Seizure of the American whaling bark Cape Horn Pigeon.
The American whaler Cape Horn Pigeon was seized in the Okhotsk Sea, and released at Vladivostok under the following circumstances:
On the 29th of August (10th September), 1892, at 3 a.m., in 46° 33’ latitude north, and 146° 30’ longitude east, from aboard the schooner Maria, seized by the Russian man-of-war Vitiaz for illegal seal fishing, and sailing under command of Lieutenant von Cube, was sighted the whaling bark Cape Horn Pigeon lying to, and which, at the approach of the schooner, hoisted red and white lights. Lieutenant von Cube knew that in the western waters of the Pacific Ocean there were vessels which remain at certain distance from the seal fisheries during the season, and fill the roll of store ships, receiving the cargoes of schooners which engage in that industry and which they furnish with provisions. From the appearance and the conduct of the Cape Horn Pigeon, the commander of the Maria took her for one of these vessels. On questioning Captain Scullun, Lieutenant von Cube learned that the lights hoisted were a signal agreed upon for the American schooner Mary H. Thomas, which was engaged in whaling and sealing, and that Captain Scullun himself had been emphatically refused permission by the Russian authorities to engage in whale fishing in the bays of the Sea of Okhotsk. He moreover ascertained other details concerning the relations of said bark with the sealing vessels off the Tuleny Island. He found upon the bark the remains of two whales killed, and he was satisfied by the points indicated upon the navigation chart that the Cape Horn Pigeon had entered the gulfs of Aniva and Patience, lingering during the hunt principally in the proximity of the Russian coast.
By reason of this data the Russian commander suspected the American vessel of being engaged in an illegal industry, but finding it impossible to search the vessel and thus confirm the fact upon the spot, he decided to conduct the bark to Vladivostok; to this end he transferred to said bark his own small crew of 12 men, and took with him Captain Scullun. The bark’s crew, composed of about 30 men, he ordered to repair to Vladivostok also, aboard the schooner Maria. (See detailed account of the incident, Exhibits Nos. I and II.) When the two vessels arrived at the port of Vladivostok a special commission was immediately appointed by an order of the commander of the Pacific squadron, which, having inspected the bark Cape Horn Pigeon, examined the log book and other documents relating to the case, acknowledged the measures taken by Lieutenant von Cube to be entirely regular. It was shown among other things that the Cape Horn Pigeon had been in communication at sea with the schooner Mary H. Thomas and had begun the chase of the first whale at a point 5 miles off the island of Askold; but in the absence of duly established proofs of [Page 288] incriminating facts, the commission did not find sufficient motives for the confiscation of the detained vessel (Exhibit III). In consequence of this finding by the above-mentioned commission, and in virtue of a decision by superior authority, the American bark was released and restored to Captain Scullun on the 15th of September, 1892 (Exhibit IV).
From the preceding it appears that Lieutenant von Cube, having in view the governmental instructions to protect the seals from the operations of poaching vessels in that region, and having strong presumptions against a vessel apparently suspicious, had no alternative but the fulfillment of the duty imposed upon him to subject the American bark to a preventive detention pending an exhaustive examination of the matter at the nearest port. Nevertheless, admitting that in the present case a regrettable error has been made, and that in connection with a friendly power the Russian Government recognized its responsibility to grant an equitable pecuniary indemnification for the material losses caused to these alien subjects by acts of agents of the Government, as has been declared on several occasions to the American Government. (See annexes to Memorandum of the United States, Exhibit I, etc.) The principle of international right regarding the liberty of the high seas advanced by the party claimant has no claim to consideration here, and the question is limited solely as to the extent of indemnity which remains to be assigned to the injured parties for the temporary arrest of the bark Cape HornPigeon.
amount of indemnity.
Passing to the question of the amount of indemnity, the defendant party finds it necessary to observe here that in the first place the chief grounds for examination as to the justice of the claims presented by the interested parties should be that furnishing the total of loss sustained, which was presented by Captain Scullun on the 15th of September, 1892, and which was sustained by the United States legation (American Memorandum, Exhibits P, Pa, etc.). The amount of indemnity claimed was then established under the still existing impression of facts just as they occurred, and thus merits more consideration than the claim advanced about eight years after the events had transpired.
Regarding the details of the claim, the defendant party deems it proper to submit the following:
1. The chief point is manifestly the one which relates to the claim for indemnity for the loss of profit which the whaler might have realized from the catch—that is to say, from the taking of five or six whales valued at $45,000. It does not appear to be reasonable to enter at this time into the quesion of these hypothetical estimates as to the possible number of whales killed at certain periods of the year, and of the possible profits which might have been realized by the bark’s crew from certain accessory products of the catch of these animals eight years previous. Moreover, only the depositions of persons interested, or the testimony of persons known to them and obtained outside of judicial course, are admitted as proofs in the matter. The defendant party could not recognize that there is any just basis for the claims on this point. Although, according to the generally accepted views of civil rights, the indemnification for injury done to the property of others relates not only to the material damage (damnum emergens), [Page 289] but also to the loss of profit (lucrum cessans); the latter must be understood in the sense of deprivation of a fixed revenue or of a certain profit to be derived from holdings in question (for example, such as the appropriation of another’s goods, or of the damage occasioned to a vessel laden and on the point of departure). In the present case it is a question of the profit of an enterprise liable to risks, which may at any moment terminate in the loss to those who participate in said enterprise. It would be impossible to place an exact valuation several weeks previous upon that, whereon the result depends upon a fortuitous success; when starting upon a hunt exposed to dangers, one could not estimate in advance the product of said hunt; one could not affirm that another might not have the benefit of these very same whales which the Cape Horn Pigeon alone hoped to capture. As to the statistical deductions advanced, and which extend over a long period, they do not seem adapted to a civil proceeding relating to a precise fact as in the present case.
Nor do the arguments of the party claimant seem justified, either by the precedents cited and which relate to cases arising under other conditions. To the present case might better be likened the decision of the arbitration tribunal of 1872 in the Alabama claims, decision upon which was established the general principle that claims for indemnification for indirect damages can not be allowed. This incontestable principle of jurisprudence was practically applied in 1895 in a similar case, that is to say, in the case of a claim brought against the Russian Government by the British Government for the seizure of the Canadian schooners Willie Mac Gowars and Ariel. The Russian Government in declaring a willingness to indemnify the actual loss caused by the seizure of the American bark Cape Horn Pigeon rejected all responsibility for hypothetical losses occasioned by the vessel’s temporary cessation from whale fishing (note of minister of foreign affairs of Russia, June 12, 1893, Exhibit I). For the above-mentioned reasons the demands of the party claimant looking to obtaining indemnification of $45,000 for loss of catch should not be granted.
Still less justified seems the demand for indemnity of $31,000 for enforced service of 31 men of crew of Cape Horn Pigeon aboard the schooner Maria, and for the bad treatment to which they were subjected on shore by the authorities of Vladivostok. In the first place, it must be stated that therein is a repetition of claim for indemnity by the same crew for service rendered in conducting the schooner Maria to Vladivostok ($1,000 to $1,200), a claim which was originally filed by the interested parties in 1892. But the chief objection is that all of the allegations on the subject of acts of violence and cruelty committed against these aliens rest solely in complaints made by the parties concerned without the requisite proofs. The Russian Government protests energetically against these allegations, and refers in this particular to the view taken by the representative of the United States himself. (Memorandum, Exhibit K.) Suffice it to recall that when the two vessels met at sea the American crew was twice and one-half as numerous as that of the Russian vessel; that Captain Scullun refused the lodging offered him in the town, presenting a bill for the entertainment of his men on shore, and that advice of the incident of the Cape Horn Pigeon was at once sent to St. Petersburg. Moreover, as appears from the list joined to the memorandum (Exhibit C) among the crew of the Cape Horn Pigeon, there were, besides the American [Page 290] citizens, Spaniards, Portuguese, English, Danes, Dutch, Swedes, and Germans, in defense of whose rights their respective Governments should intervene. However that may be, such claims would require positive proofs, which in the present case are absolutely lacking.
Relative to the two points above mentioned it may be remarked that they represent the greater part of the indemnity claimed, and that still more than $40,000 interest for the nine years must be added. It would also be well to examine that claim with particular care, without relieving the party claimant from the onus probandi required upon all the points.
3. As to the claim for indemnification of the bark Cape Horn Pigeon for conducting the schooner Maria to Vladivostok, it is admitted as just to the amount of $1,000 conformedly with a declaration made at the time by Captain Scullun, but not to the amount to-day unduly augmented to the sum of $1,200.
4. Neither does the defendant party contest the party claimant’s demand of $200 for living expenses; $210 for lodgings, and $50 for the personal expenses of the captain.
Regarding the total amount for general expenses of the shipowners, estimated at $3,040, the defendant party maintains the opinion already expressed, viz, that the claimants should be content to receive, as general surplus, a sum of $1,040, since they have not presented vouchers covering this point (telegrams, correspondence, etc.), and that at present they refer still to expenses for the future conducting of the case; that is to say, they recognize themselves that their estimates were not entirely accurate.
5. Finally, the addition of legal interest, as has already been shown in the counter-memorandum, is recognized as perfectly regular from the moment when the party claimant may exact the payment of the principal that may be due.
There remains still one observation to be made. Although the party claimant has reserved liberty of future action, still in proposing lately to close the affair by a payment of $42,000, without interest (instead of $124,278 at present claimed), he manifestly expressed a doubt as to the convincing character and the accuracy of the estimates presented by him (note of 17th January (2d February) 1899, Memorandum, Exhibit T).
Conformably with the preceding, the defendant party acknowledges its obligation to pay by way of indemnity the sum of $2,500 ($100, $200, $210, $50, $1,040) with interest at 6 per cent from the 15th (27) September, 1892, and requests that the other claims be rejected.
Protocol of the seizure of the bark Cape Horn Pigeon, dated the 29th August (10th September), 1892. II—Report of the Russian officer having command of the schooner Maria, dated 7th September, 1892. III—Proceedings of the commission appointed by order of the commander of the Pacific squadron, dated 11th September, No. 100; and IV—Report of the commander of the cruiser Vitiaz, dated 15th September, 1892, No. 389.
The defendant holds the originals of these documents at the disposition of the arbitrator.[Page 291]