The American Schooner “James Hamilton Lewis” Arrested and Seized in the Bering Sea by a Cruiser of the Imperial Government of Russia and confiscated by said Imperial Government.
statement of the facts.
The James Hamilton Lewis was an American schooner, duly registered in accordance with the laws of the United States, at the port of San Francisco, in the State of California. She was owned, officered, and manned by citizens of the United States of America.
She sailed from San Francisco on the 7th day of March, 1891, with her clearance and ship’s papers in proper and lawful form, with a full complement of officers and men, destined for a cruise in the North Pacific Ocean on a hunting and fishing 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.
In support of these allegations the following documents are hereto annexed and submitted in evidence, marked respectively as herein stated:
- Exhibit A.—A duly authenticated copy of the certificate of the collector of the port of San Francisco, showing the ownership of the said James Hamilton Lewis.
- Exhibit B.—A duly certified copy of her clearance papers from the said port of San Francisco.
- Exhibit C.—A duly certified copy of the manifest of the said vessel.
Proceeding on her voyage, she arrived at Sand Point, Alaska, on June 27, 1891, where she came to 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° 10′ north, longitude 165° west; July 9, latitude 50° 10′ north, longitude 170° west; July 13, latitude 51° 10′ 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° 21′ east, where she was seized early in the morning of that day by the Russian cruiser Aleut, the said James Hamilton Lewis being at the time of the seizure about 20 miles distant from and to the east of Copper Island, the nearest land.[Page 102]
The position of the schooner on the day of the seizure is stated in the log book or journal of the said vessel, which is hereto annexed, marked “Exhibit D,” and the same is attested by her crew. By the record contained in the said log book the course of the schooner can be traced during her whole voyage, which is graphically illustrated in the plotting of the course of the vessel, according to the data given in said log book, upon the sailing chart hereto annexed, marked “Exhibit E.”
An examination of these documents shows that the James Hamilton Lewis never in the course of this voyage entered Russian territorial waters.
A statement upon the last page of the log book shows where she had killed all the seals she had taken during the voyage, and it shows, further, that none of the seals taken by her had been caught within Russian jurisdiction. All had been taken on the high seas and had been shot with shotguns, as is the common practice in so-called pelagic sealing or sealing upon the high seas. The greater part of the seals taken by the vessel were females, as is shown by the depositions of Thomas F. Morgan and John Malowansky, submitted before the Paris tribunal of arbitration under the treaty between the United States and Great Britain, concluded at Washington February 29, 1892, and published in the official account of the proceedings by the Government of the United States. A copy of the said official publication of the said proceedings, Volume III, Appendix II to the case of the United States, is hereto appended and submitted in evidence, marked “Exhibit F,” reference upon the point in question being made on page 65, lines 14 to 20, and page 197, lines 38 to 42.
There were also among the catch of the vessel some young seals or pups, which had been taken from the bellies of their dead mothers. The skins from these young seals or pups form a separate article of commerce in sealskin market, as is shown on page 503, lines 5 to 8, of Exhibit F.
On August 2, 1891, having on board 424 sealskins, the captain of the James Hamilton Lewis deemed it necessary to make land in order to test his chronometer, and he accordingly headed for Copper Island.
Having approached sufficiently near to land for his purpose, he put his vessel about, intending to make for waters more favorable to the pursuit of the vessel’s calling, outside the Bering Sea in the Pacific Ocean and in the track of the seals leaving the seal islands for their feeding grounds, and also on his way homeward. Upon coming about, however, he was brought to by a shot from the Russian cruiser Aleut. Supposing that the commander of the Russian vessel desired to speak with him, the captain of the James Hamilton Lewis hoisted the American flag to indicate his nationality and that of his vessel, as is customary, and came to, awaiting the arrival of a boat from the Russian cruiser.
On the arrival of the boat a Russian naval officer came on board the schooner and demanded the official log book of the vessel, which was given him by Captain McLean, as well as all other documents necessary to establish the nationality and identity of the vessel. Every facility was given to the Russian officer in his examination of the vessel, the captain having nothing to conceal, but apparently his search was not conducted with great thoroughness, for he failed to find 424 sealskins, which were on board and easily discoverable.[Page 103]
The officer having made the examination, left the James Hamilton Lewis, taking with him the official log book of the vessel, which he refused to give up.
Soon afterwards the officer returned with an armed crew and ordered Captain McLean to leave his vessel and go on board the Aleut as a prisoner, with all his ship’s company except seven. This command the captain, well knowing that he had violated no law within Russian jurisdiction and that he was subject to no orders from Russian officials, refused to obey, and he thereupon put his vessel on her course, steering east.
Upon this the commander of the Russian cruiser commenced a pursuit, and, overhauling the James Hamilton Lewis, by force of arms and by violence captured her, overpowering the crew and making them and the captain prisoners.
Captain McLean was taken as a prisoner on board the Russian cruiser and there informed that his vessel was confiscated, and he thereupon entered a protest against the seizure, a copy of which protest is to be found duly entered in his log book or journal of the voyage.
In this protest Captain McLean stated that his vessel was illegally seized and without right upon the high seas and not within 20 miles of land; that neither the captain nor any member of the ship’s company had touched land since they left Sand Point, Alaska, on June 28, 1891; that all seals on board had been taken on the high seas and killed with shotguns; that the skins of the two pups were taken from animals unborn which had been found in the bellies of their mothers, and that no seals had been taken within forty hours previous to the seizure.
At the time of the seizure and thereafter the captain of the James Hamilton Lewis was compelled under duress to sign papers in the Russian language, of the contents of which he could have no knowledge, not understanding Russian.
On August 3, 1891, the schooner and her crew were taken to Bering Islands, and from thence to Petropavlovsk, and from thence to Vladivostock, all in the Russian dominions. The vessel with her cargo and equipment and the personal property of the crew was confiscated, and her captain, officers, and crew held as prisoners and subjected to indignity and harsh treatment and the crew put to hard labor. They were miserably lodged in an unwholesome and vermin-infested building and inadequately fed, and in consequence of this treatment they all suffered permanent injury to their health, became emaciated in form, depressed in spirit, and undermined in constitution, and finally two of them contracted smallpox, from which disease one of them died.
All the facts regarding the said seizure are duly set forth in the documents attached to the note of the envoy extraordinary and minister plenipotentiary of the United States of America at St. Petersburg to the Imperial Russian ministry of foreign affairs dated July 11, 1894, a duly certified copy of which is hereto annexed, together with copies of said documents thereto attached marked “Exhibit G.”
These said documents consist of the following: A memorial on behalf of the owners, master, and crew of the American schooner James Hamilton Lewis to the honorable Secretary of State of the United States; the affidavit of Alexander McLean, master of the said schooner; the affidavit of Joseph McDonald, mate of said schooner; the affidavit of Albert Leslie Donaldson, officer and hunter on said [Page 104]schooner during said voyage; the joint affidavit of Oren Simons and Andrew C. Simons, officers and hunters on said schooner during said voyage; a copy of a marine protest against the loss of the said vessel, her cargo and equipment, on file at the consulate-general of the United States of America at Kanagawa, Japan.
In addition to the documents herein previously enumerated as part of the evidence in this case, the following documents are also hereto annexed and submitted in evidence, marked respectively as herein indicated:
- Exhibit H.—A duly certified copy of a note from the Imperial Russian ministry of foreign affairs to the then envoy extraordinary and minister plenipotentiary of the United States of America at St. Petersburg, dated May 18 old style, May 30 new style, 1896, inclosing a copy of a memorandum from the Imperial Russian ministry of the marine upon the subject of the seizure of the James Hamilton Lewis, all forming parts of the same exhibit.
- Exhibit I.—A duly certified copy of a letter from Mr. George R. Tingle, attorney for the claimants in this case, to the honorable Secretary of State of the United States, and inclosing copies of the affidavits of A. C. Simons and A. L. Donaldson, all forming parts of the same exhibit.
- Exhibit J.—A duly certified copy of a note from the then chargé d’ affaires of the United States of America at St. Petersburg to the Imperial Russian ministry of foreign affairs, dated January 9 (21), 1897.
- Exhibit K.—A duly certified copy of a memorandum (undated) left in a personal interview by the then ambassador of the United States of America at the Imperial Russian ministry of foreign affairs.
- Exhibit L.—A duly certified copy of a note from the then ambassador of the United States of America at St. Petersburg to the Imperial Russian ministry of foreign affairs, dated May 16 (28), 1898.
- Exhibit M.—A duly certified copy of a note from the then ambassador of the United States of America at St. Petersburg to the Imperial Russian ministry of foreign affairs, dated July 23 (August 4), 1898.
- Exhibit N.—A duly certified copy of a note from the Imperial Russian ministry of foreign affairs to the United States embassy at St. Petersburg, dated October 19 (31), 1898, and inclosing a copy of a memorandum from the Imperial Russian ministry of marine, all forming one exhibit.
- Exhibit O.—A printed copy of the report of the director of the hydrographic department of the Imperial Russian ministry of marine, Vice-Admiral Wewel von Kramer, for the year 1875. (Printed in the Russian language at St. Petersburg, in the printing office of the ministry of marine.) The marked paragraph on page 91 is especially cited, and a sworn translation of said paragraph is attached to the exhibit, forming one with it. This exhibit is Exhibit C C in the case of the Cape Horn Pigeon in arbitration, together with the present case, and is now referred to in this case as here stated.
- Exhibit P.—A duly certified copy of a note from the Imperial Russian ministry of foreign affairs to the then chargé d’affaires of the United States of America at St. Petersburg, dated May 8, 1882.
- Exhibit Q.—A duly certified copy of a note from the Imperial Russian ministry of foreign affairs to the then chargé d’affaires of the United States of America at St. Petersburg, dated June 1 (13), 1882, together with its inclosure, all forming one exhibit.
- Exhibit R.—A certified copy of a memorandum showing the speed of some of the best yachts in the world.
- Exhibit S.—A certified copy of the last registry of the James Hamilton Lewis at the custom-house at San Francisco.
- Exhibit T.—The sworn statement of Max Waizman to the effect that he was the owner of the James Hamilton Lewis and a citizen of the United States when that vessel was seized.
- Exhibit U.—The sworn statement of Alexander McLean, captain of the James Hamilton Lewis, to the effect that he and all the crew of that vessel were citizens of the United States of America at the time of the seizure, and that they continue to be at the present time.
- Exhibit V.—The sworn statement of A. P. Lovenstein that he considers the value of the James Hamilton Lewis to have been $25,000 at the time of her seizure.
- Exhibit W.—The sworn statement of Michael White to the same effect.
- Exhibit X.—The sworn statement of William Bendt to the same effect.
- Exhibit Y.—The sworn statement of George E. Dodge to the same effect.
- Exhibit Z.—The sworn statement of Charles F. Rudell concerning the speed of the James Hamilton Lewis.
- Exhibit A A.—The sworn statement of Andrew P. Lovenstein to the same effect.
- Exhibit B B.—The sworn statement of M. I. James, marine surveyor, to the same effect.
- Exhibit C C.—The sworn statement of Leon Blum to the same effect.
- Exhibit D D.—The sworn statement of George E. Dodge to the same effect.
- Exhibit E E.—The sworn statement of E. I. Ezekiel to the same effect.
Reference is also made to the following portions of Exhibit F, volume 3 of the Proceedings of the Tribunal of Arbitration, convened at Paris under the treaty between the United States of America and Great Britain, concluded at Washington February, 1892, for the determination of questions between the two Governments concerning the jurisdictional rights of the United States in Bering Sea. (Washington, Government Printing Office.) Appendix to the case of the United States, volume 11, page 65, lines 14 to 20, inclusive; page 197, lines 38 to 42, inclusive, both already cited as evidence of the nature of the seals taken by the James Hamilton Lewis. Page 503, lines 5 to 8, inclusive; page 359, lines 31 to 36, inclusive; page 39, lines 26 to 30, inclusive; page 139, lines 17 to 36, inclusive; page 140, lines 41 to 50, inclusive; page 189 entire; page 211, last seven lines; page 212, first two lines; page 271, deposition of Peter Trearsheit; pages 315 and 316, deposition of Niels Bonde; page 317, deposition of Henry Brown; pages 318 and 319, deposition of Thomas Brown; page 322, deposition of Alfred Dardean; page 325. deposition of Arthur Griffin; page 326, deposition of James Harrison; pages 329, 330, and 331, deposition of James Jamieson; pages 334 and 335, deposition of Andrew Laing; pages 345 and 346, deposition of Charles Peterson; pages 346 and 347, deposition of Edwin P. Porter as evidence of the character of seals taken in pelagic sealing, the distance from land at which such sealing may be and is practiced, and the greater value of sealskins from seals taken on or near land over those taken on the high seas. Pages 512, 513, and 514, deposition of Herman Liebes; pages 518, 519, and 520, deposition of John J. Phelan; pages 424 and 425, deposition of Henry Treadwell; pages 554, 555, 556, 557, and 558, deposition of Alfred Fraser; pages 570, 571, and 572, deposition of Henry Poland; pages 574, 575, and 576, deposition of W. C. B. Stamp; pages 576 to 582, deposition of Emil Teichman as to the character, quality, and relative value of the skins of seals taken on the high seas as compared with those taken on or near land. Pages 61 to 65, inclusive, deposition of Thomas Morgan; pages 93 and 94, deposition of William H. Williams; pages 99, 100, and 101, deposition of Kerrick Artomanoff; pages 107, 108, and 109, deposition of John Fratis; pages 111, 112, and 113, deposition of Charles A. Goff; pages 128, 129, and 130, deposition of Aggei Kushen; pages 140 and 141, testimony of J. C. Redpath; pages 142 to 145, inclusive, deposition of Anton Melovedoff; pages 147 to 152, inclusive, deposition of Samuel Falconer; pages 175, 176, and 177, deposition of W. B. Taylor as to the habits of seals as bearing on pelagic sealing and the character of seals so taken. And page 189, lines 1 to 24, inclusive, as to the nature of skins taken in pelagic sealing and the fact that skins of pups or young seals taken from the bellies of their mothers are not infrequently found among the skins secured in pelagic hunting expeditions.
treaty obligations of russia and the laws of nations.
By article 1 of the treaty of 1824 between the United States and Russia it was declared as follows:
It is agreed that in any part of the great ocean, commonly called the Pacific Ocean or South Sea, the respective citizens or subjects of the high contracting powers shall be neither disturbed nor restrained, either in navigation or in fishing or in the power of resorting to the coasts upon points which may not already have been occupied for the purpose of trading with the natives, saving always the restrictions and conditions determined by the following articles.
This treaty, as well as that of 1825 between Russia and Great Britain, was the result of the protests of the Governments of the United States and Great Britain against so much of the ukase of the Emperor of Russia of 1821 as might be interpreted as giving to the Imperial Government of Russia the right to claim exclusive jurisdiction in the Bering Sea beyond the limits of ordinary territorial waters.
These two treaties must be regarded, and, indeed, it has been decided that they do, as admitting the limitation of jurisdiction in the Bering Sea to that which is conceded to maritime states generally. In support [Page 106]of this view that the marine jurisdiction of the states bordering on the Bering Sea is subject to the same limitations as that which maritime states generally are competent to claim and to exercise upon the sea, the case presented on the part of Her Britannic Majesty in the proceedings before the Paris tribunal of arbitration, convened under the treaty between the United States and Great Britain concluded at Washington February 29, 1892, for the determination of questions between the two Governments concerning the jurisdictional rights of the United States in the waters of Bering Sea, forming Volume IV of the publication of the Government of the United States under the above heading, is hereby cited, pages 5 to 69, inclusive; pages 84 and 85, “Seal huntings” and pages 120, 121, and 122, Chapter X.
The decision adopted by a majority of the tribunal was as follows:
By the ukase of 1821 Russia claimed jurisdiction in the sea now known as the Bering Sea to the extent of 100 Italian miles from the coasts and islands belonging to her, but in the course of the negotiations which led to the conclusion of the treaties of 1824 with the United States and of 1825 with Great Britain Russia admitted that her jurisdiction in the said sea should be restricted to the reach of a cannon shot from shore, and it appears that from that time up to the time of the cession of Alaska to the United States Russia never asserted in fact or exercised any exclusive jurisdiction in Bering Sea or any exclusive rights in the seal fisheries therein beyond the ordinary limit of territorial waters.
It was also unanimously decided by the tribunal that—
The body of water now known as Bering Sea was included in the phrase “Pacific Ocean” as used in the treaty of 1825 between Great Britain and Russia.
A majority of the tribunal further agreed upon the decision that—
No exclusive rights of jurisdiction in Bering Sea and no exclusive rights to seal fisheries therein were held or exercised by Russia outside of ordinary territorial waters after the treaty of 1825.
A majority of the tribunal also adopted the following decision:
The United States has not any right of protection or property in the fur seals frequenting the islands of the United States in Bering Sea when such seals are found outside the ordinary 3-mile limit.
The Bering Sea is an open sea, “the common highway of all nations,” and the resort thereof for purposes of navigation can not be interdicted to vessels of every nation.
Chancellor Kent has said:
The open sea is not capable of being possessed as private property. The free use of the ocean for navigation and fishing is common to all mankind, and the public jurists generally and explicitly deny that the main ocean can ever be appropriated.
The whole space of the sea within cannon shot of the coast is considered as making a part of the territory; and for that reason, a vessel taken under the guns of a neutral fortress is not a good prize.
All we have said of the parts of the sea near the coast may be said more particularly, and with much greater reason, of the roads, bays, and straits, as still more capable of being occupied, and of greater importance to the safety of the country. But I speak of the bays and straits of small extent, and not of those great parts of the sea to which these names are sometimes given, as Hudson’s Bay and the Straits of Magellan, over which the Empire can not extend, and still less a right of property. (Law of Nations, book 1, chapter XXIII, sections 289, 291.)
Ortolan expresses the following opinion:
As to interior seas, a right of exclusive domain and sovereignty on the part of a nation over such a sea is only incontestable when that sea is totally included within the territory so as to form an integral part of it and so that it can absolutely only serve as a means of communication between the citizens of the nation in question [Page 107]alone. Then indeed none of the conditions obstructive to ownership or to empire of the seas are applicable. But the moment that several different States possess the shores of such a sea, none of them can call itself the owner or sovereign to the exclusion of the others. (International Regulations and Diplomacy of the Sea, 4th edition, Vol. I, p. 147.)
The very eminent jurist, M. de Martens, counsel for the Imperial Russian ministry of foreign affairs, writes:
In our day legislation and the opinions of jurists are in accord in recognizing the liberty of the ocean, and no people could make pretention of control thereof. Those portions of the sea which are connected with the ocean are admitted to be free and accessible to all the world even when they are surrounded by the possessions of a single State. Certain restrictions of this principle admitted in practice can only be justified by the necessity of safeguarding the security of the bordering country.
Consequently, from the present point of view, the sovereignty of a State over the seas which bound it, can not extend to a distance which would deprive them of their character of open seas. Thus Sweden was in the wrong in claiming sole possession of the Baltic. This sea communicating with the ocean, as it does, ought always to remain open to all States. (A Treatise on International Law by F. de Martens, vol. 1, p. 494.)
Continuing the citation of this authority (tome 1, p. 497):
The ocean is free for the navigation and communication of all peoples. No nation can be prevented from the enjoyment of fishing or other peaceful enterprises on the high seas. If all enjoy the same rights thereon it follows that no State can there impose its laws upon the others, pass judgments on foreign navigators or sailors, nor arrest or search the ships of another country.
The American schooner Washington, while engaged in fishing in the Bay of Fundy, 10 miles distant from the shore, was seized by a British cruiser and taken to Yarmouth and condemned, on the ground that she was fishing in British waters in violation of the provisions of the convention relative to the fisheries between the United States and Great Britain. A claim for damages was made before the commission of arbitration. In rendering his decision in favor of the claimants the umpire said:
The Bay of Fundy is from 65 to 75 miles wide and from 130 to 140 miles long. It has several bays on its coasts. Thus the word bay as applied to this great body of water has the same meaning as that applied to the Bay of Biscay, the Bay of Bengal, over which no nation can have the right to assume sovereignty.
It is sufficient to say that the reason of the thing, the preponderance of authority, and the practice of nations have decided that the main ocean, inasmuch as it is the necessary highway of all nations and is from its nature incapable of being possessed, can not be the property of any one State. (Commentaries on International Law. Third edition, vol. 1, chap, v, p. 247-248, CLXXII.)
The James Hamilton Lewis was therefore within her rights in navigating in the Bering Sea and in taking seals there, so long as she did not take them within the jurisdictional waters of any bordering State. Thus, so far as the present controversy is concerned, we have to do only with any encroachment there may have been within the territorial waters of Russia as regards any right to arrest her.
the habits of seals.
The sworn statement of the captain and several of the officers and crew of the James Hamilton Lewis, as well as the log book of the vessel, show that all the seals taken by her during the voyage in question were taken on the high seas. This evidence is supported by a study of the habits of seals in the Bering Sea as set forth in the’ portions of the appendix to the case of the United States in the arbitration before the Paris tribunal upon the Bering Sea questions relating to the habits [Page 108]of the seals, the character of skins taken from seals caught in pelagic sealing, and the testimony of Thomas Morgan on page 65 and of John Malowansky on page 97 of the volume. It is to be noted in regard to the testimony of these deponents before the Paris tribunal, that one was the agent of the lessees of the Pribilof Islands, belonging to the United States, and the other the lessees of the Commander Islands, belonging to Russia, and that the testimony of each is in accord that a very large preponderance of the skins of the seals taken by the James Hamilton Lewis were those of females. Now, the whole tenor of the evidence presented to the Paris tribunal on the subject of the habits of seals is to the effect that the male seals seldom leave the islands, while the female seals frequently go to great distances in search of food; and these distances extend to 30, 40, and even 200 miles from land. The evidence regarding the character of the seals taken in pelagic sealing is that from 70 to 95 per cent of those taken on the high seas are females. Finally, the evidence of Mr. Morgan and of Mr. Malowansky shows that from 80 to 95 per cent of the seal skins seized on the James Hamilton Lewis by the Russian cruiser Aleut in 1891 were those of female seals. Thus, therefore, the catch of this vessel was preeminently a pelagic one—that is to say, caught on the high seas.
The deposition of Herman Liebes, presented to the Paris tribunal in the case of the United States, and printed on pages 512 to 514 of volume 3 of the publication of the United States Government of the proceedings, shows that this deponent had offered special inducements to the pelagic hunters to bring in male skins, but that each and all of the men approached on the subject stated that it was impossible to obtain male seals in any quantity on the high seas. It is clear, therefore, that it was to the interest of the captain of the James Hamilton Lewis to obtain male seals. This, however, he could only do by taking them on or near the islands. Had he been hunting near the islands he would certainly have taken pains to secure male seals, as he could easily have done. Why should he run all the risks incident to hunting in forbidden waters for what he could procure as well or better in safety oh the open sea? That he did not procure male seals, but on the contrary had an unusually large percentage of female skins in his catch is of itself proof, therefore, that he was not fishing near land, and this is substantiated by the evidence of the log book.
It has been claimed by the Russian Government that the skins of two “pups,” or young seals, found on board the James Hamilton Lewis could only have been taken on land.
The testimony submitted by the United States before the Paris tribunal shows incontestibly that young seals are very frequently taken from the bellies of their mothers, and not unfrequently alive. See the following pages of the volume of the proceedings of the tribunal quoted above: 189, 211, 241, 258, 260, 261, 262, 264, 266, 267, 268, 269, 270, 271, 273, 274, 275, 277, 278, 279, 282, 286, 315, 320, 321, 322, 323, 324, 325, 326, 329, 330, 331, 340, 347, 348, 349, 350, 370, 371, 374, 377, 379, 380, 385, 387, 388, 395, 397, 398, 401, 402, 407, 411, 419, 421, 423, 463, 464, 468, 470, 490, 503. Attention is particularly called to the deposition of Alfred Dardean, page 322:
Of the seals that we caught off the coast fully 90 out of every 100 had young pups in them. The boats would bring the seals caught on board the vessel and we would take the young pups out and skin them. If the pup was a good nice one we would skin it and keep it for ourselves. I had 8 such skins myself. Four out of 5, if caught in May or June, would be alive when we cut them out of their mothers. One of [Page 109]them we kept for pretty near three weeks alive, on deck, by feeding it on condensed milk.
The deposition of Peter Brown, page 377:
Cows caught in the latter part of May or June have black pups in them, which we sometimes cut out and skin.
The deposition of Thomas Brown, page 407:
We had 250 seals before entering the sea, the largest per centage of which were females, most of them having young pups in them. I saw some of the young pups taken out of them.
The deposition of Joseph Dennis:
I have seen a live young pup taken out of its mother and kept alive for three or four days.
The deposition of George Fairchild, page 423:
We took some of the pups alive out of the bodies of the females.
The deposition of Michael White:
In my captures off the coast between here and Sitka 90 per cent of my catch were females, but off the coast of Unamack Pass there was a somewhat smaller percentage of females, and nearly all the females were cows heavy with pup, and in some instances the period of gestation was so near at hand that I have frequently taken the live pup from the mother’s womb.
And the deposition of T. Williams, page 503.
In the list of skins offered for sale in the London market there appears the classification “black pups.” These are the skins of unborn seals torn from the wombs of their dead mothers.
The explanation given by Captain McLean, therefore, as to the presence of the two skins of young seals on the James Hamilton Lewis at the time of her capture, namely, that the animals had been taken out of the bellies of their mothers, is entirely reasonable and in accord with the well known facts in regard to sealing on the high seas, that young seals are frequently taken from the bellies of their mothers and if their skins are good they are saved. This circumstance of finding these small skins in the catch of the James Hamilton Lewis, far from being evidence of her having trespassed within Russian territory, is in itself evidence of her having been engaged in hunting on the high seas.
The Russian Government has not adduced the slightest evidence to show that the James Hamilton Lewis ever had been within Russian territorial waters at any time. The commander of the Russian cruiser stated in his report that she was not more than 6 miles from Copper Island when first seen and at a distance which he has variously given as 11 and 12 miles therefrom when overhauled. The statement of the captain of the James Hamilton Lewis is that the point of arrest was 20 miles from Copper Island, the nearest land.
In default of evidence to show that she was nearer than 6 miles from Russian land when seen, it must be accepted that she was not and that she was therefore without Russian jurisdiction.
Various claims have been made and various opinions pronounced at different epochs of history as to the extent to which territorial property and jurisdiction may be extended. But the rule of law may now be considered as fairly established, namely, that this absolute property and jurisdiction does not extend, unless by the specific provisions of a treaty or an unquestioned usage, beyond a marine league (being 3 miles), or at a distance of a cannon shot from the shore at low tide, et seq. [Page 110](Phillimore, Commentaries on International Law, 3d edition, Vol. I, Chap. VIII, CXCVIII.)
In any ease, the custom of regarding a line 3 miles from land as defining the boundary of marginal territorial waters is so far fixed that a state must be supposed to accept it in the absence of express notice that a larger extent is claimed. (Hall, Treatise on International Law, 4th edition, p. 160.)
At present the greater number of treaties and the majority of authors on international law regard as the extreme limit of coast seas a line distant 3 English miles from low water mark. This is the distance adopted by the legislations of western Europe. (F. de Marten’s Treatise on international Law, Vol. I, p. 501.).
In the memorandum of the Russian ministry of marine, communicated to the embassy of the United States in the note of the ministry of foreign affairs, dated October 19, 1898, the claim is set up that the James Hamilton Lewis was about 5 miles from land when sighted, and that she was seized at 11 miles from land instead of 12, as first stated by Captain Brandt of the Aleut. It is to be noted that this memorandum was sent in reply to the note of the embassy of July 23–August 4, 1898, in which the physical impossibility of the James Hamilton Lewis having been 3 miles from land when sighted and 12 miles therefrom when overhauled is set forth. It is to be noted that these changes exactly fill the physical conditions marked out as possible in the embassy’s note, namely, giving the sailing vessel thirty minutes, which is the speed mentioned in the embassy’s note as having been attained by a racing yacht; but it must be borne in mind that this is not a speed attainable by fishing and sealing schooners. The speed mentioned is that attained under favorable conditions by a racing yacht with her bottom freshly cleaned for the purpose. The Encyclopedia Britannica, in its article on yachting, states that the yacht Enchantress made 50 miles in four hours eighteen minutes in 1895. This was then the fastest recorded time for an English yacht, and it is at the rate of a mile in five and five-eighths minutes; and Exhibit R shows the recorded performances of some of the fastest racing yachts in the world, and the best of these demonstrates a rate of speed of four and seven-tenths minutes per mile, while the best time made in the celebrated race between the Vigilant and the Valkyrie was six and eight-tenths minutes to the mile. It is wholly without the range of probability that the sealing schooner James Hamilton Lewis was able to make a mile in anything like that time. If her speed is put at a mile in eight or even nine minutes, it will be much more within the probabilities. This, even allowing her to have gone about within five minutes from the time when she was first sighted, which seems hardly credible, and conceding the point as to her having been only 11 miles from land when overhauled, would make her more than 6⅔ miles from Copper Island when sighted by the Aleut.
The arguments presented by the imperial ministry of marine, in the memorandum above referred to, can hardly be accepted as sound international law. In section 1 the assertion is made that the presence in Russian waters of a vessel presumed to be engaged in illicit hunting justifies her pursuit into nonjurisdictional waters and her arrest there. This is exactly parallel with the principle of the British “Hovering act,” in regard to which Phillimore says:
Nevertheless it can not be maintained as a sound proposition of International Law that a seizure for the purposes of enforcing municipal law can be lawfully made beyond the limits of territorial waters, though in these hovering cases judgments have been given in favor of seizures made within a limit fixed by municipal law, but exceeding that which has been agreed upon by International Law. Such a judgment, [Page 111]however, could not have been sustained if the foreign state whose subjects’ property had been seized had thought proper to interfere.
The limit of territorial waters has been fixed at a marine league. The great improvements recently effected in artillery seem to make desirable that this distance should be increased, but it must be so by the general consent of nations or by specified treaty with particular States. (Commentaries on International Law, third edition, vol. 1, CXCVIII, p. 276.)
This high opinion seems to cover the whole argument contained in this portion of the memorandum except the attempt to apply the principle of an international agreement made subsequently to the seizure of the property of the citizens of a foreign State in its justification. This of course can not for a moment be admitted. No law can be retroactive in its force. The agreement between the United States and Russia for the protection of the seal fisheries forms no basis for justification of the seizure and confiscation of a vessel engaged in a pursuit which was previous to this agreement, however unfortunate from an economical point of view, perfectly legitimate at the time.
The second section of the memorandum is devoted to a justification of the suspicion that the James Hamilton Lewis had been or intended to be poaching within Russian jurisdiction. The allegations set forth to justify these suspicions are as follows: Going about on being perceived; persistent refusal to permit a search; incorrect information as to the object of his course and as to the composition of his crew; haste to set to rights what was inside the vessel; fact of concealing 424 skins the results of hunting; presence on board of utensils used in hunting fur seals, as well as two skins of young seals which could only have been killed on shore; refusal to produce the authentic documents of the vessel; vague declarations as to previous hunt on the high seas, etc. Not one of these allegations is basis for a suspicion of guilt, nor is the whole assemblage of them.
“Going about on being perceived”—The vessel having approached sufficiently near to the coast to answer the captain’s purpose, and, according to the Russian statement itself, as near as was wise in view of territorial limits, he put about. That at about that time the Aleut started in pursuit is a mere coincidence.
“Persistent refusal to permit a search.”—There has been no evidence to show any such. On the contrary, all the testimony on both sides indicates that the captain brought his vessel to at once on being signaled to do so, and that he gave every assistance in facilitating a search. It may, however, be questioned by what right the commander of the Aleut proceeded to make a search under the conditions existing, and whether the captain of the James Hamilton Lewis would not have been justified in refusing to permit a search of his vessel. As to the purpose of his cruise and the composition of his crew, they were matters subject perhaps to the municipal laws of the United States, but not of Russia. One is at a loss to understand what is meant by “haste to set things to rights within the vessel.” There has been a statement that something was thrown overboard from the vessel, but what, no one has undertaken to say, and the fact is denied by the captain and crew.
“Pact of concealing 424 skins.”—There is no evidence of this, and it is submitted that it would not be easy to conceal such a mass of salted skins. It seems more probable that there was no very close scrutiny during the first search.
“Presence on board of utensils used in hunting seals.”—This is true. The avowed object of the cruise of the James Hamilton Lewis was the [Page 112]hunting of seals and for this purpose she was fully equipped. But she was equipped for hunting seals on the high seas, not on land, and the list of utensils specified as being found upon her are just those used in pelagic sealing; namely, shot guns and bamboo spears for taking wounded seals. There is, however, no mention of weapons for killing seals on land; this is done with clubs, not guns. The presence of the skins of two young seals has already been fully accounted for, reasonably and conclusively.
“Refusal to produce the authentic documents of the vessel.”—The captain did produce, and at once, all that could be required of him on the high seas, namely, the evidence of his nationality and identity.
The remainder of the memorandum is taken up with an attempt to refute the evidence of the log book. The claim that it is invalid as evidence, because it was not submitted to the ministry of marine until six years and ten months after the seizure, can not be admitted in refutation. Had a court of admiralty been held upon the seizure the log book would have been produced in that court. That such a court was not held is no fault of the claimants’, whose agent, the captain, repeatedly demanded one. The confiscation of a foreign vessel by administrative process, especially when seized upon the high seas, is not in accordance with international rights, and the concurrence of various ministries of the Russian Government in regard to the sale of the vessel in no sense takes the place of a prize court.
The memorandum concludes with the startling statement that “admitting the authenticity of the log-book it does not invalidate the incontestable facts on which was based the decision taken by the Russian maritime authorities.” That is to say, that direct evidence proving an alibi does not refute mere suspicions of guilt unsupported by a single piece of affirmative evidence.
Russia’s claim to a jurisdiction of 5 miles over its marginal waters can not be accepted in justification of the seizure. Were the James Hamilton Lewis first seen at any distance between 3 and 5 miles from Russian land this claim of jurisdiction would not be applicable to the case, for Russia has never by any proclamation or other act given notice to the world of any such claim to marine jurisdiction in the Bering Sea. On the contrary, as shown by the publication of the ministry of marine for 1875, p. 91, submitted in the evidence, the Russian Government sent out a vessel in that year to warn foreign fishing and whaling vessels not to practice their calling within 3 miles of Russian territory.
The James Hamilton Lewis would, therefore, have been justified in taking seals at 6 miles from Copper Island. But in point of fact she was not, nor had she taken any seals for forty hours before the seizure.
And even had the vessel in question been within Russian territorial waters when seen, the purpose for which she had approached Russian land was one, for which she could not be interdicted the use of such waters. She had come in toward land for the purpose of verifying her observations before starting on her homeward voyage. The right of innocent passage by fishing and merchant vessels in territorial waters is incontestable.
In all cases in which territorial waters are so placed that a passage over them is either necessary or convenient for the navigation of open seas, as in that of marginal waters, or of an appropriated strait connecting unappropriated waters, they are subject to the right of innocent use by all mankind for the purposes of commercial [Page 113]navigation. The general consent of nations, which was seen to be wanting to the alleged right of the navigation of rivers, may fairly be said to have been given to that of the sea. Even the earlier and more uncompromising advocates of the right of appropriation reserved a general right of innocent navigation; for more than two hundred and fifty years no European territorial marine waters, which could be used as a thoroughfare, or into which vessels could accidentally stray or be driven, have been closed to commercial navigation; and during the present century no such waters have been closed in any part of the civilized world. The right must, therefore, be considered to be established in the most complete manner. (Hall. Treatise on International Law. Fourth edition, pt. 11, pages 164 and 165.)
The Russian Government has, in the memorandum of the ministry of marine, which accompanied the note of the ministry of foreign affairs to the legation of the United States at St. Petersburg, dated May 18–30, 1896, attempted to justify the seizure of the James Hamilton Lewis on the ground that being a sealing vessel her captain resisting arrest and not having exhibited a log book showing the position of the vessel from day to day but on the other hand giving a statement of the occupation in which the vessel was engaged incompatible with the facts as revealed, and of her having been put about when the Aleut made for her, she had been in all probability engaged in hunting seals within Russian territory. This is a chain of circumstances in no wise incriminating the vessel, her master, or crew.
As a matter of fact, the evidence of the commander of the Russian cruiser itself shows that upon the usual signal the master of the James Hamilton Lewis brought his vessel to and hoisted the American flag, and that upon the arrival of an officer from the Russian cruiser to make a visit and search, he exhibited such documents as clearly indicated the nationality and identity of his vessel. If the right of visit and search upon a fishing vessel in time of peace upon the high seas be conceded, it must on the other hand be admitted that that right had been fully complied with by the exhibition of the papers in question showing the vessel to be sailing under the flag of a friendly State and in no way connected with piracy or any other act cognizable by the Russian Government. Had the Russian Government been in a position to produce any direct evidence of any depredation in Russian waters, or to show any corpus delicti, that any seals were taken in Russian waters by this or some unknown vessel, then there might have been ground for a continuation of the search, and by investigation either connecting the James Hamilton Lewis with such depredation or establishing her innocence.
The captain was perfectly aware of his entire innocence of wrong, and, while being a peaceable man, he was willing to waive any dispute as to the right of search on the part of a Russian war ship upon the high sea. He therefore exhibited such documents as served to show his nationality and identity, including his official log book. He did not deem it necessary to exhibit his private log book, showing the position of his vessel from day to day. This he was the less disposed to do upon seeing his official log book promptly confiscated. His private log book was the evidence on which he might prove, in case of the confiscation of his vessel, that she had not been within Russian territorial waters. It is to be noted, in order to remove the suspicion which the Russian officials have raised, that upon the first visit and search he had exhibited the official log book and other documents to prove his nationality, justly deeming these all the necessities of the case could require. This official log book the Russians had refused to [Page 114]return to him, and it was therefore natural that upon finding his vessel seized and confiscated he should jealously guard the proofs of his innocence of wrong. That the log book exhibited was an entirely valid one for the purposes for which it was intended by the laws of his country the Revised Statutes of the United States show, and it is to be noted that entries of the position of the vessel are not required by law to be made in this book, nor is it customary to make them therein.
Chapter VII, on Navigation, of the Revised Statutes of the United States reads as follows:
- Sec. 4290. Every vessel making voyages
from a port in the United States to any foreign port, or, being of
the burden of 75 tons or upward, from a port on the Atlantic to a
port on the Pacific, or vice versa, shall have an official log book;
and every master of such vessel shall make, or cause to be made,
therein entries of the following matters; that is to say:
- First.—Every legal conviction of any member of his crew, and the punishment inflicted.
- Second.—Every offense committed by any member of his crew for which it is intended to prosecute, or to enforce a forfeiture, together with such statement concerning the reading over such entry and concerning the reply, if any, made to the charge, as is required by the provisions of section forty-five hundred and thirty.
- Third.—Every offense for which punishment is inflicted on board, and the punishment inflicted.
- Fourth.—A statement of the conduct, character, and qualifications of each of the crew; or a statement that he declines to give an opinion of such particulars.
- Fifth.—Every case of illness or injury happening to any member of the crew, with the nature thereof, and the medical treatment.
- Sixth.—Every case of death happening on board, with the cause thereof.
- Seventh.—Every birth happening on board, with the sex of the infant and the names of the parents.
- Eighth.—Every marriage taking place on board, with the names and ages of the parties.
- Ninth.—The name of every seaman or apprentice who ceases to be a member of the crew otherwise than by death, with the place, time, manner, and cause thereof.
- Tenth.—The wages due to any seaman or apprentice who dies during the voyage, and the gross amount of all deductions to be made therefrom.
- Eleventh.—The sale of the effects of any seaman or apprentice who dies during the voyage, including a statement of each article sold, and the sum received for it.
- Sec. 4291. Every entry hereby required to be made in the official log book shall be signed by the master and by the mate, or some other one of the crew, and every entry in the official log book shall be made as soon as possible after the occurrence to which it relates, and, if not made on the same day as the occurrence to which it relates, shall be made and dated so as to show the date of the occurrence, and of the entry respecting it; and in no case shall any entry therein, in respect of any occurrence happening previously to the arrival of the vessel at her final port, be made more than twenty-four hours after such arrival.
- Sec. 4292. If in any case the official log book is not kept in the manner required, or if any entry hereby directed to be made in any such log book is not made at the time and in the manner hereby directed, the master shall, for each such offense, be liable to a penalty of not more than twenty-five dollars; and every person who makes, or procures to be made, or assists in making any entry in any official log book in respect of any occurrence happening previously to the arrival of the vessel at her final port of discharge, more than twenty-four hours after such arrival, shall for each offense be liable to a penalty of not more than one hundred and fifty dollars.
Having complied with all that the law of nations could under the circumstances require of him as regards any right of search Russia may have possessed, the captain did not deem it incumbent on him to accept any orders, to consider himself under arrest, or to go on board the Russian cruiser and give himself up. He simply continued his voyage until he was compelled by force of arms to submit to the arrest and confiscation. The Russian Government has claimed that his failure to surrender his ship was an act of resistance. He made no resistance; he had submitted to search, and he knew that nothing [Page 115]incriminating had been found, and as in duty bound to his owners he continued his voyage until compelled by force to submit to arrest.
The evidence adduced by the Russian Government simply shows that this vessel came into the neighborhood of Copper Island, where, by Russian acknowledgment, she had a perfect right to come, and that she had taken a number of seals, which, so far as Russia is concerned, she had a right to take provided they were not taken in Russian jurisdiction, and that the master evinced a disposition to escape arrest and to evade inquiries. There was no evasion of search, and the evasion of inquiry is only circumstantial evidence of guilt, when an obligation to submit to investigation and to answer questions truly is first established. If the master of the James Hamilton Lewis was overhauled and submitted to interrogation, which the interrogator had no lawful authority to make, his reticence and his indisposition to make a full disclosure can not be given the construction put upon them by the Russian Government. It is to be borne in mind that the master denies these allegations; but, supposing them to be true, they do not even tend to connect the master with any unlawful act in Russian jurisdiction.
There is not a particle of affirmative evidence in support of the contention that the James Hamilton Lewis or her crew ever entered Russian waters, and every evidential fact alleged against her by Russia is entirely consistent with the lawful pursuit of her calling upon the high seas.
Russia has taken an American vessel upon the high seas at least 12 miles from any Russian territory and confiscated her and her equipment. She has arrested and imprisoned the master and crew of this vessel, and after they were released left them to make their way home penniless as best they might.
Such an act could only be justified upon proof of infraction of Russian law. The Russian Government has furnished no evidence whatever of any such infraction. It has simply shown what has never been denied, that the James Hamilton Lewis was engaged in sealing in the waters of the North Pacific Ocean, but there is no evidence to show that the seals taken by her were captured where Russia had the right to control the seal fishing. On the contrary, all the evidence goes to show that the vessel was hunting seals on the high seas far from any land.
The Russian Government has seen fit to throw doubt on the authenticity of the log book of the James Hamilton Lewis, herewith submitted in the evidence, on the ground that it was only produced long after the seizure. It is to be borne in mind that the master of the vessel repeatedly asked for a trial while in Vladivostok, but that this was denied him and, as the Russian Government has itself admitted, the vessel was confiscated with her equipment and cargo on the administrative process. This it is contended is in contravention of the rights of the owners under the principles of international law. They were entitled to have their rights submitted to a court of admiralty. Had the Russian authorities seen fit to grant to the master a trial the log book would have been produced in court, It was the property of the master, and his duty to his owners to whom he was responsible forbade his risking its confiscation under the summary process adopted in taking his vessel by presenting it to his captors. Since the presentation of the case to the Imperial Russian Government through the [Page 116]medium of the diplomatic channels of the United States the log book has been at the disposition of the Imperial Government at any time and, indeed, as the correspondence shows, the document has been repeatedly offered to the Russian Government for its inspection. The delay in its presentation is therefore due to the Russian Government itself, and such delay can in no wise be brought up as evidence of a fictitious character as regards this piece of evidence.
Similarly the testimony of the master and crew as to their treatment during the period of their detention has been thrown aside by the Russian Government, stating that they are mere assertions unsupported by proofs, and that if the members of the crew suffered ill treatment they should have complained at Vladivostock.
In view of the summary proceedings in confiscating the vessel, the ignoring of their protest against its seizure, and the persistent refusal of a trial, it is not easy to see what these men had reason to believe that they would gain by making any complaint to the Russian officials. It would be an easy method of disposing of testimony unfavorable to the case of a litigant to throw it aside as fictitious. All of this testimony, including the log book, is submitted under oath and must be accepted as valid until disproved.
As regards the authenticity of the log book, it bears upon its face every evidence of genuineness. The several entries are all made seriatim without hiatus, ending with a copy of the protest of the master and the statement of the crew, which is signed by every surviving member thereof. As the crew separated after leaving Vladivostok, and as their signatures are all made with the same ink, it is unreasonable to suppose that they did not sign at the time of the seizure or during detention at Vladivostok.
But even if the evidence of the log book be rejected the fact still remains that the James Hamilton Lewis was seized wholly without Russian jurisdiction and without a scintilla of proof that she had ever been within it. She was not even within 6 miles of Russian land when sighted and was coming toward it; therefore she could not have been nearer to it within the knowledge of the Russian officials; though had she been she had the right of innocent passage therein.
No evidence of depredation within Russian territory or territorial waters on the part of the James Hamilton Lewis or anyone belonging to her or by anyone else has been shown.
She had certain seal skins upon, her which, sailing upon the high seas, she had a right to have. No attempt has been made to prove that they were the skins of seals taken in Russian waters, or even that they were skins of seals of the Russian herd, although this could have been easily established by the experts in the fur-seal business had it been so.
The vessel was arrested upon the merest suspicion, which has not only been proven to have been justifiable, but which the evidence herein submitted proves to have been wholly unfounded.
Pirates as hostes humani generis, should be pursued by all nations. It is lawful to arrest, search, and deliver to justice, at the nearest port, even be it a foreign port, every vessel legitimately suspected of piracy. It follows from which that, in the application of this principle, since a ship unjustly arrested is entitled to damages, etc. (F. de Martens, Treatise on International Law, Vol. II, p. 342.)
The burden of proof not only against the log book and the other testimony offered, but against the James Hamilton Lewis itself is on the Russian Government.[Page 117]
The items of damage claimed by the owners, master, and crew of the James Hamilton Lewis, for the seizure and confiscation of their vessel, her outfit, and cargo, and by the master and crew for their imprisonment, are as follows:
|Value of the vessel and outfit||$25,000.00|
|424 seal skins, at $10 each||4,240.00|
|Loss of probable catch of 2,000 skins||20,000.00|
|Claims of men for imprisonment, physical and mental suffering, injury to health, etc., 17 men, at $2,000||34,000.00|
|Nine years’ interest, at 6 per cent||44,949.60|
the measure of damages.
The third item, that for loss of catch, is one for absolutely direct damages arising out of seizure. In the case of the United States vessel Betsey, unlawfully detained by British authorities, the majority of the board of arbitration decided in favor of allowing to the claimant, not only the value of the vessel and her cargo, but also the profits which would have been derived from the sale of her cargo had she been allowed to continue her voyage. The claims of the owners of the Neptune were similarly decided in 1795.
In the case of the American brig Williams, seized by the Mexican Government in 1829, the umpire awarded passage money which would have been received if the brig had been permitted to continue her voyage to her immediate destination, where she expected to receive a cargo of passengers.
The damages claimed for loss of catch of a sealing vessel are in no sense a claim for indirect damages or for speculative profits. In the present case they represent the direct loss sustained by the owners, officers, and crew of the James Hamilton Lewis, owing to her arrest and confiscation while in pursuit of her lawful calling upon the high seas. They are such damages as are usually allowed in analogous cases for losses suffered, as measured by the value of the services of the vessel, her outfit, and crew.
The rule of damages is well settled that in a fishing voyage the loss of the services of a fishing vessel is to be compensated upon the value of the vessel’s use during the voyage interrupted. It is the measure of damage suffered by the parties in interest from the deprivation of the use of their property. It is the same rule of damages as that applied in the case of the seizure of a whaling ship. In the case of the Costa Rica Packet, the distinguished arbitrator admitted the principle of the loss of catch of a whaling vessel as the measure of damage owing to the detention of the vessel.
In the case of the Hope On, detained by the Chilean Government in in 1883 at Talcahuano, the commission of arbitration in rendering its award, said:
The principle is well established in cases like the present, that the loss of the use of the vessel is the proper measure of damages, and the loss of such use is the loss of her probable catch, during her enforced absence from the fishing grounds. (G. B. Borden v. Chile.)
The Bering Sea Commission, in its awards in cases analogous to the present, clearly adopted this rule in measuring the damages sustained by sealing vessels owing to seizure.
The loss of the vessel itself is not the only direct injury sustained by these claimants owing to the confiscation of their vessel. The loss of [Page 118]the use and service of their schooner and her outfit during the season for the purpose for which she was equipped is also to be taken into consideration. This is an injury sustained not alone by the owners, but by the officers and crew as well, who were thereby deprived of the means of earning their living. No one has the right to deprive another of the means of gaining his sustenance in any lawful calling which he may see fit to engage in. Equally, no one has the right by a summary act to divert the earning capacity of the invested capital of another. If the laborer is worthy of his hire, so also is invested capital entitled to its legitimate profit.
The damages sustained by these claimants can not be measured by the value of their vessel and its outfit alone. They had not done wrong to Russia and they were entitled to go peaceably on their way, employing their vessel and their own services in the lawful calling in which they were engaged. When the Russian Government, or its agents, took on itself to deprive them of this right it became responsible for all the consequences of its act. To restore to these parties, at the present time, their vessel or its valve would not be at all to put them back in the position in which they stood at the time of the seizure. Neither would the addition of interest on such payment compensate the parties for their loss. The owners had not embarked their capital in a hazardous undertaking upon the ocean to gain simply such interest as their money might earn at home by its investment in securities. In every well-regulated business undertaking in which capital is involved, the interest upon the capital is deducted from the gross proceeds before profits are declared. As it is now impossible to put the parties back where they were at the time of the seizure, the only just basis of compensation for the injuries sustained by them owing to the seizure is upon a fair estimate of the probable catch added to the value of the vessel and its outfit, together with interest upon the whole. As upon a sealing voyage, the crew are compensated by lay in lieu of wages, such a basis discharges the indemnity due both to them and to the owners.
In the case of the Potomac before the Supreme Court of the United States, Mr. Justice Gray, in delivering the opinion of the court, said:
Both the questions of law presented by the record relate to the amount of the damages that the libellant is entitled to recover.
One question is as to the sum to be allowed for the detention of his vessel while repairing the injuries suffered by the collision. The rules of law governing this question are well settled, and the only difficulty is in applying them to the peculiar facts of the case.
In order to make full compensation and indemnity for what has been lost by the collision, restitutio in integrum, the owners of the injured vessel are entitled to recover for the loss of her use, while laid up for repairs. When there is a market price for such use the price is the test of the sum to be recovered. When there is no market price, evidence of the profits that she would have earned if not disabled is competent. (United States Reports, vol. 105, pp. 630–632.)
In the case of Williamson v. Barrett, before the Supreme Court of the United States, Mr. Justice Nelson, in delivering the opinion of the court, said:
As to the question of damages, the jury were instructed, if they found for the plaintiffs, to give damages that would remunerate them for the loss necessarily incurred in raising the boat and repairing her, and also for the use of the boat during the time necessary to make the repairs and fit her for business.
By the use of the boat, we understand what she would produce to the plaintiffs by the hiring or chartering of her to run upon the river in the business in which she had been usually engaged.[Page 119]
The general rule in regulating damages in cases of collision is to allow the injured party an indemnity to the extent of the loss sustained. This rule is obvious enough, but there is a good deal of difficulty in stating the grounds upon which to arrive in all cases at the proper measure of that indemnity.
The expenses of raising the boat and of repairs may of course be readily ascertained, and in respect to repairs no deduction is to be made, as in insurance cases, for the new materials in place of the old. The difficulty lies in estimating the damage sustained by the loss of service while she is undergoing the repairs.
That an allowance short of some compensation for this loss would fail to be an indemnity for the injury is apparent. This question was directly before the court of admiralty in England, in the case of the Gazelle, decided by Dr. Lushington, in 1844, 2 W. Robinson, 279. That was a case of collision, and in deciding it the court observed “that the party who had suffered the injury is clearly entitled to an adequate compensation for any loss he may sustain for the detention of the vessel during the period which is necessary for the completion of the repairs and furnishing the new articles.
In fixing the amount of the damages to be paid for the detention the court allowed the gross freight, deducting so much as would, in ordinary cases, be disbursed on account of the ship’s expenses in earning it.
This rule may afford a very fair indemnity in cases where the repairs are completed within the period usually occupied in the vovage in which the freight is to be earned. But if a longer period is required it obviously falls short of an adequate allowance. It looks to the capacity of the vessel to earn freight for the benefit of the owner and consequent loss while deprived of her service. In other words, to the amount she would earn him on hire.
(13 Howard, 101.)
(See also the following cases: The Baltimore, 8 Wallace, 377–385; Cayuga, 14 Wallace, 270; Freddie L. Porter, 5 Federal Reports, 822; Vermont, 8 Federal Reports, 170; Brown v. Hicks, 24 Federal Reports, 811; Parsons v. Terry, 1 Lowell, 60; The Notting Hill, 9 Pro. Div., 105–113; The Parana, 2 Pro. Div., 118; The Mary Steele, 2 Lowell, 370–374; The Resolute, 8 Pro. Div., 109; The Clarence, 3 William Reb., 283–286; The Gleaner, 38 L. T. N. S., 650; The Marsden. Collision, second edition, p. 115.)
This rule was applied in the cases of the whaling ships James Maury, General Pike, Milo, and the bark Nile, captured by the Confederate cruiser Shenandoah and compelled to abandon their whaling voyages, in the decisions of the Court of Commissioners of Alabama Claims.
(See also The Walter Phara, 1 Lowell, 437; Stormless, 1 Lowell, 153; Mayflower, 1 Brown, adm., 376; Transit, 4 Ben., 138; Swift v. Brownell, 1 Holmes, 467; The Antelope, 1 Lowell, 130; Bourne v. Smith, 1 Lowell, 547; Frates v. Howland, 2 Lowell, 36; Hussey v. Fields, 1 Sprague, 394–396; Knight v. Parsons, 1 Sprague, 279; 290 Barrels of Oil, 1 Sprague, 279; Backster v. Rodman, 3 Pickering (Mass.), 435,438, 439; Fletcher v. Taylor, 17 C. B., 21; Corey v, Thames Iron Works, L. R. 3 Q. B., 181; Ex parte Cambrian Steam Packet Company, L. R. 6, eq., 396; Cayuga, 2d Ben., 125; Jolly v. Terra Haute, McLane, 589.)
This subject has recently undergone the most thorough and careful examination by the commission appointed to adjust the claims of the Canadian sealers against the Government of the United States, commonly known as the Bering Sea claims. It is scarcely necessary to do more than to refer to the arguments submitted before this tribunal on behalf of the English Government and of the American Government for the most complete and exhaustive review of all the decisions upon the subject.
The English Government contended for the rule as claimed in the present case. An examination of the awards made in certain cases before the Bering Sea Commission leaves no room for doubt that, in [Page 120]those cases at least, the commission adopted the rule as contended for by the English Government and as herein stated. In the awards upon all these claims it is perfectly clear that the loss of catch was allowed in measuring the damages. If there were any doubt of this, it is relieved by such cases as No. 14, the Triumph, where the sole claim was for loss of catch. In the case of the Triumph, No. 14, not No. 11 for the same vessel, the award was $15,500, the original claim was for $19,674, of which $250 was for legal and other expenses, $19,424 being for balance of estimated catch of 2,500 skins at $8 each. It was admitted that the Triumph had transshipped part of her season’s catch before entering Bering Sea on or about July 4, a considerable part of the season had already elapsed and it was reasonable to suppose that she had taken a fifth part of her probable catch before entering Bering Sea, thus 2,000 skins would remain to be taken to make up the season’s work of 2,500 skins. She had on board 72 skins when taken, leaving 1,928 skins to be taken to make up 2,000. One thousand nine hundred and twenty-eight skins at $8 would amount to $15,424, and the award was for $15,450, as has been said.
March 29, 1900.
Port of San Francisco, Cal.,
March 29, 1900.
St. Petersburg, July 11, 1894.
Asiatic Department, May 18, 1896.
Washington, D. C, December 8, 1896.
January 9 (21), 1897.
St. Petersburg, March 16/28, 1898.
St. Petersburg, July 23/August 4, 1898.
October 19, 1898.