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Confiscation of sealskins from the American schooner Kate and Anna, detained in her course by the Russian cruiser Zabiaka.

statement of case.

The American schooner Kate and Anna was detained and afterwards permitted to continue her course under the following circumstances:

On the 31st of July (August 12), 1892, at 7 a.m., the Russian naval cruiser Zabiaka, under command of Captain de Livron, detained off the Medny Island, in Bering Sea, three small boats engaged in poaching, and belonging to the English schooner Sayward, and afterwards another marauding schooner, the Vancouver Belle, seeking the Sayward, which had disappeared, when it sighted through the fog at a short distance still another sailing vessel, which was found to be the American schooner Kate and Anna.

The Zabiaka detained the latter in her course in 54° 9/10’ latitude north and 168° 21/22’ longitude east, 30 miles south of the Commander Islands. From the ship’s papers, which were presented by Captain Lutjens, the commander of the Zabiaka discovered that the log of the schooner had not been kept for ten days past, and that it was generally not in order. According to the lines of route indicated on the chart of navigation, as also from the points noted at noon, the commander of the Zabiaka was convinced that the Kate and Anna, during the last ten days, had twice entered the strait between the Bering and Medny Islands. Consequently, not trusting to the explanations made by the captain that he had entered the strait on account of bad weather, and believing that he had engaged in illegitimate seal fishing in the proximity of the Russian coasts, Captain de Livron seized the 124 sealskins which were aboard the schooner. As he had no more convincing proofs he permitted the schooner to continue her course, after compelling the captain to sign an agreement not to kill seals in Russian waters. This warning was inscribed in the log book of the Kate and Anna, and Captain Lutjens made at that time no further claim. (See Exhibts I and II; compare Memorandum, Exhibit E.)

grounds for legal responsibility.

There is no doubt, in consideration of the conditions of the encounter with the Kate and Anna and from the evidence of her ship’s papers, that the commander of the cruiser Zabiaka had serious reasons to suspect this vessel and even to conclude that at least a portion of her catch had been obtained by poaching in Russian territorial waters. However, the setting at liberty of the vessel, after having seized the cargo which rendered it suspicious, shows a lack of purpose in the decision of the naval cruiser’s commander, which might be partly explained by [Page 314]want of positive proofs of the culpability of Captain Lutjens regarding the wrong attributed to him. Therefore the Russian Government, in conformity with its desire to maintain on all occasions amicable relations with the American Government, is ready to acknowledge its obligation to indemnify the actual losses caused the individual by the lamentable fact concerning the schooner Kate and Anna. In view of the preceding there is no reason to enter into an examination of the principle of international law regarding the freedom of the high seas, and the question now is the settlement of the amount of indemnity to be paid to the injured parties for the decision taken at the moment the said vessel was stopped.

amount of indemnity.

All the claims in this affair are filed in the name of the captain, owner of the vessel Kate and Anna, Charles Lutjens, who thinks he has the right to claim not only reimbursement of the value of 124 confiscated sealskins, but also an indemnity for the interruption of her voyage during the fishing season. The total amount of Lutjens’s claims was limited in 1893 to $10,000; at present, with interest added, it reaches the sum of $16,148.44. (See Memorandum, Exhibits C, H, and statement of case.)

I. Regarding the most important portion of the alleged losses, which is estimated at $8,750 and which relates to the interruption of the schooner’s course, the defendant party considers that this feature of the claim is devoid of all juridical grounds. It is plain that in warning the suspected vessel of the legal responsibility it incurred by navigating in Russian waters, the cruiser Zabiaka did not forbid her to continue fishing outside the aforesaid zone, and did not touch upon the freedom of the further navigation of the schooner upon the high seas, open alike to all. This warning consisted only of a necessary reminder of the obligation not to infringe upon the rights of others, and not a forbidding of the American vessel to exercise her legitimate rights. At all events, the commander of the Russian cruiser had not ordered the captain of the schooner to “stop seal fishing and go home” (as the claimant pretends); confining himself to the confiscation of the sealskins, he inscribed in the schooner’s log, that “the vessel was not taken and got free,” so it appears from the explanations of the claimant himself. Therefore De Livron’s warning to the captain alone did not oblige the schooner to quit at once the western waters of the Pacific and to return to San Francisco. In a word, there could be no question of enforced interruption of the voyage of the Kate and Anna until the close of the fishing season, or of the loss which the vessel may have sustained of a probable profit derived from legitimate fishing in open sea. Judging superfluous a return to the questions developed in case of Cape Horn Pigeon (first case) concerning the inapplicability in a civil action of hypothetical calculations as to the number of animals that might have been killed, a quantity estimated in the present case at 625, the defendant party rejects on his part said claim as unfounded.

II. Captain Lutjens’s claim for indemnity for 124 sealskins which were confiscated from him is recognized as essentially legitimate, but the amount of the claim upon this point seems exaggerated. To justify the sum of $1,736 claimed to-day, while in 1893 the sum of $1,737 was claimed, reveals the fact that according to the word of the ship’s owner [Page 315]of the Kate and Anna (Memorandum, Exhibit G), the 1,252 skins previously delivered to Hakodate that same season were sold on the London market at $14 each. But, independent of this, the fact alleged is not proven in a documentary manner (compare Memorandum, Exhibit Q). It will be seen that the claimant party in his statement cites the case of the valuation of sealskins at $8 each. There also appear data contained in the books of the imperial ministry of marine that, at the time of the sale through an intermediary of the firm of Lindholm at London of sealskins confiscated from different vessels in 1892, sums amounting to 15 rubles 61 copeck and 18 rubles 44 copeck each were realized; that is to say, from about $8 to $9.50, valuing the dollar at 1 ruble 95 copeck.

From the preceding, and considering that the party claimant does not present exact data on the subject of the then price of the raw products on the San Francisco market, that is to say, from the starting point to the destination of the schooner Kate and Anna, the defendant party thinks it quite sufficient to take as mean value of one sealskin $10 as a maximum, and declares a willingness to pay for said 124 skins a sum total of $1,240.

III. The addition of legal interest, as has been stated above in the counter memorandum, is recognized as just by the defendant party, to date from the day of confiscation of the seal skins in question. In fine, it suffices to say that the compromise recently proposed to fix the indemnity at $7,500 instead of $16,148.44, now claimed, shows a lack of accuracy in the calculations of the party claimant. (Memorandum Exhibits T and U of the first case.)

conclusion.

On the basis of all that precedes, the defendant party recognizes the obligation to pay an indemnity amounting to $1,240, with added interest at 6 per cent per annum from the 31st July (August 12), 1892, and requests that the claims of the party claimant upon the other points be rejected.

annexes.

I.
Extract from the report of the commander of the cruiser Zabiaka dated August 11, 1892, No. 354.
II.
Extract from the log of the cruiser Zabiaka during her protective cruise off the Commander Islands in 1892.

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

EXHIBIT I.

Extract from the Report of the Commander of the Second-Class Cruiser Zabiaka dated August 11, 1892, No. 354.

On the 31st of July, being sheltered by the southern extremity of the Medny Island, and off the western coast, I was notified between 12 and 1 o’clock by a signal from shore that from the western coast of the island a schooner had been sighted. I at once circled the extremity of the island, and saw at a distance of 3 miles from shore three sails, which disappeared in the distance. On approaching we discovered that they were three poaching vessels, which fled at the approach of the cruiser.

[Page 316]

On reaching these boats, which were found to belong to the schooner Sayward, I gave orders to seize them. The boats, with nine men, guns, and eight seals just killed, were taken aboard the cruiser and confiscated. The boats and guns were sold at auction in the village of Nicolsk for 200 rubles. At the court of inquiry these aliens declared to me the point at which the schooner lay, at southwest 45°, and I made way thither. Shortly thereafter we sighted the schooner, and at 4.30 we hove to in close proximity to the latter. The captain being requested to report aboard the cruiser with his ship’s papers, presented himself; but I discovered that I had made a mistake. The poachers had misdirected me. This vessel proved to be the English schooner Vancouver Belle, commanded by Capt. W. H. Copp, 23 men in crew. There were aboard the schooner nearly 600 seal skins, salt, powder, and arms. I ordered her confiscation, since it developed from her log book that a portion of the seals had been caught in the strait between the islands. I took the captain and crew aboard, and I charged Lieutenant Eoltchak to conduct her to Petropavlovsk. Immediately after the seizure a dense fog gathered, which robbed me of all possibility of discovering the cruiser Sayward. At 6.15 the fog lifted somewhat, and at a short distance I again sighted a schooner in 54° 10’ latitude north and 168° 22’ longitude east. The captain being requested to come aboard, presented his papers and his log book.

I learned from the log book that the American schooner Kate and Anna, detained by me at considerable distance off the islands, had twice been in the strait between the islands of Bering and Medny; that according to the captain’s word he had passed into the strait on account of the bad weather, and had not caught any seals in Russian waters.

There were absolutely no convincing proofs against the schooner; therefore, on account of the irregularities of the log book, I took all the seal skins to the number of 124 and allowed the latter to depart, after giving him warning.

(Signed)
Captain of Frigate de Livron.

The above extract is in conformity with the original report, which was upon the books of the acting major-general of marine, 1892, No. 194.

(Signed)
P. Mikhailow
, [l. s.]
Governor in Chancery of the Ministry of Marine.
J. Stebline-Kamensky,
Deputy of the Jurisconsulate.

EXHIBIT II.

Extract from the Journal Kept on Board the Second-Class Cruiser Zabiaka, during the protective cruise off commander islands in 1892.

Name and nationality of vessel: American sailing schooner Kate and Anna.

Cargo: One hundred and twenty-four seal skins, salt, shot, etc.

Tonnage:——.

Name of captain: Charles Lutgens.

Number of crew:——.

Circumstances of the case: On the 31st of July at 6.15, being in 64° 10’ latitude north and in 168° 22’ longitude east, we met the sailing schooner Kate and Anna. Having detained the schooner, we required the captain to report, with his papers. It was found that the schooner log had not been kept during the past ten days and the ship’s journal in general could afford not the least justification. Moreover, the points indicated on the navigation chart caused me to suspect that the seals had been killed in our waters. For this reason they were confiscated. The captain made no resistance.

Decision: On account of the irregularity of the log book I confiscated the seal skins and required the captain to sign agreement not to kill seals in Russian waters and to enter on log book the warning he received.

(Signed)
Captain of Frigate de Livron.