The Cape Horn Pigeon.

As the defendant party in the case of the seizure and detention of this vessel recognizes that an indemnity is due, there remains but to settle the amount of damage interest to be paid to the party claimant.

The party claimant maintains that it is not bound by the claims presented by the captain of the Cape Horn Pigeon as a complete statement of damages suffered. The captain was, at the moment of the seizure and until the moment of arrival in an American harbor, the natural guardian of the interested parties. And it is probable that if the Russian Government had indemnified him according to the conditions which he proposed, that indemnity would have been agreed to by all the interested parties as a compromise. But once the captain’s proposition was rejected it has no more weight, and the claimants are free to present new claims, including damages sustained by them of which the captain had lost sight.

There is no longer any question of how much Captain Scullun or other agent of the claimants may then have asked, but of how much is due in equity to the claimants for the damages they sustained.

1. The opinion of the party claimant that the loss of the catch constitutes the true measure of damage sustained in the loss of service of the vessel is set forth both in the memorandum and in the observations of this rejoinder, which relate generally to the four cases in litigation.

2. As to the claims for indemnity of each member of the crew in the sum of $1,000 for their enforced service in the Russian navy and their compulsory navigation of a Russian armed cruiser, as well as the subsequent bad treatment, it appears that the defendant party finds a repetition of the claim for services of the crew in conducting the Russian cruiser to Vladivostok, which is estimated at $1,200. This is a mistake. The services of the crew in this respect, for which the defendant party admits these men should be remunerated, are entirely distinct from the questions touching the bad treatment or their enforced naval service of a country other than their own.

The defendant party admits that the seizure of the Cape Horn Pigeon was a much to be regretted error, for which indemnity is due. Therefore there is no escaping the conclusion that all restraint inflicted upon these men constituted a wrong done them. This being true, the taking them from their own vessel and placing them as crew aboard a man-of-war flying the flag of a country other their own and obliging them to navigate such vessel was an outrage to them, and failure to recognize the gravity of that outrage would be to open the way to seizure of merchant vessels on the high seas and the impressment of their crews into foreign marine service by every armed cruiser that so desired.

[Page 346]

Concerning the question of bad treatment sustained by the crew of the Cape Rom Pigeon at Vladivostok, the defendant party protests against the allegations of the party claimant in that regard, but is content to quote the opinion expressed by the chargé d’affaires of the United States at St. Petersburg in his note of the 9th (21st) September, 1892 (Exhibit K of the Cape Horn Pigeon), and the allegation that the crew of the whaler was twice and one-half as numerous as that of the cruiser. In the first place, the note of the chargé d’affaires expresses only the opinion, “I trust and believe.” As to the question of numerical strength, it suffices to say the whaler was a merchant ship without armament, which had to deal with an armed cruiser of the Russian navy, with all which that implies.

It appears that in the case in question the defendant party takes the position that the captain and crew should have made resistance to the seizure, although in the case of the James Hamilton Lewis this same resistance is cited as wrong as well as proof of guilt.

The defendant party expresses the opinion in the counter-memorandum that all of the members of the crew of the Cape Horn Pigeon were not Americans, and that the claims of such among them as were of other nationalities should be presented by their respective Governments.

The party claimant contests this view. The sailors who embarked upon the Cape Horn Pigeon were entitled to the protection of the United States flag which it carried. The owners of the vessel are the guardians of the members of the crew for their share of the catch, or of the indemnity allowed in lieu of it, as also for all compensation they may receive, and the United States Government, whose duty it is to protect sailors who embark under her flag, is not relieved of her obligation toward them until she presents their claims for indemnity for losses and wrongs suffered by them. These claims are not presented by the members of the crew, but by the United States Government. There were no Russian subjects among the crew of this vessel, and the party claimant submits that as guardian of the interests of these men in this respect it is for that nation whose flag was violated to pre sent their claims, and not for the several Governments to which these men respectively owed allegiance to do so.

This principle was recognized in the affair Trent, where an English packet was seized in open sea by an armed cruiser of the United States and two persons among the passengers were seized by a belligerent. It was admitted that the Government of Great Britain had the right to demand restitution of these persons into its jurisdiction, which was accordingly done.

The conditions of the protocol do not fix the limits of nationality of the claimants, but on the contrary it states that the two high contracting powers are of accord in submitting to arbitration the case of the whaling vessel Cape Horn Pigeon, her shipowners, captain, officers, and crew. The arbitration is declared to be between the two Governments. Thus the Government becomes the guardian of the interests of all the crew without distinction of nationality.

3. Regarding the claim of $1,200 for services of the officers and crew of the Cape Horn Pigeon for navigating the Russian cruiser, the claimant party refers again to the arguments on this subject contained in the memorandum, wherein the grounds for this claim are set forth.

What the captain demanded when he was in a position to act as agent [Page 347] for the claimants should have no consideration here. It is rather a question of what is the just and equitable indemnity for the services rendered in this regard that is in litigation. The admission of the defendant party that a sum of $1,000 for indemnity is due shows very clearly that the ordinary wages of the sailors are not considered sufficient compensation under the circumstances. The defendant party assents to the round sum demanded by the captain, but does not indicate how that sum should be distributed among the crew.

4. The sums of $200 for provisions consumed, and $210 for lodgings, and $50 for the personal expenses of Captain Scullun are not disputed.

5. As to the principal of $3,040 the claimant party must again refer to the memorandum wherein the details of this total are fully set forth.

6. The matter of interest not having been disputed as a principle, the party claimant does not think necessary to return to that portion of the claim.

To sum up, the party claimant reiterates the demand for indemnity for damages which are set forth in the memorandum for the seizure and detention of the Cape Horn Pigeon, her officers and crew, by submitting to the honorable arbitrator that the defendant party has failed in any way to rebut the evidence presented in the memorandum in support of these claims stop. The party claimant asks therefore that the total amount of indemnity claimed be granted, including interest from the moment of seizure until the day of the receipt by the party claimant of the amounts which may be allowed.

Regarding the question of the duty of the United States Government to protect the sailors of the Cape Horn Pigeon who were not American citizens, the defendant party cites the sentences of the Court of Claims for the settlement and distribution of the sums allowed in the arbitration at Geneva on Alabama claims.

According to the act of 1874 no claim was admitted “arising in favor of any person not entitled, at the time of his loss, to the protection of the United States in the premises.”

The court decided that this did not exclude men enrolled, at the time their claims were brought up, in the merchant marine or in whaling vessels under the United States flag, such men being entitled to the protection of the United States even though they be foreigners not naturalized.

The court decided, however, that this rule does not apply to English subjects, for it did not intend to make, them beneficiaries in the amount of indemnity granted. (Report of John Davis, clerk of the Court of Commissioners of Alabama Claims; case of Benjamin Worth v. The United States, opinion of Judge Ray nor in the same court.)