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
No. 5883.—United States of America.
department of state.
To all to whom these presents shall come, greeting:
I certify that the documents hereto annexed are true copies from the files of this Department.
In testimony whereof I, John Hay, Secretary of State of the United States, have hereunto subscribed my name and caused the seal of the Department of State to be affixed.
[seal.]
United States of America.
To the Secretary of State:
On behalf of the owners, master, and crew of the American schooner James Hamilton Lewis, which was illegally seized by the Russian man-of-war Aleut, while on the high seas, August 2, 1891, we have the honor to submit to the Secretary of State a history of the facts and circumstances attending said seizure, and to invoke the intervention of the Government of the United States, with a view of obtaining from the Russian Government just compensation and damages on account of the seizure of said vessel and the imprisonment and maltreatment of its master and crew by the Imperial authorities.
I.—The voyage.
The schooner James Hamilton Lewis was an American vessel, owned by citizens of the United States, and carried the flag of the United States. She sailed from San Francisco, Cal., March 7, 1891, with her clearance and ship’s papers in proper and [Page 169] lawful form, with a full complement of officers and men, destined for a cruise in the North Pacific Ocean on a fishing and hunting expedition, with Alexander McLean as master, Joseph McDonald as mate, 1 second mate, 1 cook, 1 cabin boy, 6 hunters, and 14 able-bodied seamen, well and sufficiently manned, victualed, and furnished with all things necessary for a vessel in the merchant service, and particularly for the voyage she was about to undertake.
Proceeding on her voyage, she arrived at Sand Point, Alaska, June 27, 1891, where she cast anchor and took in fresh water and supplies. On the following day she proceeded on her voyage.
On July 4, 1891, she reached latitude 52° 30’ north, longitude 165° west; July 9, latitude 50° W north, longitude 175° west; July 13, latitude 51° W north, longitude 170° east; July 20, latitude 51° 35’ north, longitude 179° 10’ east; July 25, latitude 50° 15’ north, longitude 170° 20’ east; July 28, latitude 50° 20’ north, longitude 170° 20’ east; July 30, latitude 52° 40’ north, longitude 169° 20’ east; July 31, latitude 53° 10’ north, longitude 169° east; August 1, latitude 54° north, longitude 168° 10’ east; August 2, latitude 55° 35’ north, longitude 169° 20’ east, where she was seized, at 6 o’clock in the morning, by the Russian war ship Aleut, being then about 20 miles distant from and to the east of Copper Island, the nearest land.
The position of the schooner on the above days is verified by her log book and ship’s journal, and attested by her officers and crew. By this record we can trace the course of the vessel from the time of her departure to her seizure, and can establish the correctness of the delineation of her voyage by the testimony of the ship’s entire company.
On examination of the route laid down in the log book it will be seen that the schooner did not enter Russian waters until August 1, 1891, and that she was seized at 6 o’clock on the following morning.
Annexed to this paper is a copy of the schooner’s ship’s journal, and a map designed to illustrate her cruise, which exhibits are to be taken as parts of this communication.
II.—The seizure.
On August 2, 1891, the schooner having crossed into Russian waters the day before, being then east of the sea boundary line, and within 20 miles of Copper Island, having decided on his return voyage to San Francisco, the captain deemed it necessary to make the land in order to test his chronometer. For this purpose he altered his course, standing toward the land lying to the westward. He had taken no seals since crossing the line that divides Russian and American waters; he had taken none within the limits of Bering Sea. He had not touched land since he left Sand Point, Alaska, on June 27. The seal skins on board the schooner showed that they had been taken from seals shot in the water, and that they had been taken more than forty hours before the seizure. All this is attested by the captain, the mates, and the crew.
At 6 o’clock in the morning of August 2, 1891, the schooner was brought to by a shot from the Russian war ship Aleut. She immediately hoisted the United States flag, and awaited the approach of a boat from the Russian vessel. On its arrival a Russian officer came on deck and demanded the schooner’s log book, which was given to him by Captain McLean. The officer was also furnished with the ship’s papers, issued by the customs officers in San Francisco in accordance with the laws of the United States. The officer then proceeded to search the vessel. Having completed his search, he returned to the man-of-war, carrying with him the log book of the schooner, which he refused to give up, and ordering the schooner to follow the war ship and await his return.
The officer returned soon after, with an armed crew, and ordered Captain McLean to leave his vessel and go aboard the Aleut with his ship’s company, except 7, who were to remain on the schooner. This command the master refused to obey, for the avowed and true reason that he had violated no law or regulation, and was not subject to the orders of Russian officials. Thereupon he put his vessel on her course, steering east.
The boat and armed crew returned to the man-of-war, which immediately began maneuvering and fired four or five shots. Suddenly she crossed the schooner’s bow from starboard to port; returning, she crossed bow of the schooner from port to starboard, obviously intending to run her down. In order to avoid a collision, the captain ordered the man at the wheel to starboard to helm, but the man-of-war had approached so near that it was impossible to get clear of her, and in the collision which followed the schooner’s head gear was carried away. The vessels now being close together, the man-of-war made lines fast to the schooner’s rigging. As the [Page 170] schooner was being dashed against the war ship and in danger of serious damage, the mate was ordered to cut the lines that held the vessels. This he attempted to do, but the decks of the schooner were immediately crowded with armed men who took possession of the vessel. Captain McLean and his men were then taken on board the Aleut, where he was informed by her commander that he was a prisoner and that the schooner and cargo were confiscated. He was surrounded by guards. When he inquired why his vessel was seized, he was told by the Russian commander that he was in Russian waters.
The captain of the schooner then entered his protest, claiming that the seizure of the vessel and cargo and the arrest of the master and crew of the schooner were illegal; that they were in neutral waters—on the high seas—and not within 20 miles of land; that neither the captain nor any of the ship’s men had touched land since they left Sand Point, Alaska, on June 28, 1891; that all the seals on board had been taken in the water on the high seas and killed with shotguns, as the skins on board would show, and that no skins had been taken within forty hours of the seizure.
III. Events following the seizure.
At the time of said seizure the American flag was flying at the masthead of said schooner, but shortly afterwards it was hauled down by the crew of the Russian vessel, torn into shreds, thrown on the deck, and trampled upon; and certain of the crew of said schooner picked up pieces of said flag, and now hold the same as mementoes of the insult offered to this great nation. The Russian flag afterwards floated at the masthead of said schooner.
On August 3, 1891, said schooner and her crew were taken to Bering Island. While at said island the Russians took from her 424 seal skins, and subsequently delivered them to the company holding the Russian lease. Said Russians also took from said schooner a large quantity of stores and provisions, which were transferred to the Aleut and used thereon.
Said vessel and crew were then taken to Petropavlovski, at which place the Russians took five of her boats and sold them. They also took the guns, stores, and provisions of said schooner.
On or about August 8, 1891, the commander of the Aleut prepared a paper in the Russian language and directed the master of said schooner to sign the same, explaining that the paper aforesaid was merely a notice of seizure. Said master protested against this, but, on further insistence by said commander, he signed the same and immediately filed a protest against any seizure of said schooner, said master being under duress at the time of said signing. This protest was handed to the commander aforesaid and attached to said notice of seizure, but no copy of this alleged notice was ever given to the master or crew of said schooner. Subsequently, the schooner and crew were taken to Vladivostock.
The master and crew of said schooner were treated as prisoners from the date of said seizure; but at the last-mentioned place they were allowed to go ashore, but were told that they were under arrest and ordered to report at police headquarters every day. Said master was also compelled to sign a document which the Russian authorities claimed required him not to leave port until further orders, but of the contents of which said master is entirely ignorant, having signed the same under duress.
During all this time no trial had been allowed said schooner, master, or crew. They were told by the Russian authorities that they were to have a trial in accordance with the forms of law, but after frequent requests in this behalf said authorities told said master that there was no necessity for such a course; and on or about October 10, 1891, the authorities aforesaid informed him and his crew that they were at liberty to leave. The master had been repeatedly informed while at Vladivostock that he could gain his liberty by withdrawing his protest; but this he invariably refused to do.
While at the last-mentioned place no quarters on board was furnished the master or crew of said schooner; but shortly after their arrival the master and mate were allowed 27 cents and the members of the crew 7½ cents per day. On this they could not subsist, and they were compelled to sell a few of the clothes they had on their backs and to beg, having to sleep in an old jail overrun with vermin and breeding pestilence.
After his release aforesaid, the master of said vessel went to Nagasaki and thence to Yokohama, where he immediately filed with the American consul a protest against said seizure.
Up to the time of their arrival at Vladivostock the mate and crew of said schooner were compelled to work incessantly. No sleeping quarters or rations were furnished [Page 171] to them, they being entirely dependent on the charity of the crew of the Aleut for the necessaries of life.
Said master and crew not only lost their vessel and all the property they had on board, except a few necessary articles of wearing apparel, but in consequence of the harsh and barbarous treatment received by them at the hands of their captors during their imprisonment, they became and are now emaciated in form, depressed in spirit, undermined in constitution, and permanently injured in health.
Russia’s responsibility.
This case does not involve the question of mare clausum. The right of navigating the waters of Bering Sea by an American ship is assumed. The navigation of those waters on both sides of the boundary line is notoriously free to the merchant service of all nations.
This being so, it is not necessary to dispute or discuss any claims of Russia to the exclusive ownership of the west half of Bering Sea or to the extent of her dominion over its waters.
The right of the Imperial Government to prohibit foreign vessels from taking fur seals within her boundary line beyond the 3-mile limit in the adjudication of this case is not denied or questioned. On the other hand, if these claimants were engaged in killing seals in Russian waters it is conceded that their vessel would be liable to seizure, and, together with her cargo, apparel, and furniture, be liable to condemnation and confiscation by judgment of the proper court, in accordance with international law and the laws of all civilized States, and her officers and crew subjected to such penalties as said court might inflict according to law. But if it be true, as the evidence shows it is, that this vessel was quietly pursuing her voyage, and when 20 miles distant from the land, toward which she was sailing for a lawful purpose, was wantonly arrested, against the protest of her captain, and confiscated, together with her cargo and outfit, by a Russian war ship’s officer, it is very plain that the act was unauthorized and that the Russian Government is liable for the damage which the claimants have sustained by reason thereof.
Your petitioners allege that said seizure, confiscation, and imprisonment were illegal and in contravention of the treaties between the United States and Russia, and that they have valid indemnity claims on account thereof against the Russian Government for reasonable compensation and damages as follows:
| Value of vessel and outfit | $25,000 |
| 424 seal skins (ready for market), at $20 | 8,480 |
| Probable catch for balance of season, 2,000 skins | 40,000 |
| For the unlawful detention of master and crew, their bodily and mental sufferings, and the permanent injuries resulting therefrom (25 men, at $2,000 each) | 50,000 |
| Total | 122,480 |
Respectfully submitted.
Attorneys for Claimants.
State of California, City and County of San Fransisco, ss:
Alexander McLean, being first duly sworn, deposes and says that he is a resident of the city and county of San Francisco, State of California, is a male white citizen of the age of 21 years and upward; that he is a master mariner by profession, and was the late master of the schooner James Hamilton Lewis, and was such master of the said schooner at the time of the seizure of said schooner by the Russian war vessel Aleut on the 2d day of August, 1891; and further deposes that the last day that boats were lowered from said schooner for sealing purposes, previous to said seizure, was on July 30, 1891, and never had the boats of said schooner in the-water after that up to the time of said seizure; that he had made no attempt to seal on the morning of said 2d day of August; that the said schooner had never been closer to Copper Island during the entire season than she was at the time of said seizure; that there were 2 British vessels in sight and in about the same position as said schooner at the time of said seizure; that the last observation taken by said affiant was on the 30th day of July of said year, and that the weather was continuously thick from said 30th day of July until early on the morning of the 2d day of August, and that by reason of said thick weather he was obliged to determine his position by means of dead reckoning; that Copper Island was [Page 172] sighted about 4 o’clock on the morning of August 2, which he had been endeavoring to make in order to get his position. At about 6 o’clock a.m. a steamer hove in sight on the port quarter of said schooner, and soon afterwards came closer up. Said steamer, which proved to be the Russian man-of-war Aleut, fired a gun, and said affiant, concluding she wished to speak him, hove his vessel to and hoisted the American flag; that the Russian steamer thereupon lowered a boat and sent an officer and crew to board him; that said officer came on deck and demanded the official log of the schooner, which was given him; that it was not possible for said schooner, by her position the day before said seizure, to have been any nearer the said island than said schooner was at the time of said seizure; that said affiant stood no regular watch on board said schooner; that he went below to turn in on the night of August 1 at about 9. p.m., and went on deck on the morning of the 2d of August at about 4 a.m. That said affiant ordered the officers in charge of said schooner on the night of August 1 to steer north by east; that no seals were taken by said affiant during said season of 1891 in Bering Sea; that all seals that were taken by members of the crew of said sealer during said season were taken in the Pacific Ocean; that the last time that skins were salted down previous to the said seizure was on the evening of the 30th day of July, 1891; that no seals whatever came aboard said schooner subsequently to said 30th day of July; that no seals were thrown overboard after the said 30th day of July; that at the time said schooner was boarded by members of the crew of the Russian gunboat at the time of said seizure said schooner was flying the American flag at the masthead; that about twelve hours after the said schooner was boarded by members of the crew of said Russian man-of-war they hauled down the American flag, tore said flag in shreds, threw it on the deck, and trampled upon it; that certain members of the crew of said schooner afterwards picked up the pieces of said flag and now hold the remnants of said flag in their possession as a memento of the insult offered to the American flag; that the American flag was never hoisted on said schooner again, but the Russian flag was hoisted before entering port; that said schooner and her crew were taken to Bering Island on the 3d day of August, 1891; that Bering Island is merely a seal rookery and that there is no tribunal thereon; that at Bering Island the Russians took 424 seal skins from the said schooner and landed them, which seal skins were subsequently delivered to the company holding the Russian lease; that said Russians also took from said schooner a lot of stores and provisions and put them on said gunboat Aleut, and which were used on board of said Aleut; that subsequently said schooner was sent to Petropavlovsk; that said affiant was taken to said Petropavlovsk and was there at the time of the arrival of said schooner; that after the arrival of said schooner at said Petropavlovsk said Russians took from said schooner 5 boats and sold them; also took from said schooner her guns, stores, and provisions; that on or about the 8th day of August, 1891, the commander of the said Aleut made out a paper in the said Russian language which he asked affiant to sign, which affiant declined to do, the said commander explaining said paper to be a notice of seizure. Said commander further insisting that affiant should sign said paper affiant, against his will, signed the same and immediately thereafter filed a protest against any seizure of said schooner and handed said protest to said commander of said Aleut, which protest affiant believes commander attached to said notice of seizure; that no copy of said alleged notice was ever given or offered to affiant by the Russian authorities, or by anyone, or at all; that said schooner was subsequently sent to Vladavistock, and arrived there on or about the 28th day of September, 1891; that affiant did not go with said schooner to Vladavistock, but was ordered on board a man-of-war of the volunteer fleet and taken to Vladavistock, where he arrived on the 28th day of September, 1891; that affiant had been a prisoner from the days of the said seizure; that at Vladavistock affiant was allowed to go on shore, but was told he was under arrest and ordered to report at police headquarters every day, which affiant did; that affiant was further compelled to sign a document which the Russian authorities claimed was requiring said affiant not to leave port until further orders; that affiant never had a trial at any of the Russian ports, but was told by said authorities that he was to be tried; but after affiant had repeatedly requested a trial the authorities finally told him there was no necessity for a trial, and on or about the 10th day of October said authorities said to affiant and crew of said schooner that they could leave. Affiant was repeatedly told while at Vladavistock that if he would withdraw the said protest they would release him, which said affiant declined to do. That affiant believes that the object of said authorities in detaining him was in the hope that affiant would withdraw said protest in order that he might gain his liberty. That no quarters or board were furnished affiant nor the crew of said schooner while at Vladavistock; that each of the crew were given 50 kopecks (about 27 cents) a day while at Vladavistock, but the men could not live on that and were obliged to sell what clothes they could [Page 173] spare, and after that begged for the necessities of life; that immediately after affiant was released, together with the crew of said schooner, he left Vladavistpck and went to Nagasaki and from Nagasaki to Yokohama, at which last-named place, and immediately upon arrival, affiant filed with the American consul his protest against the seizure of said schooner, as aforesaid.
[seal.]
Commissioner, United States Circuit Court,
Northern District of California.
State of California, City and County of San Francisco, ss:
Alexander McLean, being duly sworn, deposes and says: That he has heard read the foregoing affidavit and knows the contents thereof; that the same is true of his own knowledge, except as to the matters therein stated on his information or belief, and that as to those matters he believes it to be true.
[seal.]
Commissioner, United States Circuit Court,
Northern District of California.
State of California, City and County of San Francisco, ss:
Joseph McDonald, being duly sworn, deposes and says: I have read the foregoing affidavit of Alexander McLean relative to the seizure of the schooner James Hamilton Lewis by the Russian war ship Aleut, and know that the facts stated in said affidavit are true; and further deposes and says that I was the mate of the said schooner James Hamilton Lewis at the time of her seizure on August 2, 1891; that I was taken from the schooner on board the man-of-war as just I stood, and two days later, upon our arrival at Bering Island, I was allowed to go with another man on board of the schooner to procure my clothing and effects, but upon going aboard the schooner found nothing there belonging to me of any value, everything having been taken from the schooner. I immediately reported to the Russian officer in charge of said schooner the fact of the loss of my property, and I was informed by him to make out a list of the articles missing, which I did, and handed the same to him, and he said that he would report to the captain of the Aleut. Immediately upon being taken aboard the man-of-war I was set to work at ship’s work and was compelled to make the crew of the Lewis work also. I was given no hammock or berth to sleep in. No rations were served out to me or the members of the crew of the Lewis, but we were obliged to eat the crew’s rations—what they could spare of it—no extra allowance being provided for us. The crew of the Aleut were all provided with hammocks, and I am positive there were extra hammocks on board the Aleut that could have been served out to us, I having seen them stowed below in the berth deck. We were treated with indignities generally, and not with the same consideration that the crew of the Aleut were treated. This treatment was kept up until our arrival at Vladavistock, at which port we were allowed to go ashore, and for the first two days no provision was made for us, and being without money, were obliged to dispose of what spare effects we had to obtain subsistence. After two days we were allowed by the authorities 50 kopecks (about 27 cents) per day. We were obliged to sleep on the floor of the police station or fire house until the time of our departure, which was about six weeks later. We left for Nagasaki on a Russian vessel, and were mixed in with a cargo of 300 Chinamen in the steerage.
Affiant further says that as a result of the ill-treatment while at Vladavistock I contracted the smallpox and suffered with it for three months and a half, the steward being also taken down with the same disease and died from the effects of the same. We arrived in San Francisco about the 21st of December, 1891, and was sent immediately to the quarantine station at Angel Island, in the harbor of San Francisco, and I was not released therefrom until about the 15th of March, 1892.
[seal.]
Commissioner, United States Circuit Court,
Northern District of California.
State of California, City and county of San Francisco, ss:
Albert Leslie Donaldson, being duly sworn, deposes and says: I have read the foregoing affidavits of Alexander McLean and Joseph McDonald, relative to the seizure of the schooner James Hamilton Lewis by the Russian war ship Aleut, and know that the facts stated in said affidavits are true.
I also was deprived of the greater part of my effects, including a gun for hunting seals, rubber boots, a lamb’s-wool coat, shaving outfit, etc. At Petropolauski we we were sent ashore and forced to live on 15 kopecks (about 7½ cents) per day, or go to work for the Government; not being able to live on 7½ cents a day we were obliged and forced to work, handling heavy timbers, loading lighters, scrubbing boots, and general all-round work aboard of a vessel, for which we received a sailor’s rations, and were allowed to sleep in an old house, which was used as a jail. My treatment from the time of leaving Petropolauski until my arrival at San Francisco was practically the same as related in the affidavit of Joseph McDonald. I was also held in quarantine at San Francisco from the time of my arrival, about the 21st day of December, 1891, until about the 5th day of January, 1892. My position aboard the schooner James Hamilton Lewis was that of officer and hunter.
[seal.]
Commissioner U. S. Circuit Court, Northern District of California.
State of California, City and county of San Francisco, ss:
Oren Simons and Andrew C. Simons, being first duly sworn, each for himself depose and say: That they have heard read the foregoing affidavits of Alexander McLean, Joseph McDonald, and Albert Leslie Donaldson relative to the seizure of the schooner James Hamilton Lewis by the Russian war ship Aleut, and know that the facts stated in said affidavits are true. We were both engaged as officers and hunters aboard the schooner Lewis at the time of the seizure. We lost the greater part of our clothing and effects, including 3 guns, gunsmith’s tools, etc., of the value of about $75, also an account book or wallet containing about $8. While at Bering Island we, together with the steward and 3 other sailors, were transferred to the schooner Lewis to help sail her to Petropolauski. After arriving there our experience afterwards was practically the same as related by McDonald and Donaldson in their affidavits. We also worked the vessel from Petropolauski to Vladavistock. While at Vladavistock we were obliged to sleep with Russian laborers on the floor, without bedding or clothing, and the place was infected with vermin and in an extremely filthy condition. We were quarantined with the rest of the crew upon our arrival at San Francisco by reason of the smallpox contracted by Mate McDonald and the steward, Frederick Grinsted, at Vladavistock, for about fourteen days. The steward died while in quarantine. While on the voyage from Bering Island to Vladavistock, in conversing with the Russian officer in command of the schooner, Captain Libideff, we were told by him that the schooner at the time of the seizure was 33 miles off Copper Island.
- Oren Simons.
- A. C. Simons.
[seal.]
Commissioner U. S. Circuit Court, Northern District of California.
State of California, City and county of San Francisco, ss:
Alexander McLean, Joseph McDonald, Albert Leslie Donaldson, Oren Simons, and Andrew C. Simons, each for himself and not one for the other, do solemnly swear that the facts set forth in the foregoing statement in reference to the seizure of the [Page 175] schooner James Hamilton Lewis by the Russian war ship Aleut on August 2, 1891, are true; that I was present on board said schooner and witnessed the events therein recited, and I know them to be true of my own knowledge.
- Alexander McLean.
- J. McDonald.
- A. L. Donaldson.
- Oren Simons.
- A. C. Simons.
[seal.]
Commissioner U. S. Circuit Court, Northern District of California.
State and Northern District of
California,
City and county of San
Francisco, ss:
I, L. S. B. Sawyer, clerk of the circuit court of the United States of America of the ninth judicial circuit, in and for the northern district of California, do hereby certify that J. S. Manley, who has signed the foregoing attestation, is a duly appointed qualified acting commissioner of the circuit court of the United States for the northern district of California; that said signatures are his genuine handwriting, and that all his official acts as such commissioner are entitled to full faith and credit.
[seal.]
Clerk U. S. Circuit Court, Northern District of California.