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

EXHIBIT H.

[Translation.]

No. 1999.]

Ministry for Foreign Affairs,
Asiatic Department, May 18, 1896.

Mr. Envoy: As I had the honor to inform the legation of the United States under date of October 12, 1895, the Imperial ministry did not fail to transmit in due time to the ministry of marine the documents relating to the claim presented by the owner, captain, and crew of the James Hamilton Lewis on account of the capture of that vessel by the Russian cruiser Aleut.

The Imperial ministry of marine has just sent us a memorandum on this subject, of which I make it my duty to send you herewith a copy. In acquainting yourself with this document you will kindly note that the said ministry finds that the complaints of the claimants are unfounded, and in consequence does not consider that there is room for further action.

Lobanow.

To Mr. Clifton R. Breckinridge,
Envoy, etc.

[Translation of a memorandum of the Imperial ministry of the marine on the subject of the capture of the American schooner James Hamilton Lewis.]

The petition of the owners, captain and crew of the schooner James Hamilton Lewis, captured by the Russian ship of war Aleut July 21 (August 2), 1891, a petition presented in November, 1893, by the advocates, Jeffries & Earl, of Washington, to the Secretary of State of the United States of America, containing an exposition of the facts relating to the said capture, which is considered to have been illegal, even asking the intervention of the Government of the United States with a view to obtaining from the Russian Government indemnity, both for the capture itself and for the arrest of the captain and crew of the schooner and for the bad treatment which they should prove on the part of the Imperial authorities.

The exposition of facts is divided into several heads, as follows: First, voyage of the vessel; second, the capture; third, facts after the capture. It is supported by the following documents, to which are annexed in copy to the petition addressed to the Secretary of State: 1. An act of protest of Alexander MacLeen, captain of the schooner James Hamilton Lewis, against the capture of that vessel; an act drawn up and delivered to MacLeen the 30th of November, 1891, by Mr. W. D. Tillodson, consul-general of the United States at Kanagawa (Japan). 2. The depositions on the subject of the captain, MacLeen, and of four men of the crew, made January 13, 1893, before the deputy of the court of the district of San Francisco. 3. The log book containing data of the voyage of the James Hamilton Lewis.

The petition above mentioned addressed to the Secretary of State of the United States includes among other things the following considerations, formulated by the advocates under the title of “Responsibility of Russia.” The present case does not at all bring up the question of the closed sea (mare clausum). The right of American vessels to navigate in Bering Sea is self understood. From both sides of the line of delimitation these waters are open to the vessels of commerce of all countries. That being admitted there can be no dispute or discussion, whatever pretention Russia may make to an exclusive sovereignty over the eastern part of Bering Sea or to the extension of her domination over the waters in question.

“The right of the Imperial Government to interdict to foreign vessels the hunting of seals on this side of its maritime frontier to a distance from the lower coast of 3 miles is not at all contested nor brought in question. If the plaintiffs had been surprised killing seals in Russian waters we concede that their vessels would have been liable to capture, and that they would have been, with their cargo, rigging, and apparatus, subject to capture and confiscation by sentence of a competent tribunal, in accordance with international law and the laws of all civilized nations, while the officers and crew would have been liable to such penalties as said tribunal might have lawfully inflicted on them. But, on the other hand, if it is established, as the evidence seems to show, that the vessel in question was quietly pursuing its voyage and that she was at a distance of 20 miles from the coast, toward which she was proceeding with a legitimate object, she was irregularly seized, in spite of the protests of her captain, and confiscated, with cargo and apparatus, by an officer of the Russian ship of war, it is clear that it was an arbitrary act and one which the Russian Government is responsible for, for the prejudice which the plaintiffs have suffered by that act.”

The plaintiffs conclude by affirming that the capture, confiscation, and imprisonment in question having been illegal and in contravention to the existing treaties between Russia and the United States, they have based a claim against the Russian Government for a just indemnity estimated as follows:

Value of the vessel and rigging	$25,000
424 skins of seals taken during the voyage at $20 each	8,480
Probable result of the hunting voyage according to the average of the season	40,000
Illegal detention of the captain and crew, physical and moral suffering endured by them, and permanent injury caused by such treatment (25 men, at $2,000 each person)	50,000
Total	123,480

The substance of the documents annexed in copy to the petition is as follows:

1. The protest signed at Kanagawa by Captain MacLeen and 4 men of his crew states the facts as follows: At 6 o’clock in the morning, when the schooner was at a distance of 20 miles to the west of Copper Island, a Russian ship of war approached it on the starboard side, with flag raised, and fired a cannon shot. Understanding that it wished to speak with him, the American flag was hoisted on the schooner, and she was hove to. A boat was then lowered from the ship of war and boarded the schooner. The officer who came on board with his crew demanded the log book, which was given him, and he asked to examine the vessel. The captain assisted in this, the schooner containing nothing which he wished to conceal. Then the officer left the schooner, taking with him the official log book, although the captain requested him to leave it on board. In putting off the officer declared that the schooner would have to follow the ship of war. Soon he returned in his boat with a detachment of armed marines and demanded that the captain and 7 men should leave the vessel. MacLeen refused, believing it his duty to remain on board, and undertook to put the schooner on her easterly course, followed on one side by the boat and on the other by the ship of war, which, after firing four or five cannon shots, began to sail around her from starboard to port, and then from port to starboard. Seeing himself very closely pressed by the ship, the captain of the schooner tacked to starboard. In executing this maneuvre the vessel fouled the ship of war and lost her jib boom in the collision. Meantime the ship of war attached her cables to the rigging of the schooner. The captain ordered these cut loose, but the execution of this order was hardly commenced when the Russian armed marines boarded the schooner and MacLeen was ordered on board the ship of war, the commandant of which declared that his vessel was captured. The captain of the James Hamilton Lewis having demanded by what right the capture was made, the commandant answered him that the schooner had been taken in Russian waters. MacLeen protested, stating that he was in an open sea, the waters of which belonged to all nations, and at more than 20 miles from the nearest point of land. He added that since the 28th of June of that year no one of the crew had gone ashore, that all the seals found on the schooner had been killed by gunshots on the open sea, and that the skins of the young seals preserved on board came from animals taken from the bellies of their mothers after these had been brought on board the vessel.

2. In his subsequent deposition at San Francisco on January 13, 1893—that is to say, one year and five months after the capture—Captain MacLeen added, among other things, what follows, to his former declaration received by the United States consul at Kanagawa. On August 2 he had made no attempt to hunt seals. The last dispatch of boats for the purpose of hunting dated back to July 3. During the entire season the schooner had never been nearer to Copper Island than at the time of her capture. Her last observations had been made July 30. The weather being foggy she was obliged to determine her position and to this end tried to see Copper Island which she made out August 2 at 4 o’clock in the morning. The seals found on board had not been taken in Bering Sea, but in the Pacific Ocean. Skins had not been salted since July 30. The Russian marines who boarded the schooner had pulled down the American flag, which they had torn in pieces and trodden under foot. On August 3, the schooner and her crew had been brought to Bering Island. There, the Russians had taken 424 skins, carrying them ashore, while part of the provisions were taken on board the Aleut. Then the schooner was sent to Petropavlovsk, where the Russians had taken away and sold five boats belonging to the James Hamiltor Lewis. August 8, the commandant of the Aleut brought MacLeen a document in the Russian language, saying to him that it was the act of seizure, and insisting that he should sign it, which MacLeen only did under constraint. He immediately drew up a protest against the said seizure, a document which he gave to the commandant of the Aleut, who annexed the protest to the act of seizure, no copy of which was given to the captain of the schooner. September 2, the James Hamilton Lewis was sen to Vladivostok, where MacLeen was also sent on board a vessel of the national fleet. He arrived there September 28. The day of the seizure the captain of the James Hamilton Lewis had been placed under arrest. At Vladivostok he was permitted to go on shore on condition of presenting himself every day at the police office. He observed this order, demanding many times to be arraigned before a tribunal. The authorities positively declared to him that there was no need for him to be placed under judgment, and on October 10 the captain and crew of the schooner were informed that they could go free. Neither he nor his men had been lodged or nourished during their stay at Vladivostok. The latter had received 50 kopecks a day, but this sum being insufficient to support them, they had been obliged first to sell such clothing as they could spare and after this to beg for a living. As soon as Captain MacLeen was put at liberty with his crew he left Vladivostok and went to Nagasaki, where he hastened to make a protest before the consul against the seizure of his vessel.

The deposition of Captain MacLeen was confirmed by 4 men of the crew of the James Hamilton Lewis, as follows: The mate of the schooner MacDonald as well as Albert Donaldson, Oren Simons, and Andrew C. Simons, calling themselves hunters and attached to the service of the schooner. They have, moreover, declared as follows:

MacDonald deposed that he had been taken on board the ship of war immediately after the capture of the schooner. Two days after his arrival at Bering Island he was permitted, with another man of the crew, to go aboard the schooner to get his clothes and effects, but everything of value had disappeared. He at once reported this to the Russian officer on guard on the James Hamilton Lewis, who told him to draw up a list of the articles which were missing and promised to report it to the commander of the Aleut On this latter ship MacDonald was pressed into the service on board without receiving any other food than that which was furnished to the sailors of the crew. Two days after his arrival at Vladivostok 50 kopecks a day was given to him for his support, and with the other men of the schooner he was obliged to sleep on the ground at the pumping station. Resulting from this bad treatment he had caught smallpox and was sick for three months and a half.

The deposition of Albert Donaldson states that at Petropavlovsk they were sent ashore, where they received 15 kopecks a day for subsistence, which obliged them in order to live to work hard.

According to the joint declaration of Oren and Andrew C. Simons these two men lost the greater part of their effects, which they value at $75, as well as an account book or portfolio containing $8. At Vladivostok they were obliged to sleep on planks with the laborers. They furthermore declare that during the passage from Bering Island to Vladivostok the Russian officer stated to the commandant of the James Hamilton Lewis that the latter had been seized 33 miles from Copper Island.

3. The papers in the case contain, moreover, a copy of the log book in which is a list of the crew and the notes of the voyage of the schooner, to which is also annexed a copy of the protest given August 12 by the captain of the James Hamilton Lewis to the commander of the Aleut.

The report (dated August 5, 1891, No. 385) of Second Captain Brandt, commanding the schooner Aleut, the act of seizure of the American sailing schooner James Hamilton Lewis, dated Petropavlovsk, July 30/August 11, 1891, and the extract of the log of the Aleut, documents sent by the commander of Vladivostok, with a report dated September 23, 1894, and received December 8 of the same year, present the facts in question as follows:

The schooner Aleut was on July 21/August 2, 1891, at 4.40 in the morning to the west of Copper Island, about 3 miles to the north of its southern extremity, when a sailing schooner was sighted. It was ahead of the Aleut, followed a northwest course, and was approaching the island. The Aleut headed for her to pay her a visit, which the schooner seeing went about and crowded on all sail. During the pursuit the crew of the sailing schooner were seen from the Aleut to throw something overboard. At 5.15 o’clock, at 12 miles from the southern extremity of Copper Island, the Aleut overhauled the schooner and fired a blank shot, on which the latter vessel hoisted the American flag and came to. Two officers sent to visit her reported on their return that the vessel was from San Francisco and carried the name of the James Hamilton Lewis. They had found on board 6 small whaleboats, a great quantity of salt, guns, cartridges, powder, and bullets, together with some long poles of bamboo with iron points, furnished with cord and rings to drag wounded seals out of the water. On being interrogated the captain of the schooner stated that he had come into those waters to hunt birds and to fish. He at first affirmed that the number of the crew was 25 men. Then he reduced the number to 22, adding that 5 of them were absent. In fact, the schooner only contained 17 men, including the captain. The journal which he produced, under the name of the official log book for 1891, only contained three entries, two of which related to incidents of the life on board and the third stated that the schooner had been visited in the neighborhood of Sand Pocus, Alaska, by the Thetis of the United States war fleet. There was further noted some account of the schooner and her sailors. As to the notes of time and place relative to the voyage of the vessel the journal contained nothing.

Although this first visit did not reveal any salted skins of seals or otters, everything else showed, nevertheless, that one had to deal with a schooner poaching in our waters, and probably also on our shores, if occasion offered. In consequence, the commandant of the Aleut ordered Lieutenant Lebedeff to take with him 6 men to go aboard the schooner, make the seizure, send the captain and half the crew on board the Aleut, and then bring the James Hamilton Lewis to Nikolskoe. When these orders were brought to the knowledge of the captain of the sailing vessel, he peremptorily refused to submit to them, stating that if the commandant of the ship of war needed to see him he could come to him. Thereupon he resumed his course and continued to sail with the wind. Seeing the schooner standing away while a light fog began to spring up, the commandant of the Aleut gave chase. Overhauling him he demanded that he come to, and supported his words by firing a shot over his bow. There was no response, and the schooner continued her course. The Aleut permitted her to pass, then overhauled her again, taking her on the other side, and pressing closer to her this time. The commandant repeated his order to come to and again supported it with a shot fired against the forward sails. To the verbal summons the captain answered some words, indicating the American flag. To the cannon shot, which pierced the jib, he paid no attention. Then the Aleut increased her speed and barred the passage of the schooner, which fouled her on the starboard side. The shock broke the jib boom of the James Hamilton Lewis and damaged the taffrail, as well as the after corner of the poop of the Aleut, which, having forced the schooner to stop, took her in tow. The captain of the schooner, MacLeen, as well as her crew, were brought on board the Aleut and were informed that their vessel was seized and would be brought to Nikolskoe, situated on Bering Island.

During the tow the schooner was subjected to a careful examination. Four hundred and twenty-four seal skins, one line for fishing for otters, and two skins taken from seals which, estimating their ages and following the estimates of the chief of the arrondissement of the Commander Islands, could only have been killed on shore. On arrival at Nikolskoe the captain of the James Hamilton Lewis had to deliver the documents of the vessel, and he was notified that his schooner was considered to be a prize for having been engaged in forbidden and illegal hunting, and that he was to be taken to Vladivostok in accordance with orders that crews of vessels of that category having been guilty of resistance should be brought to that port. Now, there had been resistance from the fact of the refusal of Captain MacLeen to come to on receipt of the order to do so. Consequently the commandant of the Aleut proceeded to arrest the captain of the schooner and her crew. An act was drawn up, signed by the Commandant Brandt and by the officers, as well as by the Captain MacLeen. The latter wrote on the back of this document the following protest, expressed in English:

“I, the undersigned, hereby protest, in the name of the schooner James Hamilton Lewis and her owners, against the illegal seizure of the said vessel, her rigging, cargo, and apparatus for hunting and fishing found on her, a seizure effected by the Russian ship of war Aleut August 2, 1891, in the open sea, in the neutral waters of the Ocean. All the seal skins found on board the James Hamilton Lewis came from animals killed by gunshots in the said waters of the ocean. As to the skins of young seals which form part (of the above), they were taken from animals drawn from the bellies of their mothers taken on board. No seal had been taken within the forty hours preceding the said seizure. In consequence, I hold the Russian ship of war Aleut and her Government responsible for this detention, as well as for the damages caused by the illegal seizure of the James Hamilton Lewis, her cargo, and the apparatus found on her.”

The captured vessel was then prepared, by order of the commandant of the Aleut, to be taken to Petropavlovsk. Lieutenant Lebedeff, Ensign Engmann, 2 quartermasters, and 7 sailors, with 6 men from the crew of the James Hamilton Lewis, were designated to bring her. All the skins found on board of the schooner were, by order of the commandant, Brandt, sent against receipt to the chief of the arrondissement of the Commander Islands, to be sent to London and sold for the account of the Government.

The 24th of July the captured schooner weighed anchor for her destination, Petropavlovsk, where the Aleut found her, arriving on the 27th of the same month. The captain and 10 men of the crew of the James Hamilton Lewis were sent by order of the captain of the Aleut on board the steamer Vladivostok of the national fleet, and 6 others left on board of their vessel. August 17 the latter was sent on to Vladivostok.

In the report which he presented to the commandant of Vladivostok, dated October 20, 1891, the commandant of the Aleut stated, among other things, that his ship was, on the 21st of July, in the morning, near the southern point of Copper Island, at the moment when the James Hamilton Lewis was perceived. The distinctness with which her sails could be seen did not permit of the distance which separated the two vessels to be estimated at more than 6 miles. It follows that the James Hamilton Lewis was distant 6 miles at most from the southern point of Copper Island. The schooner was heading toward the shore, but as soon as she perceived the Aleut she went about and put on all sail. She was overtaken at 13 miles from the point from which she had been first seen, at 11 miles from the southern point of Copper Island.

On arrival at Vladivostok of the documents collected, on board the James Hamilton Lewis, it proved that the most important, namely the journal of the vessel, serving among other things to note daily the geographical position of the ship, was not among the number. It was replaced by a book not at all filling those conditions, although it was entitled “official log book,” with mention that it has been delivered by the Treasury Department of the United States.

On examination of the present affair to the bottom, it appears to rest upon the following considerations:

As soon as the schooner James Hamilton Lewis, seen July 21/August 2, 1891, by the Aleut at 3 miles to the north of the southern extremity of Copper Island, noticed that our ship of war was headed for her, she changed her course and stood away under all sail from the island in question. At the same time some objects were thrown overboard into the sea. When, after a pursuit of an hour and a half, the James Hamilton Lewis was overhauled, a great quantity of firearms, powder, apparatus for dragging killed seals from the water, seal skins, and among them two skins of young seals which could only have been killed on shore. This assemblage of facts gave to the commandant of the Aleut sufficient basis for declaring the captured vessel subject to prize, as engaged in illegal and forbidden hunting in Russian waters. All the preceding recital of circumstances preceding or following the arrest of the schooner are confirmed by the protocol of seizure and by the entries in the log book of the Aleut The captain of the James Hamilton Lewis has only set up his simple allegation, without supporting evidence, recorded in his protest, and stating that the sealskins found on board his vessel came from animals killed by gunshots at sea, and that no seal had been taken within forty hours before the capture. Now, it lay entirely with the said captain to present, at the time of the arrest of the schooner, a journal of the vessel, the tenor of which from day to day would have left no doubt and which would have served to establish in a convincing and irrefutable manner the movements of the James Hamilton Lewis up to the moment of arrest. Whether such a journal was or was not kept on board the James Hamilton Lewis, it is certain that it was not given to the commandant of the Aleut, who claimed it at the time of the capture. In place of this the captain of the American schooner gave him, according to his own protest before the United States consul at Kanagawa, a book which, in spite of its title, Official Log Book, did not at all fill those conditions. This being admitted, the extract from the journal of the vessel presented by the claimants in November, 1893—that is to say, two years after the seizure—could not have the character of evidence in support of the assertions it is intended to corroborate. There is nothing to show that the entries it contains are accurate, having been made at the time; and one is even justified in doubting its authenticity.

The declaration of the Captain MacLeen at the moment of his arrest should not be lost sight of when he explained his presence at the place where that arrest took place, by the design of fishing and hunting birds, passing in silence hunting of seals. Now, in searching the schooner no birds nor fish were discovered, but only seal skins and apparatus for hunting those animals.

With regard to the depositions made by Captain MacLeen and some of the men of his crew before the deputy of the court of the district of San Francisco on the subject of the bad treatment which they received from the Imperial authorities, these are mere assertions, unsupported by evidence, and deserve no credence. The reports submitted on the subject of the present affair contain no statements in this regard, whence the conclusion is justifiable that the claimants never presented any complaint of that nature to our authorities at Petropavlovsk.

By reason of what precedes, and considering that the statements furnished by the plaintiffs on the subject of the present affair are bare of evidence worthy of belief, I declare regular the provisions taken by Second Captain Brandt, commanding the Aleut, concerning the arrest and seizure of the American schooner James Hamilton Lewis. In consequence I give notice that the demand for indemnity brought by the owners, captain, and crew of the said vessel should not be taken into consideration.

The Gerant of the Ministry of Marine,
Aid-de-Camp General Tchikatcheff.

Countersigned,
Director Serebriakoff.