The James Hamilton Lewis.
On the 18th (30th) of May, 1896, the Imperial Russian Government presented to the United States diplomatic representative at St. Petersburg a memorandum emanating from the imperial minister of the Russian navy, which undertook to demonstrate, from the Russian point of view, the facts of the seizure of the James Hamilton Lewis. (Exhibit H of the memorandum, case of James Hamilton Lewis.) In the memorandum it is declared that the schooner was overhauled by the Russian cruiser at 5.15 a.m. at 12 miles from the Copper Island, after having sighted her at 4.40 o’clock on the same morning at a point alleged to be within the Russian jurisdiction.
On July 23 (August 4), 1898, the United States diplomatic representative, referring to these figures, called the attention of the Imperial Government to the fact that the seizure having been made at 12 miles from the coast, after a chase lasting not over half an hour, it was impossible for the James Hamilton Lewis to have been in Russian territorial waters at the moment it was sighted, and that the nearest point of proximity possible was 6 miles from the coast. (Exhibit N of the memorandum, case of the James Hamilton Lewis.) In reply to that communication the Imperial Government caused another memorandum to be sent to the United States ambassador from the minister of marine (Exhibit N), under date of October 19, 1898, which, without noting any alteration with regard to the hour of the overhauling the James Hamilton Lewis by the Russian cruiser, shows that the distance was 11 miles from the Russian coast at the moment of arrest. The exhibits attached to the counter memorandum are now seen for the first time by the party claimant, although the correspondence on the subject of the seizure of the James Hamilton Lewis has continued for more than six years, and it is only now informed that the hour of the seizure was 6.15 instead of 5.15, as stated in the first place.
It must be admitted that there is here a certain lack of accuracy in the figures, which might be found, also, in the definite statements as to the positions of the vessels, that of the James Hamilton Lewis when it was sighted being determined by appearances, which are known to be excessively deceptive, and which vary with atmospheric conditions. As to the point at which the James Hamilton Lewis was overhauled by the cruiser, the defendant party has not submitted one single proof to establish her distance from land, and it is even evident that the captain of the cruiser had but vague impressions on this point, since he states in one document that the seizure took place at 12 miles and in another at 11 miles from the Copper Island.
But in any event, the defendant party has never pretended that the James Hamilton Lewis was found in a proximity of less than 5 miles from Russian land. To justify the seizure, the defendant party claims [Page 349]a jurisdiction over the waters to that distance from the coasts. It can not be pretended now that the James Hamilton Lewis was within 5 miles of the Russian coast on the morning in question, and if it was not within that distance of the land it was not within the limits of the jurisdiction to which the defendant party claims a right.
But the Imperial Russian Government has declared on several occasions in its public documents, as well as in its correspondence, that the limits of its jurisdiction did not extend beyond 3 miles from the coast. See Exhibits B B and C C of the Cape Horn Pigeon, in the memo randum, and Exhibit A, hereunto annexed, viz, a certified translation of clause 21 of the imperial Russian navy prize rights, wherein is shown the limit of maritime jurisdiction claimed and recognized by Russia as being 3 miles. And from the publication of these documents until the moment of the seizure of the James Hamilton Lewis Russia has never publicly claimed a more extended maritime jurisdiction.
The party claimant does not propose to enter into a discussion of the question of the extent of marine jurisdiction which should be recognized to-day and which is not within the scope of the present litigation, but it holds to the opinion that no government having publicly proclaimed that its marine jurisdiction is limited to 3 miles can exercise a more extended jurisdiction, in order to enforce its municipal laws, without previous notice to those whom it may concern.
But aside from the question of marine jurisdiction over the point in which the James Hamilton Lewis was navigating, the counter memorandum of the defendant party does not contain the least affirmative proof that this vessel, her master, or her crew had ever been engaged in any illegitimate business whatsoever, either against international law or the municipal laws of the Russian Empire. The defendant party has not presented proofs that it sustained any damage or losses of any description in which the James Hamilton Lewis could justly be accused of being implicated.
Now, the case presents only the facts that the Russian Government owns certain islands whereon there are fur seals; that near these islands its agents found a vessel whose occupation was catching fur seals in mid sea, a business well recognized at that time as legitimately carried on on the high seas, and the Russian Government, through the medium of its agents, seized and confiscated said vessel simply on the suspicion that, being in Russian territory, it had violated Russian municipal laws. The party claimant, far from denying that aboard the James Hamilton. Lewis were found skins of fur seals, on the contrary declares that this vessel, while pursuing its legitimate business, had caught fur seals on the high seas, and it is for the skins of the seals thus caught and later confiscated by the Russian Government that it now seeks payment in the present arbitration.
The reports of Thomas Morgan and John Malowansky, cited in the memorandum (case of the JamesHamilton Lewis, Exhibit F), prove that these skins, being the skins of females, constituted a typical pelagic catch. That is to say, that the seals in question were not taken either on or near land, but on the high seas, as has been declared by the captain and crew of the James Hamilton Lewis:
Neither is the fact contradicted that aboad the vessel were the skins of two small seals, too young to swim; but Exhibit F of the same case of the memorandum is again quoted as evidence in support of the fact that the presence of these two skins constituted, on the contrary, [Page 350]a proof that the schooner was engaged in fishing on the high seas. The party claimant has abundantly demonstrated that young seals are often taken alive from the bellies of their mothers, that it is a common occurrence in pelagic sealing, and that the skins of these young seals constitute a class of merchandise regularly quoted on the London market. However, the defendant party still holds the view that the presence of these skins of young seals aboard the James Hamilton Lewis was a proof that they had been caught on the islands. But the defendant party failed to produce any testimony as to the nature of these skins of young seals, or that they were other than as sworn to by the master of the schooner. The defendant party states that an expert declared that these skins were of young seals taken on the islands, but as he furnished no testimony in support of this declaration it should not be admitted as evidence. In fact, this testimony is based only on hearsay. In order that the presence of these skins of young seals aboard the James Hamilton Lewis weigh against the corroborative testimony presented in Exhibit F, in support of the sworn statements of Captain MacLean it must be very clearly shown that these young seals had been taken not only on land, but on Russian land, for it must be remembered that the American Seal Islands were quite as convenient to poachers as those of Russia.
The defendant party maintains the opinion that the resistance to seizure on the part of the master of the James Hamilton Lewis constitutes proof that he felt guilty. Such interpretation of his action is not justified. The master felt he was where he had perfect right to be and was engaged in legitimate business, and believing that no one had the right to molest him he exercised his absolute rights by resisting his seizure on the high seas. Neither does the fact, if it be a fact, as stated but not proven, that he had hidden the skins of seals he had caught, admit of interpretation of possession without right.
If the captain feared that they would be confiscated if discovered, although he had obtained them legitimately, it appears that his fear was but too well founded, seeing the confiscation of the sealskins aboard the Kate and Anna, which the defendant party admits was illegal.
The defendant party undertakes, in the counter memorandum, to demonstrate that the fact that the captain of the James Hamilton Lewis failed to produce the log book of the schooner is a proof of guilt. One may not rightfully put such a construction on the captain’s reticence. As has been shown in the memorandum, the captain presented all of the documents they had the right to ask on the high seas according to international law. He kept in reserve his journal to prove an alibi when the proper moment should arrive—that is to say, when he had been conducted before a prize court where he would have a chance to furnish testimony in his own defense before competent judges and not before his captors. But this opportunity was never accorded him. His case was tried by his captors, who showed him the act of confiscation after having signed it. It was then that he inscribed his protest in the act, still reserving his evidence until he should reach his own country, there to present it to his Government with all the proofs in support of his claim and of the shipowners and crew of his vessel.
A copy of this log book was included with the documents annexed to the note of the United States minister at St. Petersburg, presenting [Page 351]the case to the attention of the Imperial Government the 11th July, 1894 (Exhibit G of the present case of the memorandum), and that it was duly received is clearly demonstrated by the note of the imperial Russian minister of foreign affairs of the 18th May, 1896 (Exhibit R of the memorandum of the same case).
The defendant party has no reason to complain of the delay in the delivery of the original of this document, nor to express doubt of its authenticity on account of that delay. The captain of the James Hamilton Lewis was not obliged to prove an alibi to the commander of the Russian cruiser; on the contrary, the onus probandi of wrongdoing rested solely upon the latter. Even though the James Hamilton Lewis had been at the moment she was sighted in Russian territorial waters her pursuit into open sea, where she was seized, required absolute proofs of the wrong of infraction of the municipal laws within the jurisdiction of Russia to justify her detention if only for an instant.
The defendant party permits itself to be carried away by its desire to discredit the authenticity of the log book. No repeated demands were made by the defendant party of the party claimant for the production of the log book; on the contrary, a copy of the log book, which it seems is in every respect the counterpart of the original, was submitted to the defendant party, as has been stated above, in the presentation of the case. This took place three years after the seizure. In 1896 the party claimant expressed the desire to submit the original log book to the defendant party for examination in order that he might compare it with the copy and assure himself of its authenticity, which the party claimant believed to be evident, and in fact this desire was verbally repeated several times by the diplomatic representative of the party claimant, but not until a year later did the defendant party consent to examine the document.
The defendant party in its counter memorandum disputes the authen ticity of the log book; but it has never presented any testimony, either expert or of facts, to support its position. It expresses the opinion that the fact that a number of entries are made with the same ink is suspicious. It is more than probable that a vessel of this character was not provided with a great variety of inks, and that the same officer being in charge of the entries always used the same ink. As to the simple opinion of the defendant party regarding the authenticity of the log book, the party claimant refers to his former arguments on that subject in its memorandum and the fact that the captain and several members of the crew testified under oath to its authenticity.
Thus, in the absence of contrary testimony, this document should be accepted as valid and authentic.
The defendant party raises the fact that the party claimant, in submitting the copy of the log book presented to the honorable arbitrator, failed to include the indorsement in Russian written upon the original logbook by the imperial minister of marine on the occasion of its delivery to the Imperial Government for examination by the diplomatic representative of the United States. The party claimant considers this indorsement, made long after the occurrence of the events which form the subject of the present arbitration, as entirely inapplicable and unimportant.
Moreover, any indorsement upon a document thus submitted is unjustifiable and irregular, and can not be considered as forming a part of the log book. Such as it is, however, it remains upon the log book, [Page 352]which is now in the hands of the honorable arbitrator, and the defend ant party evidently possesses a copy.
Regarding the treatment which the captain and crew of the James Hamilton Lewis suffered at the hands of the Russian authorities, the defendant party is content to protest in general against the testimony offered by the party claimant. It is, however, difficult to say what further proofs could have been produced by the party claimant in support of allegations of such nature. The party claimant presented the sworn depositions of five witnesses relative to the alleged bad treatment. The burden of refutation of this testimony remains, therefore, upon the defendant party, who failed to furnish any proofs whatever that would show the contrary or would in any way destroy the credibility of these witnesses. On the contrary, the defendant party admits that because of their resistance these men were submitted to “more rigorous measures” than would have been employed if they had not resisted arrest. But their arrest being illegal and on the high seas they had a perfect right to resist, so that damages are due them on account of the severe measures which the defendant party acknowledges having taken against them.
But apart from all question of bad treatment, these men are entitled to indemnity on account of their illegal seizure and their detention as prisoners, and in this connection the arguments set forth in the general consideration of the questions submitted to arbitration are again cited here, together with the testimony showing the amount of damages awarded to the Russian Captain Dahlberg for having been illegally arrested by the United States authorities.
The counter memorandum of the defendant party has in no way altered this case such as set forth in the memorandum of the party claimant.
The James Hamilton Lewis was seized in open sea, entirely beyond Russian jurisdiction, which this vessel never reached.
The Russian Government produced no proof to show that it had penetrated such jurisdiction, that any wrong whatsoever had been committed by anyone whomsoever within Russian territory, or that the James Hamilton Lewis, or anyone whomsoever aboard this vessel, had in any way contravened the municipal law of Russia within Russian jurisdiction.
The vessel was seized simply upon a suspicion, which was in no way verified.
On the ground of this suspicion the vessel was confiscated without submitting its case to a prize court, as the laws of nations require, but upon an act of confiscation drawn up by a commission composed of those who had made the seizure. That is to say, that the officers who made the seizure were their own judges, and their decision by which they justified their act was rendered not only without permitting the captain and crew of the James Hamilton Lewis to justify themselves, but contrary to all the evidence in the case.
Nothing in the evidence of the officers of the Russian cruiser can in any way implicate the James Hamilton Lewis, her captain, or crew in sealing in Russian waters. It is admitted that this vessel was engaged in pelagic sealing; and consequently there were aboard her a variety of instruments necessary to that occupation. The officer detailed for the investigation declared that he discovered evidences of a hasty putting in order, but he does not specify in what that haste consisted. This fact [Page 353]can not be accepted as proof, even though it was demonstrated. He discovered a tub containing reddened water covered with a red flannel shirt. This shows that a member of the crew had been employed in washing a red shirt of inferior dye, but it does not prove that the James Hamilton Lewis had been sealing in Russian waters any more than the fact, if it were a fact, that the seal skins were strewn with salt to preserve them is a proof of guilt.
The Copper Island is the most remote Russian possession in Bering Sea. To the east, to south, and southeast of that island there is no Russian territory. The Russian territory nearest that island is the Bering Island, situated a little to northwest. The schooner James Hamilton Lewis was, when sighted by the Russian cruiser, sailing toward the Copper Island, coming from the southeast. It was nearest the Copper Island at the moment it veered from north. If she had been engaged in sealing in Russian waters, how could her course have been northwest, advancing toward Copper Island? It has not been claimed that this vessel nor any other vessel had been navigating in the vicinity of Russian land.
No proof has been produced by the defendant party to refute either the statements made by Captain MacLean or the proofs submitted by the party claimant. And no proof has been presented to corroborate the simple suspicion formed by the Russian officers that the James Hamilton Lewis had already been, or contemplated, trespassing upon Russian jurisdictional waters.
On the other hand, it has been clearly demonstrated that the James Hamilton Lewis was confiscated and that her officers and crew were detained prisoners, all the evidence showing that these men suffered harsh treatment.
The claimant party therefore submits to the honorable arbitrator—
- That the James Hamilton Lewis was illegally seized in open sea by the defendant party, and that for such seizure, as well as for the subsequent confiscation, the owners of the James Hamilton Lewis are entitled to damages amounting to the entire value of the vessel and of her equipment.
- That because of the illegal seizure of the James Hamilton Lewis in the midst of the sealing season the defendant party unjustly deprived the owners, the officers, and crew of the James Hamilton Lewis of the use of their vessel, and consequently of the legitimate pursuit of their calling, and that for the deprivation of the services of the vessel they are entitled, restitutio in integrum, to an indemnity, the just measure of which is the probable catch of seals that the vessel would have made during the remainder of the season.
- That with the confiscation of the vessel the defendant party confiscated 424 seal skins, valued at the time at $14 each, for which the owners, officers, and crew of the James Hamilton Lewis are entitled to full indemity.
- That the officers and crew of the James Hamilton Lewis are entitled to an indemnity for having been illegally imprisoned and ill treated.
- That according to the admission of the defendant party there is due upon the total that may be granted interest at the rate of 6 per cent from the moment of the seizure until the day of payment of the indemnity for these losses, to the interested parties.
- Remark of the administration of codification: These rules were elaborated by a special commission in 1869, and in submitting them to the director of the ministry of marine his excellency ordered the following resolution: “Send this collection to the commander of the Pacific Squadron for his information and guidance; also to endeavor to send these rules to all vessels about to sail abroad on the 16th of September, 1869.” In executing this resolution to transmit them to vessels, there were printed 200 copies. In 1871 a new commission was called, under the presidency of Admiral Istomine, to examine the rules concerning capture and recapture. That commission has not yet completed the duty with which it was charged.↩