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Counter memorandum of the defendant party to the honorable arbitrator, Mr. T. M. C. Asser, Counselor of State of the Kingdom of Holland.

in the arbitration for the purpose of adjusting the differences between the government of the united states, claimant party, and the imperial russian government, defendant party, relating to the detention and seizures of american vessels cape horn pigeon, james hamilton lewis, c. h. white, and kate and anna

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COUNTER MEMORANDUM.

The Imperial Russian Government, having taken cognizance of the data contained in the memorandum presented by the United States Government to the honorable arbitrator, Mr. Asser, has the honor to formulate the following observations relative to the four cases in question:

  • First case, Cape Horn Pigeon.
  • Second case, James Hamilton Lewis.
  • Third case, C. H. White.
  • And finally, fourth case, Kate and Anna.

The defendant party recognizes the party claimant’s demands for indemnity for material losses as justified to a certain extent in the Cases I and IV, but rejects from the very foundation the claims which relate to Cases II and III.

As to the question of interest upon the total amount of indemnity which may be due, the defendant party does not consider that it has the right to raise objections, and, in accordance with the customs obtaining in its country, is ready to consent to a tax of 6 per cent per annum.

Before proceeding to examine in detail the four cases under discussion, the defendant party believes it its duty to state the conditions under which these cases occurred.

The question of the protection of seals from destruction, with which they were threatened by marauding vessels, whether on the high seas or in territorial waters, has been for some time a matter of particular solicitude to the Governments of Russia and of the United States of America as the possessors, in the islands of Commander, Pribilof, and Tuleny, of the only landing places at present known of these precious animals.

To this end the Cabinet of Washington was obliged, long before the occurrence of the four cases in question, to treat with the Government of Great Britain because of the fact that seal fishing was specially carried on by Canadians.

The negotiations which took place upon this subject in 1887, in which the Russian Government also took part, did not bring about the desired result.

However, in 1890 the conferences were renewed between England and the United States of America, the latter power demanding that her jurisdiction be recognized far beyond territorial waters, which demand was not admitted by the London Cabinet. An agreement between the two Governments was concluded on the 15th of June, 1891. It was entitled “Agreement for a modus vivendi between the United States and Great Britain in relation to the fur-seal fisheries in Bering Sea.”

By virtue of this agreement the two contracting parties engaged to interdict their subjects reciprocally, and as much as possible to prevent [Page 286]them from killing seals during one year—that is to say, until the end of May, 1892—either in that part of the Bering Sea situated to the east of the line of demarcation established by the treaty of 1867 between Russia and the United States or on the Pribilof Islands, with the exception that 750 seals might be killed to supply the needs of the Aleutian population of these islands. Persons and vessels guilty of infringement of this interdiction were liable to seizure.

In concluding this agreement the object of the two powers was to pave the way for future negotiations as well as to be able to procure on the spot necessary data upon the subject of the conditions under which this industry was or might be carried on. This data would serve as material for the solution of differences arising between the two countries, which would have to be submitted to arbitration, as article 4 of the agreement also provided for.

The necessity for exceptional measures on this subject was so well recognized at this time by the interested Governments that the London Cabinet, through the medium of its representative at St. Petersburg, requested the Imperial Government to interdict Russian subjects during the existence of the Anglo-American agreement from sealing beyond the limits of the line of demarcation fixed by this agreement, and even to authorize the English naval authorities to seize vessels under the Russian flag which might infringe upon this interdiction.

This proposition was not accepted by the Imperial Government, which for its part did not fail to take measures for the protection of seals in the western part of Bering Sea, and accentuated this determination by sending a Russian man-of-war to those parts.

Meantime in the proximity of the Russian coasts there began an influx of foreign vessels engaged in poaching, and it was therefore that in 1892 a cruiser of the Imperial navy, furnished with instructions ad hoc, was sent to protect the Russian interests engaged in the preservation of the seal herds. From subsequent data it appears that, according to the estimates of the Russian concessionary company as to the sealing rights in these parts, there were killed in 1891 by poaching vessels 60,000 seals, of which 10,000 were within the limits of Russian territorial waters. American and English vessels had participated equally in this poaching.

As for the measures taken by the American Government on its part during the preceding years against vessels engaged in poaching in waters which it considered under its jurisdiction, it will suffice to refer, among others, to the Annex C of the award of the Paris tribunal of arbitration of the 29th of February, 1892, and in which are mentioned a certain number of seizures made by American cruisers, certain of which took place at considerable distance from the coast, even up to 115 miles.

In presenting the above explanations, to which may be added the facts developed further on in each particular case, the defendant party looks to the high equity of the arbitrator to decide these cases, which occurred, as a matter of fact, in a locality over which the claimant demands the right of jurisdiction far beyond the waters surrounding her own coasts. Under these conditions the defendant party, who had at that time taken such measures as it deemed necessary, was justified in all good faith in believing that the present claimant could not contest the legitimacy of actions having for their object the protection of interests then considered as common.

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