Seizure and confiscation of the schooner James Hamilton Lewis.
The American schooner James Hamilton Lewis was detained and confiscated under the following circumstances:
On the 21st of July (August 2), at 4.40 a.m., from on board the screw ship Aleout, Russian man-of-war, coming from the western coast of the island of Medny, and being about 2 miles north of the southern extremity of that island, a sailing schooner was sighted ahead nearing the shore to northeast which was found to be the American schooner James Hamilton Lewis, from San Francisco, under command of Captain MacLean. Having orders from his superiors to effectually protect the Russian fisheries of Bering Sea against foreign marauders, Captain Brandt advanced immediately upon the suspected schooner, which was, judging from the clearness with which her sails were visible, at a distance of 6 miles at the most from the Aleout, and of 5 miles at most from the southern extremity of the island of Medny. (See the points A, B, and C on the appended chart.) Remarking the conduct of the man-of-war, the American schooner veered immediately to the southeast and fled under full sail. The Aleout, increasing her speed, went in pursuit of the James Hamilton Lewis, from the deck of which some objects were being thrown overboard. On approaching the latter at 6.15 the Aleout hoisted her colors and fired a blank shot, upon which the sailing schooner lay to. Lieutenant Lebedew and Ensign Engmann were sent in a ship’s boat to board her, and received at first, by way of explanation from Captain MacLean, that the afore-named schooner was engaged in fishing and hunting of sea birds; that it carried a crew of 25 men, and that it had already delivered the fruits of their industry to another schooner off the coast of Alaska. On investigation it was found that the present crew numbered 22 men in all. In the main hold were evidences of a hasty removal of objects and a washing (a tub with reddened water, covered with a shirt, etc.); also a large quantity of salt in the scantling along the ship’s side and in sacks, with seal skins scattered about. Moveover, upon the schooner were found a great many arms, powder, and paraphernalia for catching seals. In the schooner’s log book delivered by the captain the last entry related to the 7th (19th) of June; the ship’s journal bore no inscription. In consequence of the report of Lieutenant Lebedew as to what he had found, Captain Brandt sent this same officer again with six sailors to the schooner James Hamilton Lewis to notify the captain that the vessel was seized and to order him to report with a portion of his crew on board the Aleout. Not only did Captain MacLean refuse to comply with this order, but made an insolent reply, as did also his mate, MacDonald, and, weighing anchor, attempted to sail away from the boat, seeing which Lieutenant [Page 297]Lebedew fired his revolver in air by way of signaling his commander. The Aleout in great haste fired a cannon shot ahead and gave verbal order to the American vessel to lay to. The latter, however, continued her course in the same direction. A second shot was fired into her rigging, and the order to lay to was repeated, but without result, after which the Aleout, sailing in front of the James Hamilton Lewis, barred her course. The American vessel, after a third shot fired at her starboard side, was overhauled at 11 or 12 miles off the island of Medny and taken in tow. After an inspection in detail of the arrested schooner a large number of seal skins were discovered and a new bag net for catching beaver, and two seal skins so small that from their age they could not have been killed elsewhere than on the shore. Deciding to confiscate the American vessel for illegal fishing in Russian waters, Captain Brandt dispatched her to Petropavlosk and Vladivostok, under the command of Lieutenant Lebedew. Captain MacLean, with the crew, was likewise dispatched by special steamer under surveillance on account of the resistance he had made to his arrest. A statement was drawn up relating all of the measures taken by the Aleout. Captain MacLean set forth his views in his protest of August 12, 1891. (See Exhibits I, II, III, IV, V, VI, and VII.)
objections to the grounds of the case.
All of the facts above mentioned are exactly confirmed by the reports duly submitted by the officers of the Russian man-of-war, by the log book of the latter, by the chart showing the locality where the incident occurred, and by the formal statements drawn up on the subject of the seizure of the American schooner. These documents on account of their contents and of their import can not be invalidated by the allegations devoid of sufficient proofs furnished by persons interested in the case. It is therefore proper to consider as an established fact that the schooner James Hamilton Lewis having in the morning approached the coast of the Medny Island, concerning which restrictive measures had been taken, and being at the most 5 miles off the southern extremity of this island, veered about suddenly on perceiving the Aleout, which appeared unexpectedly in her course; that it endeavored in every way to elude the latter in open sea, and that thanks solely to the great speed of the Aleout it was obliged to lay to, on hearing the warning cannon shot; that Captain MacLean’s first explanations were not truthful and were given the lie at once by the Russian officer, who discovered the true character of the American schooner, having satisfactory proof that the aforesaid captain, seeing himself convicted of falsehood, endeavored to extricate himself by flight, and after a useless resistance to the orders of Captain Brandt, yielded finally to Russian arms; that upon the detained schooner were found hidden evidences of recent seal fishing and two skins of seals so young that they could not have been killed elsewhere than upon the shore of the Commander Island.
All of these facts sufficiently prove that on the 21st July (August 2), 1891, the schooner James Hamilton Lewis was at sea with the secret intention of continuing, off the Medny Island, the occupation of illegal seal fishing, while the product of her former catch was already stored away in the hold of the vessel, and that fear alone of having to answer for his actions explains Captain MacLean’s behavior.[Page 298]
Certainly the important allegations made by the latter that he had approached shore to verify his chronometer could not be substantiated by any of the ship’s documents, calculations, etc. This statement appears as unlikely as his other explanations, which were totally untrue, particularly his statements that the two skins of small seals found aboard were skins of animals taken from the bodies of their mothers which had been killed in mid seas, which are contradicted by the testimony of an expert, the chief of the Commander Islands, rendered upon the basis of an examination of the actual objects under discussion; and for this reason the opinions presented by the claimant on the subject of the modus vivendi of seals of both sexes are not convincing in the matter. Finally, the refusal of the captain to comply with the order of the commander of the Russian man-of-war constitutes strong proof of his guilt of infraction of the order maintained in those parts.
The assertion of the party claimant that the schooner James Hamilton Lewis had not previously entered Russian territorial waters and had but that very day approached the Medny Island merits special attention. This essential circumstance of the affair should be, above all, proven by the vessel itself, more particularly as the Russian officer asked to see the documents which would indicate the previous course of the American schooner in open sea or in proximity to the coast. In any event Captain MacLean, intentionally it would seem, turned over only the official log book, which had no bearing upon the present question, but withheld the daily journal, in which the vessel’s exact course could be determined by the daily entries.
Realizing, therefore, the extreme importance of having failed in this particular and of not having performed his duty, the party claimant then refers in its claim to extracts or copies from the log book, wherein were noted the geographical positions of the James Hamilton Lends at different stages of her voyage, but the original documents remained always in its own hands, and were never shown except during verbal explanations with the representative of the United States in 1898. Finally, owing to repeated demands by the defendant party, on the 21st of May of this same year, that is to say, six years and nine months after the incident of the 21st of July (August 12), 1891, said log book was transmitted to the defendant party, after which, by Russian authority, the following note was made upon the original: “This log book has been examined by the minister of marine and returned to the minister of foreign affairs by an act of August 4, 1898, No. 527.” This inscription is not found in the copy of the document now given to the defendant party, which fact he believes necessary to state here.
It would be difficult to find an explanation giving ground for a favorable interpretation of the fact that the log book of the schooner James Hamilton Lewis, as principal proof of his full right, was not presented at the critical moment of his seizure. The least likely explanation would assuredly be that of lack of confidence, which must have been offensive, on the part of the captain toward the commander of the Russian man-of-war. Still less comprehensible is the delay of the party claimant to present this justificatory document, to which both parties can not fail to attach the greatest importance, in the examination of the claim, and for this reason the defendant must be circumspect in regard to his admission of the authenticity of its contents. [Page 299]Having examined the original in 1898, he was convinced of the utter inapplication of that element of proof to the defendant’s interests. The log book represents a record of the fishing trip of the schooner James Hamilton Lewis. On the title page is written, “Illegally seized August 2 by the Russian man-of-war Aleout.” That is to say, there is a note foretelling that which took place about five months after the departure of the vessel from San Francisco, the 7th of March, 1891. The impression is at once given that this title and the corresponding text were written after the events of which the log book should serve as decisive proofs. This opinion is corroborated by the outward suspicious appearance of the document in question; the inscriptions are made with the same ink, and appear to be copied from some other record; they have not the appearance of inscriptions made on different dates during the entire period between the 7th of March and the month of August, 1891, but all at one time. The added protest of Captain MacLean at the end of the diary and the mention of the number of seals killed at sea in 1891, viz, 424 seals illegally caught, equally testify to the ulterior composition of the document, the value of which could only consist in having been preserved intact, such as it was on the 21st of July (August 2), 1891. All of the above data is convincing that aboard the James Hamilton Lewis at the time of her seizure there were no regular entries as to her daily navigation in the ship’s journal, as has been previously shown in the act of confiscation on the 30th July (August 11), 1891. (Exhibit II.) Consequently the log book presented by the claimant does not furnish proof of an alibi of the vessel in question; on the contrary, it serves as better evidence for the party opposed to the claim. The James Hamilton Lewis had not noted her position at sea on the eve of her seizure, although she was undoubtedly at that time in the proximity of the Russian coast and was engaged in illegal sealing.
In view of these facts, the defendant party concludes that the marauding character of the schooner James Hamilton Lewis in Russian waters is sufficiently proven; therefore the Russian Government confirms the decision relating to the confiscation of the vessel, by its sovereign right, and in defense of its legitimate interests against all infringements thereon.
There can be no question as to the right of the constituted agents to pursue delinquent vessels beyond territorial waters, as was done in the present case, when the war ship sighted the schooner in the proximity of Russian coasts; that is to say, 5 miles from the shore, and overhauled her finally at a distance of from 11 to 12 miles from the Medny Island. Therein the principles of the liberty of the high seas are not violated, as they are understood by the representatives of contemporaneous science.
The question which suggests itself here is the one until now contested, viz, what is the extent of the “territorial sea,” but in this respect it must be remembered that according to the accepted principle of international law, the limits of territorial waters are really deter mined by the possibility for the bordering State to establish its sovereignty over a certain extent of sea constituting a prolongation of its territory. (Terræ dominum finitur ubi finitur armorum vis.) With the resources of defense which nations have at the present time at their command, the perfection of firearms, the complexity of the conditions of existence, need of order, military, financial, and economical, [Page 300]all limitations too narrow for the full manifestation of the sovereignty of a country, as, for instance, the fixation at 3 marine miles as the limit of territorial waters of which the party claimant makes mention, should be considered as arbitrary, devoid of all practical sense, and not serving their ends. In any case, the limits of territorial waters according to the doctrine of international law most recently accepted should be extended not only beyond 3 miles, but even beyond 5 miles, starting from low-water mark. (Session de Paris de 1894 de l’Institut de droit international.)
It would be well, moreover, to take into consideration the particulars of the present case arising from acts whose object it is to legally protect the seal fisheries in Bering Sea. From the facts set forth in detail in the case of C. H. White (third case) it appears that the United States had come to recognize the necessity for exceptional measures in this respect, yet in spite of these exigencies regarding prohibited zones, went beyond that which was deemed necessary by the Russian Government.
The defendant party does not intend to sustain here the point of view of the American Government according to which seals, not being feræ naturæ, are domestic animals having the animus rivertendi characteristic of the latter; but it believes it well to recall that at the time the claimant supported that opinion before the arbitration tribunal of Paris, in claiming a property right over all the seals that frequented the islands of Pribilof, American marauders were exterminating seals on the Russian coasts of Commander Islands. The United States Government then arrived at the conclusion that it was necessary to entirely interdict the killing of seals in open sea (pelagic sealing), with a view to preserving that race of animals in the Pacific Ocean. (Revue de droit international, 1893. Tome XXV, p. 434, etc.) After setting forth the above points, which in the opinion of the defendant party render inapplicable the principles invoked by the party claimant as the basis of the affair, it is useless to enter into an examination of the several points of the claim, limiting oneself to the following remarks:
With regard to the allegations not sustained by sufficient proofs concerning the bad treatment to which the men of the crew of the James Hamilton Lewis may have been subjected, it is well to note that, on the contrary, the men themselves made the most violent’ resistance to the orders of the officers of the cruiser Aleout, by which they made necessary decisive measures on the part of the Russian authorities. The defendant party energetically protests against these allegations which are not proven. To contest this portion of the claim, of which the total reaches the sum of $34,000, as well as the claims for indemnity for losses on the value of the confiscated vessel ($25,000) and her cargo ($5,936), also that in regard to the claim for indemnity for the loss of a probable profit ($36,400) and interest ($54,721.44), It suffices to refer to the explanations given concerning similar questions in the cases of Cape Horn Pigeon, C. H White, and Kate and Anna. (Cases I, II, III.)
There still remains to be mentioned that the compromise recently proposed in regard to the payment of a sum of $82,000 instead of $156,057.44, now claimed, plainly shows that the first calculations of the claimant were not well founded.[Page 301]
In view of all the preceding, the defendant requests that the demands of the claimant be rejected upon all points.
- Report of the commander of the schooner Aleout, dated August 3, 1891, No. 385.
- Proceedings of the confiscation of the schooner James Hamilton Lewis, dated July 30 (August 11), 1891, No. 383.
- Report of Lieutenant Lebedew, July 22, 1891, No. 41.
- Report of same officer dated July 23 of the same year, No. 42.
- Certified copy of the report of the captain of frigate Brandt, October 20, 1891, No. 489.
- Legalized extract from the log book of the schooner Aleout on the subject of her navigation on July 21, 1891.
- Chart showing locality where the incident occurred, annexed to the report, No. 489.
The defendant party places the originals of these documents at the disposal of the arbitrator.