a nation over such a sea is only incontestable when that sea is totally included within the territory, so as to form an integral part of it, and so that it can absolutely only serve as a means of communication between the citizens of the nation in question alone. Then, indeed, none of the conditions obstructive to ownership or to empire of the seas are applicable. But the moment that several different States possess the shores of such a sea, none of them can call itself the owner or sovereign to the exclusion of the other. (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 coasts. Thus, the word bay, as applied to this great body of water, has the same meaning as applied to the Bay of Biscay, the Bay of Bengal, over which no nation can have the right to assume sovereignty.

the measure of damages.

The items of damage claimed on behalf of the owners of the Kate and Anna are three, viz, for the value of the seal skins illegally seized and confiscated from, the Kate and Anna, for loss of probable catch of the vessel, and for interest upon the total amount from the time of the arrest of the schooner until payment of the award fixed by the honorable arbitrator at 6 per cent.

The rule for estimating the damages sustained in such cases is well settled and was applied in all of the cases of seizures of British vessels by the authorities of the United States by the commission appointed under the convention of February 8, 1896, to assess the damages sustained by the various claimants under the award of the Paris tribunal. Out of 20 of these claims, 6 were for damages sustained by vessels which had been warned out of Bering Sea. They are as follows: Claim No. 4, the Favorite; No. 11, Triumph; No. 12, Juanita; No. 14, Triumph; No. 17, Ariel; No. 18, Kate. In all these cases the commissioners awarded damages, not alone for seal skins confiscated, but for loss of catch.

As to the property seized by the commander of the cruiser, there can be no question of the indemnity due. The proposition of the Russian Government that indemnity can be due only on proof that the seals from which the skins were taken were caught outside Russian jurisdiction, is wholly untenable. Russia has shown no invasion of [Page 262]her territory by this or any other vessel, nor any evidence in the smallest degree connecting the Kate and Anna with any depredations, or even that any depredation had been commited by anyone. The skins were taken by the Kate and Anna in the regular practice of her lawful calling upon the open sea, and upon that open sea they were unwarrantably taken from her by an armed cruiser of the Russian navy. That her owners should be called upon to prove that they were not stolen from Russian waters before restitution be made is a proposition unheard of in international relations. Were such a precedent established no merchant ship would be secure upon the high seas against the confiscation of her merchandise.

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.

The earnings of a fishing 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 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 been fit to take command and to carry on the whaling industry;

And whereas, thus, the losses sustained by 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 admitted 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 [Page 263]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 covered. When there is no market price, evidence of the profits that she would have earned if not disabled is competent. (United States Report, 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 collisions 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 expense 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 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 Chilian 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. Bordon v. Chile.)

See also the following cases: The Baltimore, 8 Wallace, 377–385; Gayuga, 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, [Page 264]370–374; the Resolute, 8 Pro. Div., 109; the Clarence, 3 William Reb., 283–286; the Gleaner, L. T. N. S., 650; the Marsden Collision, second 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 Phroa, 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; Prates v. Rowland, 2 Lowell, 36; Hussey v. Fields, 1 Sprague, 394–396; 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, 2d Ben., 125; Jolly v. Terre Haute, 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 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 $15,500; 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 transhipped 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 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.

The rule of allowing interest upon claims of this nature is so well established as to need little comment in the present instance; indeed, it may be said to be the universal practice in arbitration cases.

The accompanying bill of Damages is submitted herewith in the confident belief that it sets forth equitably the amount of indemnity due to the claimant for the injury done him.

[Page 265]

bill of damages.

Seizure of 124 seal skins, at $14 each $1,736.00
Loss of probable catch, 625 seals, at $14 8,750.00
Interest at 6 per cent for, say, 9 years 5,662.44
Total 16,148.44

[9] No. 5122.—United States of America.