Foreign Relations of the United States, 1902, Whaling and Sealing Claims Against Russia, On Account of Arrest and Seizure of the American Vessels “Cape Horn Pigeon,” “James Hamilton Lewis,” “C. H. White,” and “Kate and Anna,” Appendix I

Session of Friday, June 27, 1902.

[June 27, 1902]

The first session is opened at 1.30 p.m. in the hall of Permanent Court of Arbitration at The Hague.

There are present: The honorable arbitrator, the counselor of state, T. M. C. Asser; Mr. Herbert H. D. Peirce, Assistant Secretary of State, delegate of the United States; Mr. Komarow, delegate of Russia; Mr. Charles W. Clifford, American expert; Mr. Charles H. Townsend, of the “Department of Fisheries,” American expert; Captain Baker, American expert; Prof. Alexander Kroupsky, Russian expert, and Mr. Ed. Grunwaldt, Russian expert.

There are also present: L. L. E. E. Baron Melvil de Lynden, minister of foreign affairs; Mr. Stanford Newel, minister of the United States of America, and Mr. Ruyssenaers, secretary-general of the Permanent Court of Arbitration.

The arbitrator made the following address:

“Before proceeding to our work, permit me to express my sincere gratitude to the administrative counsel of the Permanent Court of Arbitration for the hospitality he has kindly extended to us in the palace, as well as to the honorable secretary-general and the first secretary of the court for the gracious manner in which they have executed the resolution of the counsel.

“I am happy that, thanks to that resolution, we are enabled to inaugurate the home of the court by the proceedings in a litigation between two great powers, one of which has for sovereign the august initiator of the peace conference, while the other was represented by eminent delegates, who took a conspicuous part in the preliminary work of the convention for the pacific settlement of the international differences.

“I hope that the institution of the court will contribute largely to the maintenance of peace.”

Mr. Asser proposes to designate as secretary Mr. W. Roëll, first secretary of the international bureau of the Permanent Court of Arbitration.

Mr. Asser says that the French language is recognized as the official language of the arbitration. English will be optional for the experts.

The arbitrator states that he has arrived at no decision. The questions must not be regarded as indicating any opinion of the arbitrator. They simply serve for the more complete clearing up of some points by the representatives of the parties and their experts. It is necessary that technical data should not be lacking, after which the difference will have to be examined from a legal point of view.

The arbitrator wishes, before proceeding to the examination of the four cases under discussion, to touch upon the three points of law following:

I. The treaty of 1897 between the United States of America and Russia, establishing a line of demarcation in Bering Sea and cited in the first counter memorandum of the defendant party.

II. (a) Russia’s motives for refusing to accept England’s proposition tending to the interdiction of Russian subjects from sealing during one year outside the limits of the line of demarcation fixed by that agreement.

(b) The significance given by the Imperial Government to the expression “western part of Bering Sea,” for which Russia took special measures by sending a warship to those parts.

III. Point of view of the American Government when making the seizures mentioned in the counter memorandum.

The floor is given to the delegate of Russia to furnish explanations on the subject of Questions I and II, which are treated together.

Mr. Komarow expresses himself in the following terms:

“In addressing you within these walls I can, as a Russian, but say how happy I am in the hospitality which the administrative counsel of the International Court of Arbitration has extended to us in our labors. The Imperial Government in its reply to the summons which was addressed to it by Mr. Asser has already given expression to its gratitude, for the decision arrived at by the administrative counsel in placing its home and its organization at the disposal of the arbitrator and of the litigants. Thus, for the first time, explanations will be made here by the delegates and experts of the two Governments which have had recourse to this most salutary mode of adjusting differences between states, that of arbitration, the rulings of which constituted one of the most important labors of the peace conference. We find ourselves under the auspices of the Government of the Netherlands which made the great work particularly its own by its notable participation in the labors which so happily terminated the united efforts of all the countries of the civilized world. The arbitrator who is at present called upon to decide the questions pending between the United States and Russia is one of the shining lights of judicial science in the Netherlands. It is therefore an homage which I earnestly address to Holland in the persons of the eminent men who are here present, and chiefly to his excellency the minister of foreign affairs.

The work of the peace conference is especially dear to Russia’s heart. The Russian Government is one of those which believes firmly in the efficacy of arbitration for the solution of international differences. It has given striking proof of this by submitting to this jurisdiction its difference with a friendly power, the United States, in the affair of the seizure and detention of American vessels in Bering Sea. It is well known in Russia that arbitration is the highest source of international justice. It is that justice which may be expected to result from the exchange of explanations. The Russian Government is ready for its part to contribute all the light desired to illuminate the points not yet sufficiently elucidated. For the entire collection of questions treated in the written communications exchanged between the parties, there have been brought here on the part of Russia new enlightenment. It will remain for the arbitrator to decide the moment when he shall judge that the matter is clear, and that an end should be put to the perhaps necessary oral amplification of a case in which moreover during many years a solidarity of interests and views have been maintained between the Russian and American Governments.”

The delegate of the United States reserves the privilege of replying on another day.

Mr. Komarow produces the text of the treaty of 1867 between Russia and the United States concerning the cession of the territory of Alaska.

Beginning with the examination of point IIa of the list of questions of law asked by the arbitrator, Mr. Komarow states that Russia was not in a position to itself join in the agreement concluded in 1891 between the United States and England with regard to the interdiction of sealing in Bering Sea during one year. To explain the motives for Russia’s refusal the delegate of the Russian Government thinks it proper to briefly review the diplomatic negotiations which had been carried on between Russia, the United States, and England, since 1887, on the subject of the protection of seals; to that effect it will be necessary to produce certain documents:

Mr. Morier to Mr, De Giers, St. Petersburg, May 29 (June 10), 1891.

Mr. Howard to Mr. De Giers, St. Petersburg, May 23 (June 4), 1891.

Mr. Morier to Mr. De Giers, St. Petersburg, July 10 (22), 1891.

Mr. De Staal to Mr. De Giers, London, April 23 (May 5) 1891.

Note from Mr. De Giers to Mr. Morier, St. Petersburg, June 11, 1901.

Mr. Peirce maintained that it is not permissible to produce new documents, the evidence in the case having been set forth in the memorandum, the counter memorandum, the rejoinder of the United States Government, and the surrejoinder of the Russian Government.

Mr. Komarow submits that the rules of the procedure in the arbitration do not prescribe when documents may be produced. The arbitrator having asked for supplementary information to be given verbally, the verbal explanations may be accompanied by documentary evidence as well as if the information were furnished in writing.

The Arbitrator decides that the delegate of the Russian Government may be free to give his statement of the case the form which he deems necessary.

Mr. Komarow makes a brief historical review of the negotiations relating to the protection of seals since 1887. These negotiations had had for starting point a note from the chargé d’affaires of the United States at St. Petersburg to the Secretary of State De Giers August 22, 1887, and by which the Russian Government was invited to enter into an agreement for the regulation of sealing in Bering Sea and to put an end to the practices of extermination which threatened to drain at its very source an important branch of industry. On November 27, 1887, the Russian Government expressed its adherence to that proposition for agreement, but as it was necessary to assure itself of England’s concurrence in the projected work the United States legation at St. Petersburg, in a note of January 21, 1888, informed the Russian Government that the same steps had been taken with the British Government by expressing the hope that these steps would be supported by the Imperial cabinet, “whose interests in this matter are entirely analogous with those of the Cabinet of Washington.” That solidarity of Russo-American interests which have not ceased to be proclaimed by both sides in the course of the negotiations was affirmed from the very beginning by sending to the Russian ambassador at London the instructions in the sense asked for by the United States.

Differing with regard to the nature of the measures successively suggested for arriving at the proposed end, the agreement between the two Governments remains firm on certain points. One of the most important of these is that which was formulated by Mr. Bayard to the chargé d’affaires of Russia at Washington and which the latter set forth in his dispatch of July 19 (31), 1888.

Mr. Bayard expressed himself as follows:

We occupy the same premises (we are in the same boat to certain extent), having to combat the same evil in the Territory of Alaska, and we encounter the same difficulties. However, the right of every sovereign power to provide for the security and inviolability of its territory by all means of prevention and of suppression in its power is unlimited and incontestable.

The negotiations with England did not end, however, in that first phase of the question, and the two Governments—Russian and American—always considering themselves as closely united with regard to the end to be attained, took on their side measures which they judged incumbent upon them at the moment. It is thus that the proclamation of the President of the United States of March 21, 1889, was published, which is reproduced in the surrejoinder of the defendant party. The Russian Government was, for its part, engaged in the reorganization of the sealing industry and the preservative measures to be taken. The two Governments did not, however, neglect to study how to deal with England, and it is thus the document known as the Blaine memorial was drawn up in 1889, which was to constitute a formal demand to be made by the two combined cabinets. That document, which the two joint cabinets did not finally send to the British Government, was published in the collection of diplomatic documents at the time.

The British Government then showed itself disposed to resume the negotiations at Washington, but without attaining appreciable results in the practical form of an understanding between the three cabinets. The Cabinet of Washington, which independently of the general questions involved in the matter, had yet to treat with England on the solution of the affairs of the seizures of English vessels by American vessels in Bering Sea, concluded with the British Government the agreement of June 15, 1891, with regard to all of these litigations, which was called “Agreement for a modus vivendi between the United States and Great Britain relating to the fur-seal fisheries in Bering Sea.”

To reply to the question asked by the arbitrator on the subject of the motives and the nonadherence of Russia to the Anglo-American agreement of 1891, Mr. Komarow reads the following documents:

1. Dispatch from Mr. De Staal, ambassador of Russia at London, of April 23 (May 5), 1891.

2. Note from Sir H. Howard, chargé d’affaires of England at St. Petersburg, of May 23 (June 4), 1891.

3. Note from Sir R. Morier, British ambassador to St. Petersburg, of May 29 (June 10), 1891.

4. Dispatch from Mr. De Staal of June 12 (24), 1891.

5. Note from Mr. De Giers to Sir R. Morier of June 4, 1891, No. 2110.

6. Note from Sir R. Morier of July 10 (22), 1891.

Mr. Peirce said that he would take cognizance of these notes, reserving the right to object to their being submitted to the arbitrator for his consideration.

Mr. Komarow then said from all of these documents it is evident that Russia, invited by England to participate in the Anglo-American agreement of 1891, deemed it necessary that the interdiction of sealing in the western part of Bering Sea be applicable to subjects of the three States as in the eastern part.

The impossibility, alleged in the note of Sir Robert Morier of July 10 (22), 1891, for the Government of the United States to enact soon enough a prohibition to its citizens to seal in the western part of the Bering Sea rendered illusory the measures which the cabinets of London and St. Petersburg proposed to take with regard to their subjects. Sir Robert Morier concluded by declaring that under these conditions the agreement would not be desirable.

Mr. Komarow stated that in spite of Russia’s nonadherence to the Anglo-American agreement of 1891, the general agreement on the subject of the protection of seals between the cabinets of St. Petersburg and Washington remains quite within the limits maintained in the course of the negotiations, notably with regard to the sending of cruisers for the suppression of poaching and the right of the interested States to take such measures of preservation as they deemed necessary over an expanse so vast and so difficult to efficaciously protect. Russia, moreover, has always maintained for its part that certain of these industries were entitled to special privileges. That doctrine is notably affirmed in the note of Mr. De Giers of May 28, 1892. (See memorandum of the party claimant.

It is known that in certain countries the coast industries are the object of special protection as regards the extent of jurisdiction. A list of these industries is to be found in volume 10 of the Proceedings of the Tribunal of Arbitration of Paris in 1893.

Mr. Peirce says that opinions set forth in the arbitration of Paris can not serve as evidence.

Mr. Komarow (continuing) says that as it was stated in the surrejoinder of the defendant party that the Russian Government considered itself justified in enacting, in 1893, after the decision rendered by the Kapoustine commission, the measures which it deemed necessary for the protection of seals, it enacted these measures unilaterally, and contented itself with imparting them to the British Government.

The Anglo-Russian agreement of 1893, subsequent to the measure in question, did not create Russia’s right to that special jurisdiction; it only established the fact of England’s recognition of that preexistent right. It was the same with the agreement of 1894 with the United States of America.

This point of view of the Russian Government was sustained, moreover, by the United States before the tribunal of Paris. (Acts of the Tribunal of Paris, Vol. XV, pp. 112 and following.) The American delegate, Mr. Phelps, stated that Russia had simply notified England of the decisions of the Kapoustine commission fixing the right of jurisdiction of Russia.

Mr. Peirce, delegate of the United States, had the floor to reply to the question as to the line of demarcation. The American Government, he said, accepted the property which Russia sold to the United States, with the line of demarcation established by the treaty of 1867 and interpreted the line of demarcation of the treaty of 1837 as attributing to it a property right over the eastern part of Bering Sea, consequently a special jurisdiction. The award of the tribunal of Paris of 1893 did not recognize this right of the United States. According to the award of 1893 it does not own the waters of that part of Bering Sea situated to the east of the line cited, which the American Government believed it had acquired.

It must again be stated that the United States and Russia are in arbitration on the same question. The United States have paid; they now exact that Russia pay for the vessels seized.

The arbitrator, Mr. T. M. C. Asser, then invited Mr. Komarow to explain himself as to the Question II (b), with regard to the significance given by the Imperial Government to the expression “Western part of Bering Sea” for which that Government took special measures by sending vessels to those parts.

Mr. Komarow stated that after the conclusion of the treaty of 1867 between Russia and the United States of America the Russian Government did not claim the right of jurisdiction over the whole of the western part of Bering Sea. By the western part of Bering Sea must be understood the extent of that sea which is situated to the west of the line of demarcation of 1867. The line of demarcation according to the interpretation of the Russian Government did not imply a property right over all of the respective maritime extents, but it meant that all the land—that is to say, the islands and dependencies with the adjacent waters, situated in one or the other part of Bering Sea—belonged, respectively, to Russia and America. At that epoch certain islets may have been ignored or, perhaps, no precise names had been attributed to them. For this reason, in order to simplify matters, in 1867 a general designation had been employed.

Mr. Peirce accepted this explanation.

Mr. Komarow stated that he did not intend to enter into the discussions formerly raised before tribunals of arbitration on the subject of the ukases of Emperor Paul in 1799, and of Emperor Alexander I of 1821, as also of the treaties of 1824 and 1825, concluded by Russia with England and the United States. Assuredly, therefore, until 1867—that is to say, so long as Russia possessed all of the extent of coast bordered by Bering Sea and adjacent waters it exercised its right of protection over the maritime industries dependent upon that region. But with regard to sovereignty, Russia has riot claimed it over the western part of Bering Sea as the United States have claimed it over the eastern part.

Mr. Peirce stated that the question of jurisdiction in Bering Sea has been settled by the award of the tribunal of Paris, and thus the American point of view with regard to the seizure of vessels is taken in the light of that decision.

Mr. Komarow set forth that Russia was not participant in the arbitration of 1893, and that consequently it is not affected by that decision, insomuch as it may affect the relations between the United States and England. As for the seizures of American vessels by Russian cruisers, Mr. Komarow believes they should be considered from the standpoint of the situation at the time—that is to say, of the actual situation and of the situation created by the agreements between the Russian and American Governments and by the doctrine superior even to those agreements, sustained by the United States against England. When one sets up a claim against a party, that claim should be considered binding on him who invokes it.

Mr. Komarow futhermore stated that before the tribunal of arbitration of Paris, the American delegate, Mr. Phelps, official agent of his Government interrogated at different times on the subject of how the Cabinet of Washington regarded the seizures of English and American vessels already accomplished (1893) by Russian vessels, replied to the arbitrator that these seizures had been perfectly regular. (Proceedings of the Tribunal of Arbitration of Paris, Vol. XII, 42, 415.)

Passing to the question 3 of the programme, the arbitrator asks Mr. Peirce to express himself on the subject of the seizures made by the United States Government before 1893.

Mr. Peirce answered that the Government of the United States then believed itself to be justified in making the seizures, but that point of view has changed since then, because then they were ignorant as to the extent of the property they had acquired by virtue of the treaty of 1867.

Mr. Asser asked Mr. Peirce if the United States are now convinced that they were wrong in making the seizures mentioned in the counter memorandum and what is the extent of jurisdiction which the United States claim to-day in Bering Sea.

Mr. Peirce answers affirmatively: At that time we did not know the limits of the property. The jurisdiction which the American Government now claims is an extent of 3 miles.

Mr. Komarow stated that in any event the United States in fact have jurisdiction over 60 miles, which was sanctioned by the Anglo-American agreement and granted by the award of the Tribunal of Paris.

Mr. Peirce protested against the application of a later special convention between Great Britain and the United States. That convention has no bearing upon the present arbitration. The 60 miles relate only to the “modus vivendi” between the United States of America and England. The Arbitrator made a remark relating to the number of the crew of the Cape Horn Pigeon. According to the memorandum they numbered 30, besides the captain, and according to the ship’s roll, which is annexed to the memorandum, they numbered 42.

Mr. Clifford, expert, says it is always necessary to take more sailors, on account of accidents and deserters. Indemnity was asked for 31 men, yet 3 men must be deducted (the captain and 2 men having been taken aboard the Russian vessel); for 8 officers at $10 during six days ($480), and for 20 men at $5 during six days ($600); for the 28 men ($1,080).

The Arbitrator proposed to first question the Russian experts.

Mr. Komarow gives the following information on the subject of whaling. (See Annex A.)

The session then adjourned to to-morrow, Saturday morning, at 10 o’clock.