811.114 I’m Alone/76
The Canadian Minister (Massey) to the Secretary of State
Sir: I have the honour to acknowledge the receipt of Mr. Castle’s note of March 28th. 1929 in which he transmitted to me information furnished by the appropriate authorities of the Government of the United States concerning the sinking of the Canadian schooner I’m Alone by the United States Coast Guard on March 22nd. I did not fail to bring the contents of this note immediately to the notice of His Majesty’s Government in Canada, and I have now been instructed by the Secretary of State for External Affairs to thank you for the promptness with which my request for information was complied with, and to direct your attention to certain aspects of the incident.
[Page 25]2. The schooner I’m Alone, which was registered at Lunenburg, Nova Scotia, had unquestionably been engaged for a number of years, under various owners, in endeavouring to smuggle liquor into the United States.
3. In the present instance, the schooner I’m Alone arrived off the Louisiana coast early on the 20th. March, and anchored at a point which, according to the information furnished by Mr. Castle, was ten and a half miles from the shore, and according to the master was not less than fourteen and a half miles distant. On the approach of the United States Revenue Cutter Wolcott, the schooner hove up anchor and made off south by west. It is stated that half an hour later the cutter came up and ordered the I’m Alone to heave to for examination, and that her captain refused on the ground that he was not within United States jurisdiction. After firing some blank shots the Wolcott proceeded to a tanker steaming westward, and upon returning took up the pursuit. Following a fruitless colloquy on board the schooner between the captain of the Wolcott and the master of the schooner, pursuit continued; the cutter, after again demanding that the schooner should heave to, fired several shots through her sails and rigging. The pursuit was continued on the high seas for two days and two nights. On the morning of the 22nd, when the schooner was in latitude 25°41’ and longitude 90°45’, or over two hundred miles from the United States coast, the cutter Dexter came up from another direction and signalled to the schooner to heave to or be fired upon. The captain is stated to have refused on the ground that the coast guard vessel had no jurisdiction on the high seas. Fire was then opened with a three inch gun and rifles, some sixty or seventy shells being stated to have struck the schooner, though no member of the crew appears to have been hit. At frequent intervals the schooner was summoned to heave to, but repeatedly refused. Finally the schooner was sunk and the crew plunged into the sea, which was now rough from a rising gale. All the members were picked up by the two cutters, but the boatswain, a French citizen from St. Pierre, had apparently died from drowning before being picked up and could not be resuscitated. The crew were conveyed to New Orleans, and placed under arrest.
4. The adoption by the United States of a policy of national prohibition of the importation, manufacture or sale of intoxicating liquors for beverage purposes, differing materially from the policies in regard to control of the liquor traffic which were in force in the majority of countries, inevitably foreshadowed international difficulties through the likelihood of smuggling operations on a large scale. Owing to its close proximity and extensive common borders, no country was likely to be more concerned than Canada or more conscious of the desirability [Page 26] of making certain that all possible neighbourly requirements should be fulfilled. The United States Government is familiar with the extent to which the Government of Canada has endeavoured to fulfil this neighbourly obligation. Under a convention signed on the 6th. June 1924,2 provision was made for the furnishing of information regarding clearances issued to vessels suspected of being engaged in an attempt to smuggle goods into the other country, and for the refusal of clearances to vessels obviously unfit to carry their cargoes to the destination named in the applications for clearance. The extension in 1927 of the requirement of a bond in double duties on the exportation of liquor from Canadian Customs warehouses, to cover cargoes of vessels coming into Canadian ports for provisions, shelter or repairs, made it difficult for vessels with liquor cargoes which might be intended for United States consumption to establish bases in Canadian ports, and very materially aided the United States authorities in preventing smuggling by sea in the North Atlantic. The adoption in 1928 of measures, to take full effect in 1930, to prevent the storing of imported liquors, other than liquors imported by the provincial authorities, in Customs warehouses, particularly in Nova Scotia and British Columbia, from which re-export might be made after payment of duty, is leading to the elimination of another source of smuggling into the United States. Other measures have been adopted which have had similar results, and a conference has recently been held in Ottawa between United States and Canadian officials to consider the possibility of further action and proposals made for additional measures.
5. The most difficult problem, however, was that of the measures which could be taken to prevent smuggling along the coasts of the United States. It was apparent that difficulty would arise in controlling smuggling, particularly at the outset, if the preventive operations of the United States authorities were to be confined wholly to territorial waters. On the other hand, assent to the extension of such operations to foreign vessels on the high seas presented serious difficulty to other countries, in view of the vital importance of the long established rule of free passage on the high seas in time of peace. It was desirable that there should be an agreed and absolutely definite understanding as to how these conflicting interests could be reconciled.
6. The United States Government accordingly took the initiative in June 1922, in proposing to His Majesty’s Government in the United Kingdom the conclusion of a treaty authorizing the exercise of the right of search beyond the three-mile limit of territorial waters.3 Negotiations continued for over a year. In November 1923, advantage was taken of the presence in London of representatives of the Canadian and other Dominion Governments at the Imperial Conference of that [Page 27] year to discuss the question fully. The Canadian representatives supported the view that, while affirming the principle of the three-mile limit, it was desirable to meet the United States request for an extension of the right of search beyond the three-mile limit for the purpose in question. A Convention to this end, approved by all His Majesty’s Governments, was signed, and ratifications were exchanged, at Washington in 1924.4
7. The Convention, it will be recalled, was stated to be concluded because the parties were desirous of avoiding any difficulties which might arise in connection with the laws in force in the United States on the subject of alcoholic beverages. The parties reaffirmed their intention to uphold the three-mile limit of territorial waters. His Britannic Majesty agreed that he would raise no objection to the boarding of private vessels under the British flag outside territorial waters by United States authorities for enquiry and if appearances warranted, for search as to whether the vessel was endeavouring to smuggle liquor into the United States. If reasonable cause appeared for belief that the vessel had committed or was committing or was attempting to commit an offence against United States laws prohibiting the importation of alcoholic beverages, it might be seized and taken into a United States port. The rights so conferred were not to be exercised at a greater distance from the United States coast than could be traversed in one hour by the vessel suspected of endeavouring to commit the offence, or by any other vessel in which the liquor was intended to be conveyed to shore.
8. It was of the essence of the Convention that its provisions covered the whole field of extra-territorial seizures. The conclusion that seizures of British vessels outside territorial waters would not be warranted, except in accordance with the terms to be agreed upon, was clearly expressed in a note from the Secretary of State to the British Ambassador of the 19th. July 1923,5 as follows:
“It may confidently be asserted that there would be no disposition on the part of the American authorities, and the special agreement would not justify any attempt to seize a British vessel, save within the limits proposed, and when it was clear that the vessel concerned was directly involved in an attempt to introduce its illicit cargo into the territory of the United States”.
9. Animated, therefore, by a friendly desire not to hinder the Government of the United States in the enforcement of its laws, and anxious solely to uphold the exact performance of treaty obligations and the maintenance in full integrity of the rules which protect the freedom of traffic on the high seas, His Majesty’s Government in [Page 28] Canada has given most careful consideration to the circumstances of the sinking of the I’m Alone, as set forth in Mr. Castle’s note and in depositions made before His Majesty’s Consul General in New Orleans by the Captain of the vessel and by members of his crew. The conclusion has been reluctantly reached that, on the evidence now available, the pursuit and sinking of the vessel appears not to have been authorized either by the terms of the Convention of January 1924 or by the rules of international law.
10. It appears to be established that the vessel was at all times beyond the limit of an hour’s sailing distance from the shore. To determine the validity, under the Convention of January 1924, of any interference with the vessel when she was first sighted on March 20th. by the United States Coast Guard vessel Wolcott, it is necessary to examine the evidence regarding both the speed and the exact position of the I’m Alone. The testimony of the Captain concerning the vessel’s speed given before His Majesty’s Consul General in New Orleans, is as follows:
Q. “What was the speed of your vessel just before you anchored?”
A. “Positively not more than 6¾ knots” …
Q. “What is the longest run in 24 hours that the boat has ever done with engines running and sails set?”
A. “231 knots, with a moderate gale on the quarter, and then under conditions in which the vessel had to be in ballast. We did less with cargo” …
(After the Captain had described the beginning of the pursuit)
Q. “Could you give me any estimate of your speed?”
A. “At that moment at the very outside we were making about 6¾ knots, perhaps, it would be just about our best speed, as I knew that if I ran my port engine on full speed opened out that the old trouble would probably leave us in jeopardy”.
(The Captain previously testified that he was at anchor when observed by the Wolcott in order to examine his port engine, in which a bottom-end cylinder bearing had burned out)
The deposition of the mate of the I’m Alone, John Williams, contains the following evidence on the vessel’s speed:
Q. “What speed were you going then?” (i. e. when first hailed by the Wolcott)
A. “Roughly 7½ knots, sir”.
Q. “Could you do 8”?
A. “No, sir, couldn’t do eight knots with power. I had been looking after the log for 20,000 miles and the best we ever did with canvas and power and a gale was 9½ knots. [”]
Q. “You have never known her to do better?”
A. “No, sir”.
Q. “When she did that run were the engines in perfect condition?”
A. “Yes, sir. That was the first trip, we took her from Halifax to St. Pierre”.
The deposition of the Chief Engineer includes the following testimony:
Q. “What speed do you consider you could get out of the schooner with both engines well?”
A. “The condition in which the shape of the engines were we could not do better than 7½ knots, a little better with sails and a fair breeze. It was quite a good while since we were docked and the bottom was pretty dirty”.
From the testimony it appears that the vessel’s speed at the time her pursuit began, with one engine partially disabled, was not more than 7½ knots an hour, and that the best speed of which she was capable in the most favourable conditions was 9½ knots an hour. Since in the note from your Government it is stated that the vessel was “within approximately ten and one half miles of the coast of the United States” when sighted by the Wolcott, it appears that, if that indeed were her position, she was then beyond an hour’s sailing distance from the shore.
11. There are, however, reasons of considerable force for believing that the I’m Alone was in fact at a still greater distance from the shore than 10½ miles. The Captain, a navigator of long experience, has deposed that on the morning on which the pursuit began he had anchored in order to examine his defective engine, a purpose which provided no incentive to come close inshore. He plotted his course to his place of anchorage from a fixed point, the Trinity Shoal Light Buoy, which is some twenty four miles from the shore, and his evidence of his course thence to his anchorage is as follows:
“I was looking for an inconspicuous place to anchor to make examination of my engines. I ran on a course from that buoy west-north-west 5 miles and then north ½ west, which is true north another 5 miles, and allowing 2 knots of current with me to the north-west, I estimated my position, allowing for such current, to be 14½ to 14¾ miles from the coast of the United States. I knew positively from the speed of my ship and from the log which I had been using for thousands of miles to be correct, that I could not be any nearer in at that point after running such a short distance. I anchored there roughly, I do not know the exact time, I may be 10 or 15 minutes out, about 5 a.m. I had the intention of going out again shortly after if the weather was favourable and engines in good condition”.
The Captain’s statement of the distance run from the Trinity Shoal Light Buoy to his anchorage is supported by the mate’s evidence as follows:
Q. “Could you see the Trinity Shoal Light Buoy?”
A. “Yes, sir. We passed it”.
Q. “How far do you think you were from the Buoy? When you anchored?”
[Page 30]A. “The Captain told me that when she ran 5 miles west-north-west to let him know, which I did, after that he changed the course to north and told me to let him know when she had ran 5 miles”.
Q. “Did you then drop anchor?”
A. “He gave me orders to drop anchor. The engines had to be fixed”.
This course of the vessel, making allowance for current as stated in the Captain’s testimony, would place the position at which she anchored between 14½ and 15 miles from the shore.
12. In any case the pursuit lasted through two days and two nights, far beyond the starting point, and the sinking took place over two hundred miles southward in open sea. It has been intimated that pursuit and seizure on the high seas might be justified on the ground of hot and continuous pursuit. It is agreed that international law recognizes that pursuit begun within territorial waters may be continued on the high seas, if immediate and continuous. The validity of this doctrine has been fully recognised by Canadian courts. It does not, however, appear to apply to the present case. The pursuit did not begin within the territorial three-mile limit which is an essential factor. That the pursuit should be initiated within strictly territorial waters was clearly recognised by the Secretary of State in an address on January 23rd. 1924, shortly after the signature of the treaty:—
“It is quite apparent that this government is not in a position to maintain that its territorial waters extend beyond the three-mile limit, and in order to avoid liability to other governments, it is important that in the enforcement of the laws of the United States this limit should be appropriately recognised. … It does not follow, however, that this government is entirely without power to protect itself from the abuses committed by hovering vessels. There may be such a direct connection between the operation of the vessel and the violation of the laws prescribed by the territorial sovereign as to justify seizure even outside the three-mile limit. This may be illustrated by the case of ‘hot pursuit’, where the vessel has committed an offense against those laws and is caught while trying to escape. The practice which permits the following and seizure of a foreign vessel which puts to sea in order to avoid detention for violation of the laws of the State whose waters it has entered, is based on the principle of necessity for the effective administration of justice”. (Foreign Affairs, Special Supplement to Vol. II, No. 2, pps. IV. and V.)
It is further to be noted that the cutter which sank the schooner had not participated in the original pursuit, but had come up from an entirely different direction two days later. Under these circumstances, the most essential elements of justification under the doctrine of hot pursuit appear to be lacking.
[Page 31]13. It is desired, finally, to bring to your attention the exact language of section 2 of Article II of the Convention of January 1924:
“If there is reasonable cause for belief that the vessel has committed or is committing or attempting to commit an offence against the laws of the United States, its territories or possessions prohibiting the importation of alcoholic beverages, the vessel may be seized and taken into a port of the United States, its territories or possessions for adjudication in accordance with such laws”.
The right of seizure conferred by this Article may be admitted to carry with it constructively the right to exercise the minimum amount of force necessary to effect seizure. Even within the treaty limit, His Majesty’s Government in Canada would be loth to admit that the phrase “the vessel may be seized and taken into a port of the United States” would warrant action so drastic as the destruction of a vessel; still less does authority appear to be conferred for the destruction of a vessel by shell-fire on the high seas, accompanied’ by loss of life, after a pursuit lasting for two days. It further seems probable that the Wolcott could have boarded the I’m Alone without endangering either vessel soon after the I’m Alone was first sighted by the Wolcott on March 20th. The evidence of the Captain on this point is as follows:
Q. “Could she have boarded you at that time? Assuming that she could have run up alongside?”
A. “Yes, sir. He might possibly have done so had he tried”.
Q. “Did he try?”
A. “No, sir”.
The mate deposed on the point as follows:
Q. “Could he have come alongside at that time had he wished?”
A. “Easy”.
Q. “Did he?”
A. “No, sir”.
It clearly appears furthermore that, when the United States Coast Guard vessel Dexter joined in the pursuit on March 22nd. and commenced firing on the I’m Alone, it was with the deliberate intention of sinking the vessel and not merely of rendering her helpless, as might have been done, for example, by crippling her rudder. The mate of the I’m Alone records in his deposition the following conversation with the Captain of the Wolcott after he had been rescued from the sea:
Q. “Did you speak to any of the crew of the Wolcott?”
A. “They were talking to us. The Captain said to me that it was too bad, he said he would not have done it. He said that he advised the Captain of the Dexter to wait for smoother weather and he would have gone up alongside and tried to put men on board and avoid bloodshed”.
I may add that Captain Randell denies that he ever threatened to use force if an attempt were made to board his ship, or that he flourished a revolver at any time during the pursuit; his testimony is supported by the evidence of the mate and chief engineer. If, as is intimated, the sea was too rough for boarding, it was doubly unfortunate that the vessel was deliberately sunk and the crew plunged into the sea, in imminent peril of drowning, with the result, in fact, of the death of one member of the crew.
14. I have been instructed to state that His Majesty’s Government in Canada remains fully convinced of the desirability of continued co-operation with the Government of the United States in dealing with the smuggling traffic under the Convention of January 1924 and the other measures to which I have alluded; there is no desire to support in any way vessels engaged in this traffic against any measures adopted by the United States for the enforcement of its laws which in their international aspect have been the subject of agreement. It is believed, however, that the Government of the United States will agree that it is essential for the effective operation of the Convention of January 1924 and for the attainment of the definite and agreed procedure which was the object of the contracting parties, that the terms of the Convention should be strictly observed. His Majesty’s Government in Canada trusts that the Government of the United States will further agree that the search and seizure of vessels beyond territorial waters should be exercised in accordance with the terms of the Convention, that pursuit should not be continued beyond an hour’s sailing distance from the shore unless initiated within territorial waters, that the measures adopted for enforcing the rights conferred by the Convention should be confined to the reasonable minimum necessary for their enforcement, and that in the present instance the extreme course adopted constitutes just ground for such redress as is now possible.
I have [etc.]
- Foreign Relations, 1924, vol. i, p. 189.↩
- See ibid., 1922, vol. i, pp. 558 ff., and ibid., 1923, vol. i, pp. 133 ff.↩
- Convention signed January 23, 1924; ratifications exchanged May 22, 1924, Foreign Relations, 1924, vol. i, p. 158.↩
- See telegram No. 193, July 20, 1923, to the Chargé in Great Britain, ibid., 1923, vol. i, p. 168.↩