811.114 I’m Alone/119
The Canadian Minister (Massey) to the Secretary of State
Sir: 1. I have the honour to acknowledge the receipt of your note of the 17th. of April 1929, concerning the sinking of the Canadian schooner I’m Alone by the United States Coast Guard, and to state that I communicated it immediately to my government.
2. I have been instructed by the Secretary of State for External Affairs to inform you that His Majesty’s Government in Canada have given careful consideration to the contents of the note. They desire to convey their appreciation of the expression of gratitude on the part of the Government of the United States for the friendly co-operation of Canada in the prevention of smuggling of alcoholic liquors into the United States. The Government of Canada appreciates also the full and reasoned statement which you have presented of the facts and the principles of international law bearing on the case, as they appear to the Government of the United States. They regret, however, their inability to concur in certain important aspects of this presentation.
3. Upon the question of fact as to the position of the schooner when commanded by the revenue cutter Wolcott to heave to for examination and as to the speed of the vessel, there is marked discrepancy between the evidence of the Coast Guard officers and the evidence of the captain and members of the crew of the schooner. These discrepancies appear capable of solution only by an examination of all the evidence by an impartial tribunal, and it is therefore considered unnecessary to repeat the statements cited in my previous note, or to review the contrary evidence which has been furnished you through the Secretary of the Treasury.
4. It appears desirable, however, to advert briefly to a point brought forward in your note as proving that the position in question was within the hour’s sailing distance from shore within which the Convention of 1924 accords the right of search and seizure. The view is advanced that Captain Randell’s refusal to heave to when first commanded may be taken as evidence that he knew that he was within an hour’s sailing distance from shore, as he must have been [Page 44] aware that otherwise his vessel could not legally be seized and that he would have nothing to fear in complying with a command to stop and be examined. It is surely the contrary deduction that is to be drawn. Such a contention might be taken to lead to the conclusion that the further a vessel was out on the high seas and the less ground there was for an order to halt, the more readily should the order be obeyed. If the schooner was outside the treaty limits, an order to halt was without legal force. There had been a number of previous cases where vessels which had been seized were later found by the courts to have been outside the treaty limits, but where heavy loss followed the long delays involved in the court proceedings; in a number of cases claims have been advanced for compensation on such grounds.
5. Even, however, were it not established that the I’m Alone was beyond the treaty limits when ordered to stop, the Government of Canada cannot agree that any adequate ground has been established for pursuit on the high seas. They have previously indicated their view that the doctrine of hot pursuit which has been advanced is not applicable to a pursuit which, as is agreed to have been the case in the present instance, did not begin in territorial waters. The doctrine is adequately summarized by the latest and most authoritative United States expositor, as follows:
“The case (of hot pursuit) is one where a vessel has committed an offence against the territorial laws within the three mile limit. The agents of the local sovereign attempt to arrest the offender which endeavours to escape. If the pursuit is not brought to a successful end before the ship leaves territorial waters, the pursuit may be continuously pursued upon the high seas.” (Jessup, The Law of Territorial Waters and Maritime Jurisdiction, New York, 1927, p. 106).
The doctrine in any form has not found complete acceptance. Under the arbitral award of M. Asser, it was held that capture of the United States sealers James Hamilton Lewis and C. H. White on the high seas could not be justified on the ground of pursuit from territorial waters (1902 Foreign Relations of the United States, App. I., pps. 454–462). Where recognized, it is under the distinct limitation that the pursuit must be initiated within territorial waters. This limitation was clearly accepted by the Secretary of State of the United States in the address given shortly after the signature of the 1924 Convention, to which reference was made in my previous note. In his work, International Law, chiefly as interpreted and applied by the United States, (Vol. I, p. 420), Mr. Charles Cheney Hyde, after stating that “when a foreign vessel, after having violated the municipal laws of a State, within its territorial waters, puts to sea [Page 45] to avoid detention, conditions justifying immediate pursuit and capture on the high seas, on grounds of self-defence, are … rarely if ever present”, supports on the ground of effective administration of justice, pursuit and capture, “if the pursuit be commenced before the ship has actually escaped from the territorial waters”. Article VIII of the Rules on the Definition and Regime of the Territorial Sea, adopted by the Institute of International Law in 1894, confined the right to “a pursuit commenced in the territorial sea”. In the statement made in the Fur Seal Arbitration by Sir Charles Russell, which is usually relied upon as expressing the acquiescence of Great Britain in the doctrine, there is a significant qualification: “It must be a hot pursuit, it must be immediate, and it must be within limits of moderation”. In the case of the North, in the Canadian courts, which has been cited, pursuit began from territorial waters.
6. The contrary findings of United States courts in the Vinces, Pescawha and Newton Bay cases have not, as you have fully recognized, international validity, nor have they been accepted by either the British or the Canadian Government. With regard to the Vinces, His Majesty’s Ambassador in Washington communicated with the Secretary of State, asking for information regarding the attitude of the United States Government, and declaring that though not desiring to make any representations, His Majesty’s Government did not wish it to be thought that they accepted all the principles upon which the decision of the District Court had been based, and fully reserved their rights. As to the Newton Bay, which is still before the courts, and the Pescawha, the question of representations has been under discussion between this Legation and the Government of Canada. During the recent Conference on Commercial Smuggling in Ottawa, reference was made by the Canadian representatives to the tendency of the United States enforcing authorities to go beyond the letter and spirit of the Convention of January, 1924.
7. In support of the extended interpretation of the doctrine of hot pursuit, you have pointed out that the rights conferred by the Convention of 1924 are of a novel character and may therefore be taken as extending the right of arrest to a greater distance than had heretofore been acknowledged under international law; and state that one of the purposes of the Convention was to extend in effect the distance from the coast within which the jurisdiction of the United States might be exercised with respect to certain classes of British ships. The Government of Canada is unable to accept this view. The first article of the Convention expressed the firm intention of the high contracting parties to uphold the principle that the three-mile zone constituted the proper limit of territorial waters. The provisions as [Page 46] to search and seizure beyond the three-mile limit were explicit exceptions to that recognized principle. They did not extend the territorial limits of the United States nor confer any general jurisdiction. The very fact that the rights conferred were of a novel character appears to be a conclusive reason against still further extension by any forced construction. It is submitted that if any such extension had been contemplated it would have been effected by explicit agreement, as was done in the Treaty of Helsingfors of the 19th. August, 1925, between the Baltic States.13 This treaty, it will be recalled, provided for the mutual exercise of the right of search within a twelve-mile zone. It was clearly recognized, however, that such a provision did not involve extension of the doctrine of hot pursuit to cover pursuit originating within this enlarged zone. It was found necessary, in order to secure such a right, to provide explicitly in this treaty, “without prejudice to the attitude taken by each of the contracting parties with regard to the legal principle governing territorial and customs zones”, that “if a vessel suspected of engaging in contraband traffic is discovered in the enlarged zone hereinbefore described, and escapes out of this zone, the authorities of the country exercising control over the zone in question may pursue the vessel beyond such zone into the open sea and exercise the same rights in respect of it as if it had been seized within the zone”.
8. Nor is the Government of Canada able to recognize the force of the view that such an extension is to be implied, because otherwise the advantages granted by the Convention would be illusory. According to recent statements of the head of the Coast Guard Service, “the problem of Rum Row has been practically solved”, and “smuggling from the high seas is now only about one-eighth of what it was a few years ago”. Yet out of the scores of seizures effected, it is believed that only in four have the Coast Guard authorities themselves considered recourse necessary to the extended version of the practice. Even if the treaty had failed to yield the results anticipated, that would hardly appear to warrant its indefinite extension.
9. The chief remaining question is whether the force used, which resulted in sinking the vessel, was warranted. The determination of the degree of compulsion rightly exercisable in pursuit is not without difficulty. The force used, it is submitted, should in any case be limited to the minimum necessary to effect seizure, and be designed to make seizure possible. There does not appear to be warrant for the adoption of measures regardless of the outcome and such as to defeat the possibility of seizure and the necessary subsequent adjudication. If it was not possible to cripple the schooner without sinking her, or to board her in the weather prevailing, it is [Page 47] considered that it would have been possible to continue pursuit further without reaching the territorial waters of another state, during which time the weather might have cleared and boarding been effected. According to the deposition of the mate of the I’m Alone, the captain of the Wolcott stated later that he had urged this course on the captain of the Dexter, but his advice was disregarded. When all the circumstances are taken into account, including the persistent rifle fire and the putting of the crew in irons, the impression that is formed is of a distinctly punitive intent. The view that the responsibility for the sinking should be shifted to the captain of the schooner rests on two assumptions for which, as had been indicated above, there does not appear to be valid ground—that the schooner was within treaty limits when ordered to halt, and that pursuit beginning within the treaty limits but outside territorial waters would be justified. Whatever view may be taken of the course of the captain of I’m Alone, it would hardly appear possible to absolve from responsibility the captain and crew of the revenue cutter, who two hundred miles from the United States coast riddled the schooner with shells and plunged its crew into a rough sea, and to transfer the responsibility for the loss of life to the captain of the schooner for failing to provide life belts for such a contingency.
10. The case of the United States fishing vessel Siloam is cited as a parallel. Without taking the ground that the procedure of the Canadian preventive vessel Malaspina on that occasion was absolutely without fault, it may be observed that the two cases appear to present essential differences. The Siloam was found and pursued within Canadian territorial waters. Upon repeated refusals to heave to, and after threatening action on the part of the Siloam’s captain, the Malaspina fired shells around the vessel. Later, rifles were used with the object of disabling the steering gear, and one shot unfortunately killed a sailor on the Siloam. The vessel, however, was not sunk by shell fire, but apparently was scuttled by her crew.
11. I regret therefore to find that the Government [of the] United States and the Government of Canada have not been able to reach similar conclusions as to the facts in the present case and as to the applicable principles of law. Both Governments have an interest in the full and strict observance of international agreements, and it is desirable that a definite agreement be reached as to the interpretation of the treaty provisions which is to be accepted. The Convention itself provides the means for determining whether in any case the enforcing authorities have proceeded within the rights conferred by Article II. I am therefore instructed to say that His Majesty’s Government in Canada has much pleasure in accepting the proposal of the United States to submit the matter to arbitration as provided for [Page 48] in Article IV. of the Convention between His Britannic Majesty and the President of the United States of America of the 23rd. January, 1924. I shall be prepared to discuss with you at your convenience the procedure to be adopted to this end.
I have [etc.]
- League of Nations Treaty Series, vol. xlii, pp. 73, 79, art 9.↩