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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).

conclusion.

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.

annexes.

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.

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EXHIBIT I.

Protocol.

On the 29th of August (September 10), 1892, at 3 a.m., in 46° 33’ latitude north and 146° 30’ longitude east, on board the schooner Maria, under command of Lieutenant von Cube, a bark was sighted, lying to, which, upon the approach of the schooner, hoisted a white light and under this a red light. An officer was at once sent from the schooner in a ship’s boat to request the captain of the bark to report aboard the schooner with his sailing papers. When the captain, Thomas Scullun, had been questioned and his papers examined, it was found that the American bark Cape Horn Pigeon was engaged in whaling in the Sea of Okhotsk, and moreover, from the points indicated on the chart, it was evident that she had entered the Gulf of Aniva and of Patience, and that her general course was in a direction to the southeast of the island of Tuleny. The captain of the bark declared that he had mistaken the Russian schooner for the American schooner Mary H. Thomas, which was engaged in whaling and sealing, that he was waiting to communicate with her, and to this end had hoisted the signal agreed upon. It was announced to the captain of the bark that he would be conducted with said bark to Vladivostok for investigation into the question of his right to engage in such industry and to sojourn in our waters.

The crew of the American bark was transferred to the schooner, and the crew of the Russian schooner to the bark; Captain Scullun, with his servant and steward, were left aboard the bark. At 10 o’clock in the morning the two vessels weighed anchor and repaired to Vladivostok.

  • Ensign Simansky.
  • Lieutenant von Cube.

I, the undersigned, Thomas Scullun, master of the Cape Horn Pigeon, declare that I agree with the statement of the facts in this act, with the exception of the lines marked with red ink, which I reject because—

  • First. I called in the bays of Aniva and Terpenia two years ago to get water, and not this season, and during my five years’ cruise in these waters never sighted Robben Island; and,
  • Second. I was told by the officer who seized the bark that I was taken for whaling in the Okhotsk Sea, and that he would not have taken me if I had not had whales on board.

Thomas Scullun,
Master Bark Cape Horn Pigeon.

EXHIBIT II.

Report of the Commanding Officer of the Schooner Maria to the Commander of the Pacific Squadron.

In conformity with the orders received from your excellency I took command of the schooner Maria on the 20th of August. This command was transmitted to me by the chief of district of the Commander Islands, and I began at once to put the schooner in order. I had all of the quarters scrubbed with the brush, as also the upper deck. I took on a supply of drinking water and dissipated the bad odor by frequently introducing water by means of the pumps. I took on provisions for the crew sufficient to last two months, and on the 24th of August I was ready to sail.

On the 24th of August at 8 p.m. I left by the outer road from Petropavlovsk. On the 25th of August at 9 a.m. the first-class cruiser Vitiaz weighed anchor, tendered me a cable, and at 10 o’clock, towed by the cruiser, I directed my course toward the outlet of the bay of Avatchinsk. Leaving the bay, I sailed in a direction parallel with the shore at a speed of from 6 to 8½ knots. From time to time when the wind permitted I augmented sail. During the night of August 26 the west wind became strong, the schooner was much shaken by the rolling and tossing of the sea, and was taking in water.

On August 26 toward 3 p.m. we entered the third strait. At about 6 p.m. the fog had somewhat lifted, I could take my bearings. At 10 p.m., leaving the fifth strait, still towed by the cruiser, I directed my course westward. I followed this direction until August 27 at 1.30 p.m., when the tow cable tendered by the cruiser broke. [Page 292]Having received by signal the order to proceed to my destination, I spread sail and took the southwesterly direction. During the first three hours I maintained a speed of 9 knots, but at 6 o’clock in the evening the wind became so strong that it was necessary to reef sails, after which the speed diminished to no more than 6 knots. I continued in same direction until the 28th of August at 4 p.m., when I verified my position at 47° 10′ latitute north and 147° 24′ longitude east. The wind was still from ENE. After this verification I continued the same course. The wind abated gradually, and at midnight passed from S/2 to WSW.

At 3 a.m., I sighted at two points to starboard a vessel which I was not able to clearly distinguish on account of the fog. This vessel at my approach hoisted a white light above a red light, which was evidently a signal agreed upon. Approaching to a distance of less than a cable throw, and having ascertained that it was a whaling vessel, I dropped anchor, lowered a boat, in it placed armed oarsmen, and I sent Ensign Simansky to learn its mission, and to request the captain to report to me with his documents and charts. Capt. Thomas Scullun having boarded the cruiser declared that the said bark bears the name of Cape Horn Pigeon, and is engaged in the industry of whaling in the sea of Okhotsk; that he had killed two whales this year, of which the oil and bone could be found on the bark. To the question put by me as to the meaning of the two lights hoisted upon the bark, he answered they were a signal agreed upon, addressed to the schooner Mary H. Thomas, for which he had mistaken my vessel. The schooner Mary H. Thomas is engaged in whaling and sealing.

Having examined the navigation chart of the bark, I was convinced that she had followed a direction principally to the south of the island of Tuleny, but that she had been off the east coast and the northwest coast of that island at a distance of 10 miles. Taking into consideration the facts that the Tuleny Island is almost in a state of siege, the relation between the bark and a schooner engaged in sealing, and her continued presence at points not far from the said island, I concluded that this bark, besides it special calling, had some sort of bearing upon the seal fisheries in the vicinity of the island. It is possible that she furnishes the schooners with provisions or that she serves them as a storeship. For this reason I resolved to conduct her to Vladivostok. I learned, moreover, from the captain that his first mate, William Jong, had landed twelve years ago from a schooner upon the island of Tuleny, where he had killed 13,000 seals during one summer, from which it appears that among the bark’s crew there were experts at this industry.

Finding it impossible to inspect the hold, and thus convince myself of the bark’s participation in this sort of illegal industry, I took the above-mentioned determination, to the end, moreover, that a commission, specially appointed, might examine the hold and ascertain the truth.

I learned from the captain that he had asked through the medium of the governor of the maritime province permission to engage in whaling in the bays of the sea of Okhotsk, and had offered our Government $500 dollars to obtain that privilege, but permission was emphatically refused. I knew that the clipper Abrek had overhauled and detained this same bark off the Chantarsky Islands, but had not seized her because she had no whales on board, but had warned her that the industry was illegitimate. Haying examined her chart I found that she had lingered several times near the Russian coast, even in the gulf of Peter the Great, between the island of Askold and the shore, in the gulfs of Patience and of Aniva, off the coast of Cape Aniva, and had engaged at that place in whaling, all of which I judge from the signs upon the chart I learned from the captain that in these waters the bark Morgan, belonging to the same party, and the schooner Mary H. Thomas were engaged in whaling. The bark Morgan not succeeding in her effort in these parts had gone to the north coast of the peninsula of Kamchatka, and had proposed to the captain of the Cape Horn Pigeon to accompany her, but the latter had refused. The captain declared that to the north of the sea of Okhotsk, in the bays, were two English steamers, the Northless and the Norwall, and the American brig Hidalgo, engaged in whaling. Taking into consideration all the preceding and having weighed all of the circumstances for and against, I concluded to conduct the said bark to Vladivostok, in order that the matter might be carefully investigated whether or not the industry in which she engaged and her sojourn in our waters was legitimate. For this purpose I required the bark’s crew to board the schooner Maria, with the exception of the captain, the steward, and a small boy in the captain’s service. The first mate, William Jong, was named in the capacity of captain of the schooner, to whom the order was given to conduct her to Vladivostok.

I, with Ensign Simansky and all of my crew, composed of twelve men, went aboard the bark. The whole affair was accomplished at half past 9 in the morning, and at 10 o’clock in the morning of August 29 the bark and the schooner filled away [Page 293]toward the Strait of Laperouse. The schooner soon disappeared in the fog. Astern was another schooner, which also soon disappeared. At half past 7 in the evening a brisk wind, SSE., arose. As the bark had no balast I brailed up sails. The vessel leaned to greatly; it was evident she oscillated greatly. The first day the crew was occupied cleaning the quarters, which were in very bad condition. At night the wind changed from SSE. to NW. I continued in the same direction and sighted the summits of Cape Aniva; in the morning I augmented sail. At noon, August 30 (11th September), I stood in 46° 18′5 latitude north and 144° 14′ longitude east. In the evening, the wind becoming brisk, I diminished sail. At 7.40 in the evening I sighted Cape Aniva, 2 miles distant. The night of August 311 was in the Strait of Laperouse. Heavy fog; course WSW. ½ W.; now and again two lights were seen to starboard and port. Wishing to avoid danger, I sailed to SW.; having made 10 miles in that direction, I turned WNW. At 7 a.m. I sighted the light-house of Soiou.

At 8 a.m., having doubled Soiou, I took the course 10 miles to the north of Rebouksiri. At 2 p.m. I sailed toward Cape Nizmenny. Throughout this time a steady wind was blowing from NE.; speed from 5 to 8 knots. At noon September 1 (13) there were no astronomical observations taken. The wind had changed to NW. and toward evening began to freshen. I diminished sail. The wind abated about morning; I augmented sail. At noon September 2 (14) I made 42° 25′ latitude north and 136° 48′ longitude east. I had been carried southward. I had steered west as much as a NNW. wind permitted. Wind feeble; speed 3 knots.

At noon September 3 (15) I made observation 42° 13′ north latitude, 135° 48′ east longitude. After midday I sailed to NW., nearer to shore, hoping to profit of the coast wind. On the morning of September 4 (16) I sighted the coast. At 9 a.m. I tacked. At noon I ascertained 42° 59′ latitude north and 135° 61′ longitude east. From Cape Krasny to the southeast for 23 miles. Wind W/5. I went about. The bark tacks well without losing headway. We lost much time while tacking, on account of the unskillfulness of the men at the helm. On September 5 (17) I tacked opposite the shore to WSW. At 8 o’clock I had favorable wind and sailed westward. At 6 o’clock I took my bearings; island of Petrow at No. 1, 40 to 13½ miles. At 9.50 p.m. I sighted a revolving light, which soon disappeared in the fog. During the night of September 6 (18) I continued my course westward. In the morning contrary wind from WNW. I sailed northward. At noon of 6th (18) 42° 17′ latitude north and 133° 0′ 6″ longitude east. At 2.45, nearing the shore, I tacked to westward. When it grew dark the Askold light could no longer be seen, in spite of the short distance. The night of the 7th (19th) off Askold, dead calm, the lights were not visible. At 7 o’clock a northwest wind prevailed. I sailed in a northwesterly direction, advancing on the light-house of Skryplew. At 10.30 the schooner Vancouver Belle came to meet me. I signaled (B. L. M.) asking that steam launches be sent to tow me.

At 3 o’clock I entered Vladivostok and cast starboard anchor.

During the entire passage both crews behaved well. The schooner’s crew was divided into three watches, the bark’s into two; 5 men in each. Knowing the fatigue of two watches, I endeavored to give the men as much free time as possible and to avoid superfluous work. They were often obliged to pump the water from the hold, for during the day it accumulated to a depth of from 10 to 20 inches. It is very evident that somewhere about the bark there is a leak.

The health of the crew was excellent throughout the passage. No one applied to me for medical assistance.

Lieutenant von Cube.

EXHIBIT III.

In conformity with order No. 160 of the commander of the Pacific Squadron dated the 11th September, 1892, the commission appointed by that order, and composed of the Ship’s Captain Hessen, president; Ship’s Captain Zarine, Captains of Frigate de Livron and Philissow, and of the auditor chief counselor of the college Yanevitch Yanevsky, members, with Lieutenant Petrow, executive officer, proceeded to execute the work intrusted to them, took cognizance of the circumstances of the seizure of the American whaling bark Cape Horn Pigeon.

From the report of Lieutenant von Cube, who seized said bark, it appeared that he had been detailed from aboard the first-class cruiser Vitiaz aboard the schooner Maria, seized by the cruiser for illegal seal fishing, for the purpose of conducting her to Vladivostok during the voyage, when in 46° 33′ latitude north and 140° 30′ longtitude east he sighted the bark Cape Horn Pigeon, and, suspecting it of engaging in the same [Page 294]illegal industry, he sent his Second Ship’s Ensign Simansky with armed sailors to ascertain what vessel it was, and what its mission. Having learned from the bark’s Captain Thomas Scullun, who returned with Lieutenant Simansky, that it was a whaling vessel having aboard at that moment the product of two whales killed by him, Lieutenant von Cube found it impossible to abandon his first intention. Moreover, on examining the log book and the navigation chart of the bark, he was convinced that the latter had on several occasions approached the Russian coast of the sea of Okhotsk, where whaling is absolutely interdicted to foreigners. Furthermore, Lieutenant von Cube was confirmed in this opinion by the circumstance that at the approach of the schooner the bark had hoisted a signal, which, according to Captain Scullun’s explanation, had been intended for the schooner Mary H. Thomas, expected that same night, and which also engaged in whaling and sealing. In view of these facts, Lieutenant von Cube considered it incumbent upon him, in the interest of the Russian Government, to conduct said bark to Vladivostok in order that the question might be decided at once whether or not she should be confiscated. But not having at his disposal a crew sufficiently numerous to put a portion of it upon the bark, and not wishing to trust to the bark’s crew, he decided to go aboard the bark with his entire crew, and to keep with him the bark’s captain he transferred the captain’s mate, with the entire crew of the bark, aboard the schooner Maria and ordered them to repair to Vladivostok. The Cape Horn Pigeon arrived at Vladivostok on the 7th September and the schooner several days earlier.

The commission at once took cognizance of the statements relating to this affair, as well as of the documents in evidence, such as the log book kept by Lieutenant von Cube on the schooner Maria, and afterwards on the bark Cape Horn Pigeon, the log book of the latter kept by Captain Scullun, the sailing papers of the bark taken from the captain by Lieutenant von Cube, the navigation chart of the bark and the instructions given to commanders of Russian cruisers on being sent north, to regulate their conduct when boarding and seizing schooners suspected of marauding.

From the above-mentioned documents and the examination of said bark made by the commission (of which the protocol is hereunto attached) results the following:

1. The bark Cape Horn Pigeon having left Vladivostok on June 22 (7th July) of this year without obtaining the permission sought for to take whales in the bays and coast waters of the Sea of Okhotsk, caught two whales in said sea; she sighted the first of these and began the chase at 5 miles from the island of Askold, but was not successful in catching it there.

During her cruise to the west of Cape Aniva, she communicated several times while at sea with the schooner Mary H. Thomas, which, according to Captain Scullun’s statement, is engaged in whaling and sealing.

2. Whaling in the Sea of Okhotsk is not interdicted to foreigners except in the bays, the gulfs, and straits, and in coast waters or along shore. It is even permitted to foreign fishing vessels in cases of extreme necessity to enter the bays and gulfs, provided they do not enter into such negotiations with the inhabitants as are forbidden by law.

3. Upon the bark were found the oil and bone of two whales killed, as said the captain, in the Sea of Okhotsk, in that part wherein whale fishing is permitted; but although the statements of the captain were confirmed by the log book and the chart, the commission did not consider this fact sufficiently proven.

4. The conduct of Lieutenant von Cube at the time of the seizure of the bark is considered by the commission perfectly regular, inasmuch as overhauling a suspicious vessel, in a suspicious locality, he could not do otherwise than seize it and submit to an investigation as to the legitimacy of the seizure by a superior authority. The commission will not fail to notice here that the mere feat alone of detaining a bark with a crew numbering 30 men by the much less numerous crew of the schooner shows the initiative spirit and resolution of Lieutenant von Cube.

In consequence of the preceding and the impossibility of establishing the fact that the two whales had been taken by the bark in that portion of the Sea of Okhotsk where whaling is prohibited, the commission is of opinion that the position of the bark near the Russian coasts does not of itself constitute an illegal act, and it declares that for this reason the bark Cape Horn Pigeon can not be convicted of having engaged in illegitimate business, and it does not see sufficient motives for its confiscation.

(Signed) Members:
  • Yanevitch-Yanevsky, Presiding Counsellor of College.
  • Captain of Frigate Philissow,
  • Captain of Frigate de Liveon,
  • Ship’s Captain Zaeine,
  • President, Ship’s Captain Hessen,
  • Executive Officer, Lieutenant Petrow,
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EXHIBIT IV.

Report of the Commander of the Second-Class Cruiser Vitiaz to the commander of the pacific squadron, dated at vladivostok, september 15, 1892, No. 389.

I have the honor to report to your excellency that in conformity with order No. 4003 of the office of administrator of the port of Vladivostok, dated 12th of September of present year, the American whaler Cape Horn Pigeon, which had been detained, was restored to the captain of said bark by Lieutenant von Cube.

(Signed)
Ship’s Captain Zarine.

Examiner:

N. N.