No. 4587.]

Mr. Chargé d’Affaires: Having received the note of the embassy of the United States dated July 23 (August 4) of this year, relative to the affair of the American schooner James Hamilton Lewis, I have not failed to communicate it to the ministry of marine.

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.

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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.

Count Lamsdorff.

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.

  1. “Terrӕ dominium finitur ubi finitur armorum vis.” In every case, according to existing opinions, the extent of territorial waters should be considered as 5 miles from shore.