The “Cape Horn Pigeon.”
In the first case, as in those following, the defendant party refers to the arguments submitted above to the honorable arbitrator in the present rejoinder and its annexes and maintains the same conclusions developed in the counter-memorandum.
Regarding the fact that this is a question of a whaler, set up by the party claimant, the defendant party declares that the interdiction of hunting under penalty of confiscation of vessel and cargo, contained in the notice published in 1881–82, extended to all the animals of the sea (Exhibit F) and consequently also to whales. As has been said in the counter-memorandum, if Lieutenant von Cube, commanding the Russian schooner Maria, believed that the seizure was in consonance with the duty with which he was charged of arresting vessels engaged in illicit sealing, it was because he suspected the Cape Horn Pigeon of being one of those vessels which act as depots for the spoils of such hunting.
The defendant party has declared itself ready to reimburse the parties in interest to the amount of $2,500 ($1,000, $200, $210, $50, $1,040), with interest at 6 per cent from September 15 (27), 1892, but it rejects all the other demands.
The defendant party maintains on its behalf that there is a repetition for the same object in the American memorandum in relation to the indemnity to the crew for services rendered in bringing the schooner Maria to Vladivostok. Discarding all idea of outrage, the defendant party recalls attention to the very exceptional situation at that time regarding the supervision of the western portion of Bering Sea, and states that Lieutenant von Cube acted in perfect good faith in bringing to Vladivostok an American bark regarded by him as suspicious, and obliging the crew thereof to take service on a Russian war ship. The defendant party is ready, however, to turn over the sum of $1,000 for such service, as well as the sums of $200 expenses of board, $210 for lodgings, and $50 for the personal expenses of the captain, and further, $1,040 for the general expenses of the owners of the bark.
With regard to the bad treatment alleged to have been inflicted on the crew, the defendant party protests, as it has always done, against these allegations, which are bare of any sufficient evidence.
The defendant party believes that it has sufficiently developed in the counter-memorandum and in the present rejoinder the reasons why it is unable to admit that the present case, as well as the others, could offer grounds for indirect damages, inasmuch as the arguments set forth above are not specially applicable to sealing, but relate to the hunting of all marine animals. The defendant party further points out that the party claimant has put forward very particularly the obligation of making restitutio in integrum. But it does not seem that this term [Page 397]of Roman law is applicable to the present case; it relates to the canceling of the legal consequences of a certain act, that is to say, the reestablishment of the original situation of rights by reason of certain circumstances, for instance, for the state of minority of the person who has concluded a contracts.a The special rule which concerns cases of this nature can not be confounded with the qualifications of settlement of damages. It must be stated again in this connection that even by the term lucrum cessans could not be understood every sort of profit that a person might eventually be able to obtain if an unexpected circumstance had not occurred to prevent, but by it should be understood the profit on which that person could count with certainty. The Roman laws (Fr. 29 ad leg. Aquil. 9, 2) said positively that if a net was damaged one could not estimate the value of the fish which, owing to that circumstance, could not have been taken. The defendant party only feels itself bound to make restitution for the real damage, damnum emergens, as having acted in a case of force ma jure and of legitimate defense owing to exceptional circumstances, and in making use of that which was its right within the limits which the party claimant can not do otherwise than recognize; consequently the defendant party invokes in this place the adage, qui jure suo utitur, neminem loedit.
- Windscheid. Manual of Pandectic Law, section 114 et seq.; Gudsmidt. Courts of the Pandectes, section 109 et seq.↩