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

AFFAIR OF THE “C. H. WHITE.”

The undersigned, Tobie Michel Charles Asser, member of the council of state of the Netherlands, exercising the functions of arbitrator, which he has had the honor to have conferred upon him by the Government of the United States of America and the Imperial Government of Russia, to decide as to the differences relating to the affair of the schooner C. H. White;

Whereas, by virtue of the declarations exchanged at St. Petersburg, August 26 (September 8), 1900, between the aforesaid two Governments, the arbitrator must take cognizance of the claims for indemnity for the seizure and detention of certain American vessels by Russian cruisers, brought against the Imperial Russian Government by the Government of the United States of America, in the name of the parties in interest;

That according to these declarations the arbitrator, following in his award the general principles of international law and the spirit of international agreements applicable to the subject, shall decide with regard to each claim filed against the Imperial Russian Government whether it is well founded; and if in the affirmative, whether the facts upon which it is based are proved;

That furthermore it is recognized that this stipulation shall have no retroactive force, and that the arbitrator shall apply to the cases in litigation the principles of international law and of international treaties which were in force and binding upon the parties engaged in this litigation at the time the seizure of the vessels took place;

That finally the arbitrator shall fix the sum of the indemnity which may eventually be due from the Russian Government on account of the claims presented by the parties in interest;

Whereas, after a minute examination of the memoranda and counter memoranda exchanged between the high contracting parties, as well as of all the exhibits of each side, the arbitrator, availing himself of the right accorded him by said declarations of St. Petersburg, invited the two Governments to name commercial experts to aid him in fixing the amount of indemnity which would eventually be due, and in addressing himself to that effect to the high contracting parties the arbitrator at the same time requested them to furnish supplementary information regarding the points of law indicated by him;

Whereas, in the sittings held by the arbitrator at The Hague, in the hall of Permanent Court of Arbitration, from the 27th June to the 4th July, 1902, he heard the depositions of experts in the presence of the agents of the two high contracting parties, who on that occasion furnished the supplementary information asked for by the arbitrator;

Whereas, in support of the claim relative to the seizure and confiscation of the schooner C. H. White, the party claimant alleged the following facts:

The said schooner having set sail from San Francisco on May 7, 1892, on a hunting and fishing expedition in the North Pacific Ocean or elsewhere, with Lawrence M. Furman as captain, was, on the 12th July, 1892, about 40 miles south of the Agatha Island, one of the Aleutian Islands, and about the same day the captain set sail for the Kuriles Islands with the intention of fishing some distance off the coast. The captain deviated from his course toward the Kuriles Islands in the direction of Copper Island or Bering Island, to regulate his chronometer. The 15th July, 1892, the vessel having reached latitude 54° 18’ north and longitude 167° 19’ east (it is evidently by mistake that in certain places in the memorandum of the party claimant longitude 167° 19’ west is given) was overhauled by the Russian man-of-war Zabiaka, and the captain of the C. H. White was ordered to come aboard the Russian cruiser with all of his ship’s papers; the commander of the cruiser having examined his papers, arrested the captain of the schooner and transferred him with all of his crew, except the first mate, aboard the cruiser as prisoners; the captain was put under surveillance. The schooner (with her cargo consisting of 20 seal skins, 8 casks of mackerel, and ton of codfish) was seized and towed as far as the bay of Nicolsky (Bering Island), whence it was taken to Petropavlovsk; later it was confiscated and appropriated to the use of the Imperial Russian Government. The captain and crew of the schooner were transported as prisoners to Petropavlovsk, where they arrived on July 20, 1892. On the 8th August, of the same year, the crew was conducted aboard the American ship Majestic to be returned to their country. The captain and members of the crew claimed to have suffered greatly from ill treatment inflicted upon them during their imprisonment; besides the captain, the first mate, Andrew Ronning, and the fisherman, Neils Wolfgang, claimed to have lost personal belongings which were not restored to them.

Whereas the damage claimed by the party claimant in the name of the parties in interest, on the counts mentioned, amount to the sum of $150,720 with interest at 6 per cent per annum;

Whereas the defendant party, replying to the allegations of the party claimant, maintains that the seizure of the C. H. White took place not in 54° 18’ but in 54° 10’ latitude north, or at a distance of only about 23 miles from the nearest Russian coast; that moreover from a series of circumstances set forth by the defendant party there resulted the presumption that the C. H. White might have been guilty of illegal sealing in Russian territorial waters;

That therefore the agents of the Imperial Government were justified in pursuing the schooner even beyond those waters, and in seizing and confiscating her with her cargo;

That the defendant party sets up against the complaint of the crew regarding the ill treatment they were subjected to an energetic denial, by setting forth that the harsh treatment of which they complain was but the unavoidable consequence of local conditions of the place to which the crew were transported, and that finally the fact that property belonging to the captain and two other persons was hot returned to them is not sufficiently proved:

Whereas the defendant party, basing its case upon these allegations and incidentally contesting the amount of the claim, requested that the claims of the party claimant be rejected;

Whereas the honorable agent of the party claimant, Mr. Herbert H. D. Peirce, made at the sitting of July 4, 1902, in the name of the Government of the United States of America, the following declarations:

Declaration made to the honorable arbitrator, Mr. T. M. C. Asser, July 4, 1902, by the party claimant in the arbitration between the united states and Russia in reply to the question asked by the arbitrator relative to the extent of jurisdiction claimed by the united states over the bordering waters of the Bering sea.

The delegate of the United States makes this declaration under the specific authority received by him from the Secretary of State of the United States on July 3, 1902, to wit:

The Government of the United States claims neither in Bering Sea nor in the other bordering waters an extent of jurisdiction greater than a marine league from its shores, but bases its claims to such jurisdiction upon the following principle:

The Government of the United States claims and admits the jurisdiction of any State over its territorial waters only to the extent of a marine league unless a different rule is fixed by treaty between two States; even then the treaty States are alone affected by the agreement.

Considering that the arbitrator must decide:

I. Whether the seizure and confiscation of the schooner C. H. White, and of her cargo, as well as the imprisonment of the crew, shall be considered as illegal acts;

II. If in the affirmative, what amount of indemnity is due from the defendant party?

I. (a) Considering that this question must be decided according to the general principles of international law and of the spirit of international agreements in force and binding upon the high contracting parties at the time of the seizure of the vessel;

That at that time there did not exist any agreement between the two parties, containing in the special matter of sealing any derogation of the general principles of international law with regard to the extent of territorial seas;

That the defendant party sets up that in the litigation between the United States of America and Great Britain before the tribunal of arbitration, established by virtue of the treaty concluded at Washington, February 29, 1892, the Government of the United States recognized with regard to the right of jurisdiction in Bering Sea in connection with the British Government, claims which extended to limits far exceeding those which are admitted by the general principles of international law; that these claims were prompted by the interest in the preservation of the seals, and the suppression of illegal sealing, and that while the Government of the United States of America submitted loyally to the decision of the Arbitration Tribunal of 1893, which did not adopt its system, that system nevertheless may be used to oppose the claim of that Government in the present litigation.

Considering that whatever be the value of the system in question as basis of an agreement between the interested States, it could not be compulsory without such an agreement, even for a Government which had on another occasion pleaded it, though unsuccessfully, before a tribunal of arbitration;

Considering that the agreement which was entered into between the parties after the date of the seizure and confiscation of the C. H. White could not modify the consequences resulting from the general principles of law recognized at the time of these acts;

Considering that the seizure of the schooner took place, according to the party claimant at about 20, and according to the defendant party about 11 or 12, miles from Russian territory, and that even if the latter version be the true one, it results that the act was perpetrated outside the Russian territorial waters, which is moreover admitted by both parties;

Considering that the system of the defendant party, according to which a war ship of a State would be permitted to pursue even beyond the territorial sea any vessel whose crew was guilty of an illegal act in territorial waters or on territory of that State, could not be recognized as conforming to the principles of international law, since the jurisdiction of a State does not extend beyond the limits of the territorial sea, unless that rule has been derogated by a special convention;

Considering that it is not necessary to examine if the presumptions alleged by the defendant party be sufficiently grave to cause the admission that the crew of the C. H. White were guilty of illegal sealing in Russian territorial waters;

Considering that the seizure and confiscation of the C. H. White and her cargo, as well as the imprisonment of her crew, should therefore be considered as illegal acts, it remains but to fix the amount of indemnity due by the defendant party on account of these acts.

II. Considering that the party claimant claims in the first place $35,000 for the confiscation of the vessel, but that that claim is exaggerated; that based upon the figures which are found in the American publications, such as the reports of the fur-seal investigation, sent to the arbitrator by the party claimant (Part III, p. 228), and more particularly on the value specified for vessels having the same or greater tonnage than the C. H. White, there could not be attributed to this schooner, with her boats, her equipment, and her provisions, a value exceeding $10,000;

Considering that the party claimant claims for the cargo confiscated with the vessel the following: (a) for the 20 seal skins, a sum of $14 each, being a total of $280; but that from a minute examination of the several documents produced, as well as the depositions of experts, it appears that the price per skin is not more than $12, which gives a total of $240 for the 20 skins; (b) for 8 casks of mackerel, $160, and for a hogshead of codfish, $260; but that the defendant party, having maintained that the value of the 8 casks of mackerel could not exceed the sum of $80, and that of the hogshead of codfish the sum of $124, the party claimant reduced the claim for that part of the cargo to a sum of $204, which, with the $240 for the 20 seal skins, makes a total of $444;

Considering that the party claimant claims (a) $34,720 for loss of probable catch of 2,480 seals at $14, and (b) $10,300 for loss of probable catch of fish;

Considering that while admitting the principle that the loss of catch for the portion of the season still remaining after the seizure of the vessel can be claimed as an element of damages, the amounts claimed are not justified and appear very much exaggerated;

Considering (a) that from the statistics produced in the litigation it may be admitted that the product of the sealing after the day of seizure of the vessel would certainly not have exceeded the number of 1,000 seals, which, at the rate of $12 per skin, gives a total of $12,000;

(b) That for the loss of probable catch of fish, a sum of $1,000 seems a sufficient indemnity;

Considering with regard to the personal claims of Captain Furman ($25,000), of Andrew Ronning ($15,000), and of Neils Wolfgang ($10,000), for the loss of their property, for their imprisonment, outrages, and privations, that the loss of personal property is not proved—the declarations of the interested parties alone can not be admitted as sufficient evidence; that the defendant party energetically denies that it had any intention of inflicting inhuman treatment upon the captain or crew of the schooner, adding that if their lodgings and their food were insufficient this may be explained by the insufficiency of local resources;

Considering that this explanation does not suffice to excuse the defendant party from the responsibility, since, being responsible for the imprisonment, it is also responsible for the consequences of that illegal act;

That although the amount of indemnity claimed on that head is exaggerated and should be reduced, for Captain Furman to $3,000, for Andrew Ronning to $2,000, for Neils Wolfgang to $1,000;

Considering that the claim of the crew for their imprisonment may be admitted as amounting to $300 per person, being $3,000 for the ten members of the crew;

That, consequently, the total of indemnity due from the defendant party to the party claimant on account of the seizure and confiscation of the C. H. White, reaches $32,444;

Considering that the defendant party agrees to add interest at 6 per cent per annum to the sums which it must pay; since indemnity is granted for the loss of the catch during the remainder of the season of 1892, it is just that the interest should not begin to accrue until the 1st January, 1893;

Therefore, the arbitrator decides and pronounces the following:

The defendant party will pay to the party claimant on account of the claims presented by the parties in interest in the affair of the C. H. White the sum of $32,444 in United States money, with interest on that sum at 6 per cent per annum, from the 1st of January, 1893, to the time of full payment.

Done at The Hague, November 29, 1902.

T. M. C. Asser.