Surrejoinder of the party defendant.

The Imperial Russian Government having noted the rejoinder of the party claimant to the Russian counter memorandum in the affairs of the American vessels, Cape Horn Pigeon, James Hamilton Lewis, C. H. White, and Hate and Anna, has the honor to submit the following to the honorable arbitrator, Mr. Asser:

In setting forth in its counter memorandum the condition of facts regarding the reciprocal relations of the interested parties in the matter of the protection of the seals at the time when the aforesaid cases occurred, the defendant party called attention to the view that in this litigation it is not alone the opinions of eminent writers on international law on the subject of bordering marine jurisdiction which should be considered.

The defendant party believes itself all the more authorized to do this since the rules of procedure in the arbitration agreed upon between the two parties expressly stipulate that the arbitrator shall be governed in his award not only by the general principles of international law but also by the spirit of international agreements applicable to the subject. In the opinion of the defendant party the opinions cited by the writers in question have rather a theoretical bearing; but there are numerous cases where governments in view of certain interests and of administrative considerations have been obliged in special cases to recognize other solutions of the question of marine jurisdiction. The Government of the United States, the party claimant in the present action, has set up, with regard to the right of jurisdiction in this same Bering Sea, claims extending to much greater limits toward the British Government, as is shown in the acts of the tribunal of arbitration of Paris of August 15, 1893. The fact that the award of the tribunal did not recognize the legality of the said claims does not imply that such was not then the opinion of the United States on the subject of right of jurisdiction. In submitting in advance to the decisions of the arbitrator in 1893, the American Government only conformed to the attitude which each party takes when it resorts to arbitration. It is this same attitude of deference to the decision of the person chosen as arbitrator that the Imperial Government very naturally takes also in the present case.

As to the precedents evoked in the successive memoranda of the party claimant and which are invoked in support of the American demands the defendant party believes it necessary to make it evident that they could only have a consultative bearing. If one arbitrator in a given case renders his decisions inspired by certain principles another arbitrator even in a similar case may be guided by different views. In arbitrations jurisprudence, having the same sanctioning force of law as the sentences of the respective supreme courts in each country, does not exist. It is possible that this may be up to a certain point the case [Page 366] in the future when the court of arbitration at The Hague, recently instituted, may be called upon to pronounce in a sufficient number of cases giving rise to litigation between governments on contended questions. But, as at present, the awards of arbiters have not been in any manner codified, and as each one of them has ruled on the view of principles of equity which have seemed to him applicable to each particular case, so in the present litigation the defendant party believes that it is justified in demanding that the case of the American vessels in question should be examined in the light of and taking into consideration the special and very exceptional conditions of the question of the protection of seals at the time when the seizures took place.

As in civil law, furthermore, recourse to arbitration is recourse to equity, and it is therefore that the parties agree upon it to settle difficulties.

Although this is no place to state the considerations of equity which may have guided the tribunal of 1893, still it seems admissible to state that in rightfully ruling against the pretensions of the United States to jurisdiction over the eastern half of Bering Sea it admitted that in fact, on a basis of agreement, this jurisdiction might be extended to 60 miles from the American shores of the Pribilof Islands. There was here set forth an exceptional situation. This gave, in a spirit of equity, a certain satisfaction to the claims of the two parties responding to the local necessities.

It is true that the present defendant party was not a participant in the arbitration of 1893; it had not for its part claimed at that time a right of jurisdiction over the western part of Bering Sea equal to that claimed by the United States over the eastern half, but the United States then set up the right of substitution, occupying the place of Russia which formerly, when it still possessed both sides of the said sea, considered it as closed. Russia had ceased to claim a right of total jurisdiction before even she ceded the territory of Alaska to the United States. If the United States obtained, as the result of the arbitration of 1893, the recognition of a jurisdiction of 60 miles around the Pribilof Islands, is it in virtue of the argument that Russia could not set up the claim for her part if she had found it advantageous, since the situation in the eastern part of Bering Sea is not analogous to that of the western part? The arbitration of 1893 only admitted in favor of the United States the interdiction of sealing to the extent of 60 miles around the American coasts in virtue of considerations applicable to the entire sea—that is to say, to the Russian coasts as well as to the American coasts—and not at all because of a special title of America or of a different situation on the west coast than on the east coast. On a basis that that had become its right as one emanating from that of Russia, the present party claimant could only consider the right of the Russian Government as at least equal to its own. The award of the tribunal of 1893 took into consideration the exceptional situation of the American Government with regard to the protection of its interests in the Bering Sea; but the American Government, which took its stand on the ground of its rights and which set forth the existence of the act of cession in 1867, was not in a position to contest before 1893 that the right of Russia was preexistent, and therefore that the Russian Government could not sustain on her side the same pretensions.

Since the award of the tribunal of 1893 in the difference between England and the United States was rendered (Exhibit A) Russia has [Page 367] not claimed for itself a jurisdiction of 60 miles around its shores in the Bering Sea as that recognized for the United States. It had already taken, previous to this, certain measures, such as sending Russian cruisers into these waters. As early as the year 1881 the chief of administration of the Commander Islands had published in Japan a notice stating the interdiction for the year 1882 of hunting sea animals in the waters of eastern Siberia under pain of confiscation of vessels. A similar notice was published at San Francisco to bring these measures to the knowledge of Americans engaged in the said hunting.

But after an influx of English and American marauders in 1891, when, in consequence of the arrangement of that year between the United States and England, sealing in the eastern part of Bering Sea was interdicted, the measures of protection by Russia were already reenforced. In 1892 the Russian Government instituted a commission under the presidency of Privy Counselor Kapoustine for the purpose of establishing the necessary measures to prevent the extermination of the seals. The commission was inspired in this respect by the principle of force majeure and the protection of the legitimate interests of Russia. Without ignoring the utility of a subsequent international arrangement, which it had on the contrary recommended, it was of the opinion that it was necessary to take certain original measures to interdict foreign vessels from sealing to the distance of 10 miles along the Russian coast and 30 miles along the Commander Islands and the island of Tuleni. The necessity of these two measures had become imperious because of the very exceptional condition or situation caused to Russian industrial companies engaged in sealing by the great number of Canadian and American poaching vessels.

At the time when the commission published its notice—that is to say, January 17, 1893—the tribunal of arbitration of Paris had not yet rendered its award. The United States maintained before that tribunal pretensions very much greater with regard to marine jurisdiction, and the general attitude taken by the American Government as regards the interest of the preservation of seals did not admit of the doubt that it entertained the views advanced by the Government of Russia and approved as minimum the measures taken by the latter, if indeed it did not find them quite insufficient. The question of fixing the right of jurisdiction of the United States was then in suspense, and England, previous to the session of the commission of Kapoustine, while taking the view that the jurisdiction of Russia in the western part of Bering Sea only extended to strictly territorial waters, recognized that the interdictions were in doubt as to the limits of the extent of sea where sealing was interdicted by the Government of Russia.

The Imperial Government simply informed the British ambassador of the decisions which it had taken following the notice of the commission of Kapoustine, and the English Government declared its right to enter into an agreement on this basis, and it was thus that it was concluded by an exchange of notes in 1893 with England relative to the protection of seals in the western part of Bering Sea; but at this time the exceptional character of the situation was again brought by the Russian Government to the attention of England by means of a declaration made simultaneously with the exchange of notes that Russia did not intend to prejudge the right of a state to extend bordering jurisdiction in certain special cases beyond the limit of strictly territorial waters. As to the Cabinet of Washington when it received the [Page 368] communication of the Anglo-Russian agreement, it seemed insufficient, in view of the general interest of the protection of seals, since it demanded from the Russian Government to suspend execution of the decision taken, since its publication might have an unfortunate effect on the success of the claims presented to the tribunal of arbitration of Paris by the Federal Government. As a result of subsequent negotiations after the tribunal of Paris had already rendered its award and other combinations for a general agreement on the subject were put forward in succession, Russia concluded with the United States a similar arrangement with that with Great Britain. This arrangement bears the date of April 22 (May 4), 1894 (Exhibit B). The Russian Government, furthermore, made to the United States before concluding this arrangement the same reservations of principle as those made to England and which are mentioned above.

The effects of diplomatic order or of Russian interior administrative order which preceded the conclusion of the said arrangement are here set forth in Annex 1 to the present surrejoinder.

Unquestionably the Russian Government does not invoke in the present litigation the very letter of the arrangement of 1894, indeed article 5 of the act in question excludes all possibility of giving it a retroactive force in the literal sense of the term. In the course of the correspondence exchanged between the two cabinets with relation to the seizure of the four American vessels the Imperial Government has not acted on the ground of that agreement, which was made previous to the seizure. At the present time also as party defendant it limits itself to stating the situation of facts at that time which by prolongation obliged the resort to force majeure and the right of defense of legitimate interests; it also states that in 1891 and 1892 the United States partook entirely the Russian point of view on the subject of exceptional measures for the preservation of the seals and set forth to the British Government with regard to the protection of these animals the arguments which the Russian Government invoked also on its part except that the latter objected to the claim of jurisdiction over an entire half of Bering Sea; the defendant party might therefore object to the party claimant that who claims the most ought to recognize the lesser claims made at the same time.

The defendant party states further that the Government of the United States could not consider the western half of Bering Sea as being under different conditions from the eastern half and it in the course of the negotiations themselves offered to engage to apply to the western extent of the said sea the conditions of the award of Paris with all its consequences. And it is for these reasons that the party defendant believes that it may rest upon the rights accorded to it by the awards of the arbitration of August 26 (September 8), 1900, making itself a party under those general principles of international law which include equally force majeure and the right of legitimate defense and in invoking the spirit if not the letter of international agreements applicable to the subject this spirit extends to the entire assembly of points on which basis is made manifest the solidarity between the two Governments in the course of the development of this question as it is related in Annex 1.

The condition of facts as they presented themselves at that time was as follows: The two Governments had an equal interest in the efficacious and energetic suppression of poaching. But there stood in the [Page 369] way of this suppression the extent of space to patrol, the necessarily limited number of war vessels for the right of capture, a number which even if it was augmented would never be able to be entirely sufficient, finally the paucity of inhabitants of the shores. The following is a list of Russian vessels of war charged with the services of patrol in the western part of Bering. Sea from 1891 to 1895: The schooner Aleout, which left Vladivostok for that purpose June 29, 1891, the cruiser Zabiaka, in 1892, the cruiser Zabiaka and the transport Vakout in 1893, the cruisers Zabiaka and Razhoinik, as well as the transport Vakout in 1894 and the transport Vakout in 1895.

With regard to the destructive action which the poaching vessels then exercised the party defendant can not do better than to refer to the exhibits presented by the Government of the United States to the tribunal of arbitration of Paris; the considerations which they present with regard especially to the mode of life of the seals which rendered it particularly necessary to protect the females. The condition of facts as regards this destructive action is even set forth in Annex 2 of the present rejoinder.

It is indeed on the manner of life of the seals that the delegates of the United States to the tribunal of arbitration of Paris in 1893 based a part of their claim of the right of property of the American Government in these animals whether within or without the limit of territorial waters. The award of the tribunal did not admit this right, but in fact, as has been said before, it look into account the peculiar situation of the United States. This theory was formulated again in the brochure, which the American delegates, Messrs. Morgan and Harlan, published on their return from the tribunal of arbitration, and which contains an exposé of the points of view held by them in the name of their Government. The brochure is entitled Bering Sea Tribunal of Arbitration—Opinions of Mr. Justice Harlan and Senator Morgan. Here is a résumé of these opinions:

The seal herds which frequent the islands of St. Paul and St. George in Bering Sea when they have reached the ocean outside of the ordinary distance of 3 miles from the coast constitute the property of the United States; and when these animals, according to their natural habits, betake themselves to the above-mentioned islands for the purpose of reproduction the United States in their capacity of proprietors of these islands and of the animals which occupy them have the right to apply for the defense of the seals, against their capture at sea, measures, the application of which is the right of private individuals, for the safe-guarding of their interests (pp. 186 and 204).

Independently of the right of property in the herds the United States in their capacity as proprietors of the industry exercised by their authority on the islands of St. Paul and St. George, and in virtue of the right of self-protection, are justified in employing such measures, including force, which may be necessary to prevent those acts which would result in the inevitable rapid extermination of this race of animals forming the object of that industry (p. 205).

In the second part of the brochure is found set forth the opinion developed by Mr. Morgan before the tribunal and according to which the rights of the United States with regard to the seals are the same as those formerly enjoyed by Russia.

Mr. Morgan maintains that Russia has enjoyed its right of property with regard to the seals, exercising supervision over them in Bering [Page 370] Sea and according to aliens certain privileges for making profits from these animals (p. 52). The property of the United States is established on the following basis:

• First. The right existing ab initio and transmitted by Russia for the act of the state and of its nationals.
• Second. The right of making laws to provide for the internal administration in a country without prejudice to the fact that the seals quit the islands for a certain length of time to search for food or even to pass later into the Pacific Ocean.
• Third. The habits of the seals and their natural tendency, which obliges them to go to the Pribilof Islands.
• Fourth. The necessity of governmental supervision over the seals to prevent their destruction. This supervision could not be effectively exercised except by the State on the territory where the animals are born and become its property resona.
• Fifth. On the practical possession during ninety years (p. 55).

Under these circumstances the party claimant can not contest that if it acts in the present litigation as claimant in favor of certain of its citizens the defendant party represents the rights and interests of the Russian State, which, according to the theory maintained by the American delegates at the tribunal of Paris, have been injured by the acts of the persons engaged in hunting on the high seas, as shown in Annex 2. As is set forth in the said annex the acts committed by these vessels have brought los upon the concessionary Russian company in their rights in the seals of Commander Islands, and consequently upon the Russian treasury, which has been obliged to reduce in consequence the agreements entered into by the treasury with that society.

The defendant party states that in the presence of the natural difficulties which the business of preservation of the seals presents the Russian Government has always believed that it should not add new obstacles by a too narrow interpretation of the right of seizure under urgent conditions to those already existing. In 1891 and 1892 there was need of immediate action, and the very dispositions arrived at after the meeting of Kapoustine’s commission were judged later to have been insufficient. The Russian Government did not cease to call the attention of the British Government to the necessity of a less narrow interpretation of the right of seizure, and it could not be convinced that the Cabinet of Washington was inspired by narrower principles in this interpretation.

The condition of facts at this time responded then entirely to the case of force majeure and of legitimate defense, and if the arrangement of 1894 could not be considered as having literal and retroactive effect the Russian Government, which had enunciated before the conclusion of this agreement its reservation of principle to the American Government, had always insisted that the entire preceding negotiations and the general understanding on the subject in the case would be maintained.

When the Government of the United States brought up the question of indemnity for the American vessels seized by the Russian cruisers for poaching, it was this same spirit which the Russian Government invoked in the examination of these cases. The Cabinet at Washington, in December, 1895, requested to be informed as to what are the limits which the Russian Government claims for right of jurisdiction [Page 371] in the waters of the Bering Sea. The imperial minister of foreign affairs, in a note dated the 5th (17th) of January, 1896, replied that the right of jurisdiction which Russia claimed is that stipulated in the arrangement of April 22 (May 4), 1894, concluded with the United States. No doubt the interest which the American Government had for the repression of poaching as efficaciously as possible, the minister of foreign affairs added, the United States itself claimed before the tribunal of Paris a jurisdiction still wider.

The note concludes in invoking force majeure and the right of legitimate defense in support of the seizures. (Exhibit C.)

It is this same spirit which inspired the previous communications, which the Imperial Government again invoke in this present controversy.

The party claimant has alleged in its reply to the Russian counter memorandum that the party defendant has maintained that the modus vivendi of 1891 between the United States and England was applicable to the present arbitration. The party defendant stated that owing to the conclusion of this modus vivendi there resulted a considerable influx of poaching vessels into the western part of Bering sea, a circumstance which obliged it to reenforce its measures of protection.

With regard to the question of damages again set forth in the abovementioned response of the party claimant, the defendant party believes it its duty in the first place to refer to the general considerations developed above concerning the bearing of precedents in disputed questions submitted to arbitration. Without reverting to the opinions with regard to damages in certain previous arbitral decisions the defendant party renews the point of the consideration of the views set up by it, viz, that in the business of hunting the profits are entirely contingent. By its very essence and taken in the most general sense, the product of the chase is res nullus and only belongs to an individual when he is actually in possession of it; effective possession is only recognized when the game has been killed. There are doubtless preserved hunting grounds, and the state may take measures to regulate hunting or fishing within the limits over which its rights extend; but in the ordinary rule the ownership of a private individual only commences with possession. According to the laws of different countries on the subject, suppose that two hunters have followed the same wild boar; it does not belong to one of them until he has effectively got possession of it; it is not even sufficient in order to create property that he should have wounded it. It seems, therefore, to the defendant party that since in the matter of hunting there can only be property when there is actual possession, there can only be indemnity by the deprivation of something which belongs to another.

But if in general when it is a question of hunting living game without a fixed establishment the animal ought to be regarded as res nullus, and consequently its ownership is one acquired by an individual only when he has killed it. In the special case of seals by the nature of their [Page 372] existence indemnity for indirect damages seems still more inadmissible. The defendant party considers that in this respect it may refer to the opinion cited before of Messrs. Morgan and Harlan, who continued to consider, even after the arbitral award of 1893, the seals as being the property of a state on the territory on which their periodical establishment is. If account ought to be taken of this theory, and in the present case the defendant party supposes that the party claimant could not deny it, having formerly sustained it, the deprivation of hypothetical profit resulting from the nontaking of that which in place of being simply res null us and of not yet having in his possession, belonging, indeed, to another state, which was obliged to preserve it, could not afford basis of an indemnity.

The fact that the modus vivendi concluded between England and the United States in 1892 admitted in case American claims on the subject, of wide jurisdiction in Bering Sea should not be recognized as legitimate by the tribunal at Paris the Federal Government should indemnify the subjects of Great Britain for having abstained from hunting seals during the course of the proceedings in arbitration does not appear to the defendant party as applicable to the present case. In the first place, it was the question of an interdiction of hunting from the entire eastern half of Bering Sea, which constituted a prohibition and consequently an injury much greater caused to the hunting industry and, further, it depended on the contracting States within the limits determined to make a contract between themselves on the subject of indemnity with obligations such as they judged fit. The defendant party has made no engagement in this respect, and on this point it submits itself to the equity of the arbitrator.

The party claimant bringing up again the bad treatment to which certain officers and crews of vessels in question were submitted, the party defendant deems it its duty to observe the following: At the date October 7 (19), 1891, the legation of the United States at St. Petersburg applied to the imperial ministry to demand its intervention to lend assistance to the captain of the American vessel, James Hamilton Lewis, who was in a very precarious situation at Vladivostok after his vessel had been confiscated. (Exhibit D.) The minister of foreign affairs responded the 24th of October, the same year that the captain in question received for his support a ruble and the sailors 50 kopeks per day, and necessary measures had been taken provisionally by the local authorities in order that whatever was necessary should not be wanting. (Exhibit E.) After the communication of October, 1891, following the confiscation of the vessel, which took place in July of the same year, and against which no protestation on the part of the legation had been made at that time, the party claimant waited until July, 1894, to set up claims with regard to this seizure. It was then that the affair took the character of a difference of a diplomatic nature, and the correspondence with regard to it is to be found in the exhibits annexed to the American memorandum. Without wishing to insist on the motives which may have guided the Cabinet at Washington for deferring the presenting of its claim it may be permissible to state that in November, 1892, as is stated in Annex 1, the legation of the United States declared that the point of view and of action of the Russian Government with regard to poaching vessels was entirely conformable to the intentions and views of the Federal Government, and it expressed the hope that Russia would maintain this ground. [Page 373] In the litigation now submitted to arbitration, as regards the point of bad treatment, we have on one hand the assertions of crews and companies engaged in an industry the general character of which, leaving aside exceptions, is set forth in Annex 2, and on the other hand the official declarations of the Russian marine authorities charged with a very painful service of state, in which they are only sustained by a profound sense of duty.

The defendant party, in maintaining the principles serving as the basis of the present arbitration, namely, the general principles of international law, including the right of legitimate defense and the case of force majure, which is the basis of the position taken by it, and furthermore the spirit of international agreements applicable to the subject which in the course of negotiations have marked the solidarity and conformity of the general views between the United States and Russia in the question under consideration, stating, moreover, that the party claimant on aceount of the attitude taken by it formerly during and after the sittings of the Tribunal of Arbitration of Paris, can not fail to recognize the analogy of the situation of facts in the western half of Bering Sea and in the eastern half of the same sea; that it has in effect recognized this analogy, and that it has even declared in consequence, to the present defendant party, after the four cases of seizure, that the point of view of the Russian Government in its action with regard to poaching vessels was entirely conformable to the views of the United States; believing that the broad spirit in the examination of the case under consideration which the defendant party hoped to see manifest itself later by the party claimant, found expression, on the part of the defendant party, in the equitable character which the latter intended to give to its recognition of the right of the claimant party to obtain on certain points an indemnity, the amount of which is indicated in the Russian counter memorandum, renews the opinion expressed in the said counter memorandum, rejecting the other parts of the demands formulated in the American memorandum, and again submits itself it this respect to the equitable judgment of the arbitrator.