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Detention and confiscation of the American schooner C. H. White.

The American schooner C. H. White was detained and confiscated under the following circumstances:

On the 3d (15th) of July, 1892, at 10.30 p.m., the Russian cruiser Zabiaka, under command of Captain de Livron, being in 54° 30’ latitude north, and 167° 15’ longitude east from the port cathead in the direction southeast 68, observed at a distance of 2 miles a schooner without distinctive lights sailing toward the southern extremity of the island of Medny, in a westerly direction.

Having for special mission the protection of the coasts of the Commander Islands in Bering Sea, and suspecting this vessel of being engaged in illegal seal fishing, the commander of the cruiser fired a blank shot, and on approaching the schooner commanded her to lay to. When this order was complied with ah officer was sent in a ship’s boat to the vessel, which was found to be the American schooner C. H. White, under command of Captain Furman. The officer, after a short inspection of the schooner, discovered in the hold a quantity of seal skins and several seals but recently killed. It was evident from documents presented by the captain that the log book had not been kept during the last two days; and from the entries in the journal, in spite of the explanations made by the captain concerning his previous navigation, it was plain that the schooner had during the two weeks preceding this encounter remained in the proximity of the Commander Islands. For instance, the 12th of June, when according to his statements they were engaged in hunting and fishing 40 miles south of the Agatha Island, they were in reality 8 miles off the Medny Island; the course followed by the schooner on her return voyage brought her 3 miles off the southern extremity of that island. In view of this data the schooner C. H. White was conducted to the village of Meolsk, on Bering Island, where a formal inspection by a special commission was made, which established the presence on board of about 12 tons of salt, 15 seal skins, 5 seals newly killed, different accessories fox catching these animals, powder, and other articles. A protocol relating the details of the episode was immediately drawn up; Captain Furman in it set forth his observations, and his first mate, Andren Ronning, signed the document unreservedly.

On the part of the crew of the schooner not the slightest resistance was made to the measures taken by the commander of cruiser. Upon the basis of this protocol, and regulated by the instructions received from governmental authorities, Captain de Livron, by a resolution of 4th (16th) of July, 1892, decided to confiscate the C. H. White and to send her to Vladivostok; moreover to send the captain and crew to Petropavlovsk, allowing them to return freely to their country. This decision was strictly carried out; Captain Furman and the members of the crew were authorized to remove such effects as belonged to them, [Page 307]and which in no way constituted the accessories of equipment of the schooner. Furthermore, in conformity with the decision of the commander of the cruiser Zabiaka, the aliens, who had thus been taken upon Russian territory, whether those of the schooner C. H. White or of the other confiscated vessels, were conveyed to America on the brig Majestic. (See Exhibits I, II, and III; Exhibit S annexed to American memorandum, third case.)

objections concerning the basis of the affair.

From the preceding it appears, in the first place, that the American schooner C. H. White was detained in her course and seized in 54° 10’ latitude north and in 167° 10’ longitude east, and not in 54° 18’ latitude north and 167° 10’ longitude east—that is to say, in all, a distance of 23 miles, as Captain Furman pretends. The unsubstantiated statements of the latter are contradicted by the official protocol drawn up at that time on the cruiser Zabiaka (Exhibit I) and by the official log book of the cruiser for the year 1892 (Exhibit III) while the log book of the schooner was not kept in order precisely during the last days preceding her seizure. Even the observations of the captain of the C. H. White in the protocol of July 3 (15), 1892, show that he well understood the meaning of the document which he signed, since he endeavored to justify his situation at the time of his encounter with the Russian man-of-war. At all events, the suspicious character of the schooner C. H. White was established by the fact alone that in flagrant violation of international maritime laws it was sailing far enough into the night without distinctive lights. Moreover, the log book of the vessel served to show the inaccuracy of the captain’s statements relating to his previous course, and proved the schooner’s recent presence in the proximity of the Russian coasts; the course followed on her return voyage indicated a passage at 3 miles off the southern extremity of the Medny Isle. Finally, a casual examination of the hold revealed to the Russian officers the presence of products of illegal seal fishing and confirmed Captain de Livron in his opinion that he had effectually caught up with the marauders almost upon the spot where the offense had been committed, or shortly after the accomplishment of same. Under these circumstances the Russian cruiser, whose special mission it was to strictly guard the fisheries off Commander Islands, could not fail to pursue and seize a foreign vessel which after all doubts as to her pretended nonculpability have been dispelled should have been confiscated in conformity with the prescribed regulations (Exhibit II).

In sanctioning the measures taken by her agents in this respect, the Imperial Government does not intend to dispute the principle of international law which recognizes the liberty of the high seas, but thinks there is reason to attribute particular importance to the essential circumstances of this affair without, however, losing sight of the fact that the limits of territorial waters are not at present clearly determined (see second case). It must be chiefly considered that this vessel, which was found to be a poacher (since it is impossible to lend even a semblance of likelihood to the supposition that the schooner, having been detained with the products of a recent catch of these costly animals, could have been engaged in legitimate business during the two weeks which were spent in the proximity of the Russian coasts, where poaching is interdicted), was sighted by the Russian cruiser at a [Page 308]moment when, after being engaged in illegitimate seal fishing near Russian territory, it was stealing away in the darkness from the pursuit to which it had rendered itself liable. The schooner C. H. White was definitely seized at a relatively inconsiderable distance from land, but after spending entire days on the point of a seizure, in coast waters, had not time to escape beyond the reach of the armed force of the country upon whose rights it had infringed. The cruiser Zabiaka, whose special duty it was to watch all suspected vessels about the Commander Islands, had the right to pursue the fleeing schooner and seize her even beyond the limits of territorial waters, according to the Russian law. This point of view must not be regarded as a denial of the principle of the freedom of the high seas, whose object is to attain an advantage of universal interest; that is to say, to protect aliens of all countries in peaceful occupations, but not individuals guilty of harmful attacks upon the rights of others. It is not to be expected that vessels engaged in marauding will not be seized in every case beyond” the immediate proximity of the coasts; the protection of the immense extent of Russian coasts in the Pacific Ocean would thus be almost impossible. If the offense had been committed within the limits of the jurisdiction of the local authority, the right to pursue the delinquent still farther could not be ignored. In the case of the Costa Rica packet which is cited quite a different ease is in question, that of the pillage of a canoe abandoned at sea, but having been the object of a pursuit proceeding from the Russian coasts, which excludes all question of violation of the principles of international law.

Independently of the preceding considerations, it would be well to note the following particulars of the present case:

The question of preservation of fur seals against the destruction to which they are exposed from marauding vessels, either on the high seas or in territorial waters, has been for a long time a matter of solicitude to the Russian Government and the Government of the United States, who are the possessors of the only territory whereon these animals land—on Commander, Pribilof, and Tuleny islands. Great Britain was implicated in this question on the occasion of disputes which arose in consequence of fishery carried on by Canadian vessels. On June 3 (15), 1891, the Cabinets of London and Washington agreed to establish a provisory modus vivendi, by virtue of which aliens of both countries were interdicted during the period of one year from engaging in fur-seal fishing in that portion of Bering Sea east of the line of demarcation fixed by the treaty concluded in 1867 between Russia and the United States; that is to say, at a time when the American Government claimed exclusive sovereignty over these parts, founded upon the ancient rights of Russia, acquired at the same time as Alaska and the neighboring islands. This provisory state of things was continued until the decision of the Paris tribunal of arbitration, which passed upon the American claims. (See Review of International Law, Vol. XXV, 1893, p. 417.)

As a consequence of the practical application of this measure for the interdiction of seal fishing, there was an extraordinary influx of poaching vessels in the proximity of Russian coasts in the western part of Bering Sea.a

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This circumstance obliged the Russian Government to send a cruiser, furnished with suitable instructions, to the Pacific ocean to protect the fur-seal fisheries. The attitude of the aliens of the party claimant was such as to require Russia to take a stand of legitimate defense. At this time, among other very numerous vessels, both English and Amercan, the schooner C. H. White was seized for engaging in illegitimate fur-seal fishing off the Commander Islands. Then in the month of May, 1893, a special agreement was concluded between England and. Russia, by which the English Government engaged to temporarily interdict her subjects from seal fishing in a zone of 10 miles along the Russian coasts, along the whole extent of Bering Sea and the western part of the Pacific Ocean, as well as in a zone of 30 miles around the Commander and Tuleny islands. An arrangement of the same nature was concluded on April 22 (May 4), 1894, between Russia and the United States of America. On a parallel with the above facts the Paris tribunal of arbitration of the 15th of April, 1893, settled the difference between England and America, concerning the general question pending between the two Governments, by fixing obligatory rules regarding the protection of seals, by which it was agreed, among other things, that the two countries should completely prohibit their subjects the catching of these animals within the limits of a zone of 60 miles around the Pribilof Islands. This last decision gave partial satisfaction to the claims of the Washington Cabinet. The application of the decisions of the Paris tribunal of arbitration by the two countries was assured, so far as regards England, by means of a bill adopted by Parliament and in America by an act of Congress dated April 5 and 6, 894. In fact, the United States Government showed itself disposed to sign a convention with Russia, England, and Japan on the subject of the extension of the decision of the Paris tribunal of arbitration to all of the waters of the Pacific north of 35° of latitude.

Thus it is evident that the points of view of the Russian and American Governments, in a question of such importance for both countries as the preservation of the seals, were, upon the whole, concordant. According to the principle of reciprocity, the United States Government, which claimed the right of control over a great extent of sea, alleging rights in which, according to its own statement, it had taken the place of Russia, and which (Government) availed itself thereof for the protection of its own industry in the territories and waters which belonged to it, was obliged to recognize, on its part, the control of Russia, at least to the limited extent to which the latter proposed to exercise it, without disputing the legality of the measures which the Russian Government thought it necessary to take in order to preserve its own coast against pirates, and without giving its support to the claims of American citizens who infringed upon the regulations adopted by Russia in an interest that was common to both countries. It is incontestable that the Russo-American agreement, concluded after the confiscation of the schooner C. H. White, not having retroactive force, could not, strictly speaking, be applied in the present case; but it is beyond doubt that the agreement only sanctioned in a formal manner the previous point of view in the question of common interest to both countries. Therefore the seizure of an American vessel at a distance of 23 miles from the Russian coast, which vessel may have been guilty of infringement upon interests which the Russian Government meant to protect, could not in justice give grounds to claim of the party claimant.

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By contesting in its entirety, upon the basis of the preceding considerations, the sound basis of the claim of party claimant, the defendant party thinks it necessary to pause at certain points of detail of the said claim.

1.
Particular weight should be attached to the personal claims of Captain Furman ($25,000), of his first mate, Ronning ($15,000), and of the fisherman Wolfgang ($10,000); also to the claim presented in the name of the entire crew of the confiscated vessel, which reaches a sum of $20,000. All of these claims, stripped of sufficient proofs to a total of $70,000, with interest for nine years, are based upon the pretended facts which follow: The captain of the American vessel had been compelled by force, under penalty of transportation to Siberia, to sign a document in a foreign language which he did not understand, and to submit to a severe imprisonment on the Russian cruiser. Cruelties were committed against the crew in general, either at sea or on shore, on account of which they must have suffered greatly both physically and mentally. In fact, certain trifling objects belonging to Furman, Ronning, and Wolfgang were lost and were not restored to them when they were given their liberty. Then the inquiry which was made and the decision of the superior authority as to these facts established not only the complete inaneness of these allegations, offensive to the honor of the Russian navy, but still more the fact that many of these aliens at Petropavlovsk expressed their thanks to the Russian officers for the good treatment they received and the assistance that was given them for their return to their own country. (See Exhibit H.) As for the particular point of the argument drawn from the fact that uncomfortable lodgings in the town had been assigned to these parties, it is explained by the insufficiency of the local resources and not from any intention to treat the aforementioned persons as criminals. On the contrary, the Russian authorities renounced all personal judicial action against the parties who aboard the C. H. White engaged in illegal fishing, confining itself to confiscating the seized vessel. (Exhibits II and III.) In view of the preceding, the mention made by the party claimant of the precedent of the decision of the Commission of Washington in 1871, where, according to the memorandum, it is a question of the illegal confinement of persons in a prison or in a fortress at the time of the war of secession is not applicable in the present case, and the defendant party believes it right to reject in a manner most emphatic all claims bearing upon personal bad treatment to which the interested parties may have been subjected.
2.
As to the claims relating to the loss of probable profit which might have been derived from the seal fishing and from the catch of fish ($34,700—$10,300), the defendant party considers it sufficient to refer to his explanations concerning the case of the Cape Horn Pigeon (first case).
3.
The sum for loss representing the value of the confiscated vessel and of her cargo ($35,000—$280—$160—$260) is not justified except by the testimony of interested persons and can not be considered as regularly established. (See fourth case.)
4.
It naturally follows that the claim for interest since the year 1892 ($81,388.80), added to the principal of the claim, could not be admitted by the defendant party once the latter is rejected by him.

Finally there remains to be mentioned that the proposition recently made by the party claimant to settle the affair by compromise for the [Page 311]sum of $112,500, instead of $232,108.80 at present claimed, shows plainly the absence of accuracy in the estimates of the party claimant.

conclusion.

By virtue of the preceding the defendant party requests that the entire claim of the party claimant be rejected.

exhibits.

I.
Verbal proceedings of the seizure of the schooner C. H. White, dated July 3 (July 15), 1892, No. 376;
II.
Act of the confiscation of the said vessel dated July 4 (16), 1892, No. 377; and
III.
Certified copy of the log book of the cruiser Zabiaka for the year 1892.

The defendant party holds the original of these documents at the disposal of the arbitrator.

EXHIBIT I.

Official Report of the Confiscation of the American Schooner C. H. White on the 3d (15th) July, 1892, in Bering Sea, on Board the Cruiser Zabiaka.

On the 3d (15th) July, at 10.30 p.m., being in 54° 30’ latitude north and 167° 15’ longitude east, bearing toward southeast 68, from the port cathead, at a distance of 2 miles, was sighted a sailing vessel without distinctive lights, which bore in the direction west of the southern extremity of the island of Medny. A blank shot fired from a 9-pounder, and approaching the schooner she was ordered to lay to, which injunction was at once obeyed. An armed rowboat was sent from the cruiser under command of Lieutenant Panferow, who having superficially examined the hold discovered a number of seal skins, and of five seals but recently killed. Lieutenant Panferow, remaining aboard the schooner, sent her captain with the log book and the ship’s papers aboard the cruiser, from which was learned the following:

1.
During the last two days the log was not kept.
2.
The schooner C. H. White, under the United States flag, belonging to John Prien, left San Francisco the 7th (19th) May, under command of Capt. L. M. Furman, with an European crew of ten men, among whom the said Captain Furman, his first mate, Andrew Roning, and the cook, Julius Furman, were remunerated according to the number of skins of seals killed. Besides the persons above mentioned, forming part of the crew and not on the ship’s roll, were four Aleouts speaking Russian. The captain with seven men were left aboard the cruiser. Lieutenant Panferow, being sent aboard the schooner, took the towline tendered by the cruiser and conducted the schooner into the roadstead of the village of Nikolsk on the Bering Island, where, after inspection by a commission composed of the ship’s executive officer, Second Lieutenant Arnaoutow, of the examiner, Lieutenant Bezkrovny, of first pilot officer. Lieutenant Lakhtine, and of Lieutenant Nasonow, it was shown that the schooner contained about 12 tons of salt, 15 seal skins, 5 seals newly killed, 23 guns of different systems, with cartridges, 10 tin boxes containing powder, a variety of groceries, manufactured articles, and various small objects made of iron. There was no opposition or resistance by the captain or crew.

The contents of the official report were communicated to the captain, who made no objections.

(Signed)
Lieutenant Nasonow.
Lieutenant Lakhtine.

Lieutenant Bezkrovny.

[l. s.]
Lieutenant Arnaoutow.
Captain of Frigate de Livron.
Andren Ronning.
L. M. Furman,
Master Schooner C. H. White.
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EXHIBIT II.

Decision Made on Board the Second-Class Cruiser Zabiaka on the Way to the Village of Nicolsk on Bering Island, No. 337.

On July 4, 1892, upon the basis of the official report of the examination of the schooner C. H. White, drawn up on July 3 by the commission appointed by my order dated June 28, No. 60, and founded upon the publication by the Russian Imperial Government, published in 1881, as well as by virtue of the decision of the governor general of eastern Siberia of the 1st November, 1883, No. 1171, and of the instructions given to the cruiser by the commander of the port of Vladivostok, dated April 22, 1892, No. 1425, I, commander of the above-mentioned cruiser, captain of frigate Boris Karlovitch de Livron III, have decided:

  • First. To confiscate the schooner C. H. White and to dispatch her to Vladivostok under command of Lieutenant Koltchak.
  • Second. To convey the captain and crew to Petropavlovsk, allowing them freely to return to their country.
  • Third. To draw up a complete inventory of the schooner’s cargo upon her arrival at Petropavlovsk.
  • Fourth. To sell at auction at Petropavlovsk, for the benefit of the State, all of the cargo susceptible of deterioration and the unnecessary long boats, as well as arms.
  • Fifth. To deliver without receipt the seal skins to the chief of district of Commander Islands.
  • Sixth. To deliver without receipt one of the seven long boats to the chief of district of the Commander Islands, in compliance with the request of said chief.
  • Seventh. To submit the present decision to competent superior authority.
  • Eighth. To deliver to the captain copies of this official report and of the present decision.

(Signed)
Boris de Livron
, [l. s.]
Commander of the Second-Class Cruiser Zabiaka.

EXHIBIT III.

Extract from the Journal kept Aboard the Second-Class Cruiser Zabiaka during her Cruise for the Protection of the Commander Islands in 1892.

Name and nationality of vessel: United States of America, C. H. White.

Cargo: Twenty seal skins, salt, powder, shot, arms, various implements for the taking of seals. Provisions and a variety of merchandise for commerce by means of barter.

Tonnage: Eighty-four.

Name of captain: L. M. Furman.

Circumstances of the case: On the 3d (15th) July, 1892, at 10.30 p.m., in 54° 30’ latitude north and 167° 15’ longitude east, while sailing in the direction southeast 68, we sighted at a distance of 2 miles a sailing vessel without distinctive lights following a course to the west of the southern extremity of the island of Medny. A blank shot was fired from the cruiser, and on approaching the schooner was enjoined by verbal order to lay to; this she did. Two officers and 11 sailors were sent aboard. On inspection it was discovered that the schooner contained 15 seal skins and 5 seals newly killed, after which a towline was tendered and she was towed to the village of Nicolsk. There was no resistance on the part of the captain from the moment of his arrest.

Number of crew: Fifteen.

Decision: The schooner and the cargo are confiscated and the crew will be sent to America on the brig Majestic.

(Signed)
Captain of Frigate de Livron.

The present extract is in conformity with the original of the log book among the papers of the acting major-general of marine, 1895, No. 30.



P. Mikhailow,
Governor of Chancery of the Ministry of Marine.
S. Stebline Kamensky,
[l. s.] Deputy of the Jurisconsulate.
  1. In the documents of the confiscated vessels there were shown inscriptions made by English or American officers ordering these vessels to go beyond the line of demarcation of the forbidden zone, and not to enter again under penalty of confiscation.