The said note as well as the previous communication of the embassy dated
March 6 (18) of this year, having been made the subject of a most
thorough examination on the part of the competent authorities, I have
the honor to transmit to you to-day the reply of the Imperial ministry
of marine contained in the memorandum hereto annexed.
Returning to you herewith the log book of the American schooner in
question, which the embassy had the goodness to send to us, I seize the
occasion to renew to you, Mr. Chargé d’Affaires, the assurance of my
distinguished consideration.
Mr. H. Peirce,
Chargé
d’Affaires of the United States of America.
The account of the seizure of the American schooner James Hamilton Lewis, as related in the memorandum annexed
to the ministerial note of May 18, 1896, states that on July 21
(August 2), 1891, in the morning, the sailing schooner James Hamilton Lewis, of San Francisco, was
seen from on board the cruiser Aleut of the
Imperial Russian navy, then lying near the southern extremity of
Copper Island in Bering Sea, the schooner being about 5 miles from
the coast. The cruiser Aleut, after having
given chase to the vessel, arrested her at a distance of 11 miles
from the shore as liable to confiscation for being engaged in
illicit seal hunting in Russian waters. On the captured vessel there
were found among other things a chart of those waters, the official
log book, and other documents.
To the claim of the captain of the James Hamilton
Lewis alleging that he had not gone into Russian waters for
the purpose of illicit hunting of seals, and that he was arrested
outside of such waters, it is answered as follows:
1. The fact of the presence in Russian waters of a vessel presumably
engaged in illicit hunting is sufficient justification of her
pursuit, even after the vessel has quitted the waters in question;
the place where the James Hamilton Lewis was
seen by the Russian cruiser is sufficiently conclusive under the
circumstances to justify the right of pursuit, for were it otherwise
the protection of the national interests confined to our cruisers
would become entirely illusory.
But a radius of 5 miles ought to be considered as coming within the
limit of territorial waters. According to the principles of
international law territorial waters are understood to be the extent
of sea adjacent to the shores over which the bordering power can, in
fact, exercise dominion, and which constitutes a prolongation of its
territory.a
In view of the existing means of coast defense, the perfection of
armaments, as well as the new conditions of social life (military,
financial, and economic needs), the determination of the extent of
territorial waters at 1 marine mile from the coast, according to the
theory invoked to sustain the claims in question, could not at all
be considered as justifiable, neither from the point of view of the
practical range, as it should, nor as answering all the necessities
in view.
Questions relative to the exploitation by foreigners of the various
industries of hunting and fishing in territorial waters may be
regulated by international arrangement, but in default of such
arrangements they should be regulated according to the general
principles applicable to the subject. In the present case,
independently of the principles above enunciated, the special
necessity of the protection of the fur seals may be cited, a
necessity also recognized by the United States, inasmuch as it has
concluded with the Imperial Government of Russia—subsequently, it is
true—the arrangement of 1893, by which the extent of the prohibited
zone is fixed at 30 miles around the Commander Islands—that is to
say, up to a limit much beyond that in question in the present
affair.
2. As for the presumption regarding the object of American schooner’s
coming into Russian waters, a presumption which was the motive of
the pursuit and arrest of the vessel, it was justified by the
following facts: Going about of the schooner on being sighted;
persistent refusal to permit a search; inaccurate statement with
regard to the purpose of her course and to the composition of the
crew; haste employed to set in order whatever was inside the vessel;
fact of concealing 424 skins, the result of the hunt; presence on
board of various apparatus used in hunting fur seals, as well as 2
skins of young seals which could only have been killed on shore;
refusal to produce authentic documents of the vessel; vague
declarations with regard to hunting previously on the high seas,
etc. The foregoing shows sufficient justification of the arrest of
the vessel in question.
3. As to the argument on the fact that the confiscation of the vessel
and her cargo was done by executive and not by judicial procedure,
it is answered as follows:
[Page 201]
Previous to the publication of the law of January 1, 1893,
forbidding seal hunting under pain of criminal action,
administrative procedure was applicable under guaranty of equity,
provided by the laws in force and by instructions from the supreme
authority. In the present case the fact must be taken into account
that the sale at auction of the confiscated material took place in
accordance with the agreement between the ministry of marine, the
governor-general of the amour, and the ministry of finance; the
auction was fixed by the council of the admiralty. Under these
conditions the procedure must be considered as having been entirely
regular.
A new element has been introduced into the affair by the recent
presentation of the log book of the schooner James
Hamilton Lewis, containing data on the subject of her
cruise from March 7, 1891, to the day of her arrest near Copper
Island. Doubtless a document of this nature might have contributed
to elucidate the affair, and even eventually to spare much damage to
the vessel in question if it had been presented at the desired
moment, and if it had served to directly confirm the allegations of
the captain.
This latter, however, instead of complying with his most elementary
obligations in this respect, since he states that he was engaged in
making certain verifications near the Russian coast, delivered to
the officer sent to interrogate him another register, bearing the
title “Official Log Book,” which contained data having no relation
to the affair. The log book recently presented, however great its
importance may have at all times been recognized to be on both
sides, was only transmitted in its original text to the Imperial
ministry of marine, six years and ten months after (May 21, 1898)
the arrest of the vessel, which took place July 21/August 2,
1891.
Further, the title of the log book, commencing with the words
“illegally seized,” indicates that it was written after the protest
of the captain on the subject of the act of arrest inscribed in the
same book, and it thus arouses suspicions as to the authenticity of
the register itself. The sole explanation given as to the delay in
presenting this log book consists in the fear of the captain to
deliver an essential document which could serve as his
justification.
But this explanation can not be admitted, for the American captain
was not justified in refusing his confidence to the commander of a
vessel of war of the Russian navy. In view of the foregoing,
independently of the suspicions which the form of the log book in
question itself arouses, not only the latter can not be considered
as serving to justify the captain, but rather it is evidence of a
contrary nature; that is to say, it corroborates the conviction that
the captain of the schooner James Hamilton
Lewis took steps to conceal from the other the true
character of his operations and the exact place where he had been.
If the captain had had at his disposal a document of this nature
which might be used in his justification, it is reasonable to
suppose that he would have presented it at once and not deprive
himself of the means of thus placing himself under the protection of
the laws of Russia.
Finally, supposing that the log book recently presented was
authentic—that is to say, that it was written prior to the arrest—it
would not invalidate by its text alone the incontestable facts on
which the decision arrived at by the Russian naval authorities was
based.
The ministry of marine sees therefore no reason to change its
previous opinion in regard to this affair, and, entertaining the
above views, it considers that no indemnity is due on the ground of
the confiscation and sale of the schooner in question.
