The Kate and Anna.
In this case the defendant party does not dispute that an indemnity is due to the owner of the vessel for the seal skins confiscated, but it disagrees with the party claimant upon the price of the skins.
Now, it was shown in the memorandum that the skins taken from aboard this vessel in the beginning of the season were sold at the rate of $14 each. This fact is not denied by the defendant party. It is content with the argument that the skins in question were not upon the London market, but in Bering Sea, and that the price should be reduced on account of that fact, because it would have cost something to transport them from where they were seized to London; consequently it proposes the price of $10 apiece.
The defendant party does not show whereon it bases this estimate of the cost of transporting the skins to London; but in any case, no claim for the reduction of price should be admitted.
The owner had the right to transport the skins in any way he chose, and the price he received in the beginning of the season, viz, $14 apiece, is the only just estimate for his cargo.
The defendant party denies the sworn testimony of the master of the Kate and Anna concerning the orders which were given him by the commander of the Russian cruiser. It was shown that Captain Lutjens, as owner of the vessel, is a responsible man, and his sworn testimony should be believed until disproved.
He emphatically swore that the commander of the cruiser ordered him to “stop sealing and go home.” This is denied by the defendant party, but without producing sufficient evidence to refute Lutjens’s declaration. No denial on the part of the commander of the cruiser has been submitted, although it would have been easy to produce if the officer had been ready to solemnly deny that he had used that language.
The log book of the cruiser shows that the commander obtained an agreement signed by the master of the schooner “not to kill seals in Russian waters.”
The question here is what the captain considered “Russian waters.” He inscribed in the schooner’s log book that “he was seized in 54° 9′ north latitude and 168° 21′ east longitude, though not exactly in Russian waters;” that is to say, that Russia claimed jurisdiction over the waters near the point where the seizure occurred, and which the defendant party does not deny was more than 30 miles from the Russian coasts. So it appears that the waters which are considered as belonging to Russia were well beyond ordinary marine jurisdiction.
It is quite probable that the report signed by the master of the Kate and Anna could be produced, and if it were of a character calculated to refute the statements of the master of the schooner it is difficult to [Page 361]understand why it was not presented as evidence in the counter memorandum. In fact, the latter is the document in the Russian language which Captain Lutjens swore he was forced to sign, and which he did not understand.
But the arbitrary act of the commander of the cruiser in confiscating these skins on the grounds, as he himself said, that Lutjens could not prove that he had not taken them within Russian waters, although he had no reason for the supposition, showed the master of the schooner the sort of treatment he might expect if he should again be overhauled by a Russian cruiser.
It is not to be supposed that the owner and master of the vessel would abandon his business in the middle of the season if he had been allowed the liberty of continuing it. The testimony submitted in the memorandum in support of the claims for the seizure of the James Hamilton Lewis, Exhibit F of said case, again cited here, shows plainly that Lutjens had no need to enter Russian jurisdictional waters to carry on his business. The only reasonable explanation of the abandonment of his voyage is found in his sworn declaration, viz, that he was ordered by the commander of the Russian cruiser to “stop sealing and go home.”
Moreover, the admission of the defendant party that an indemnity is due for the seal skins confiscated by Captain de Livron constitutes a distinct admission that the position taken by the latter that the onus probandi that the skins were not taken in Russian waters—that is to say, were not stolen—rests upon the master, is not tenable. It may be added that an officer whose views of personal rights are such that he considers one must prove that the goods in one’s possession are not stolen in order to retain legitimate possession of them, would seem to be capable of entertaining different views from other people on the subject of navigating and fishing at sea.
The question of measuring the damages by loss of catch has been considered in the memorandum as well as in the preamble of this rejoinder to the counter memorandum.
The case of the defendant party must be considered as being entirely presented, in view of the fact that the terms of the protocol do not admit of the party claimant presenting new proofs.
The party claimant therefore rests in the firm belief that the honorable arbitrator will in his award allow the total amount of indemnity claimed.