811.114 Josephine K./167
The Canadian Chargé (Wrong) to the Secretary of State
Sir: I have the honour to refer to your note of January 31st, 1931, with which you transmitted, in response to my verbal request, a report from the United States Treasury Department concerning the circumstances attending the seizure by the United States Coast Guard of the Canadian vessel Josephine K. on January 24th, 1931, together with a copy of the record of the proceedings of a Board of Investigation into the same matter composed of officials of the United States Coast Guard.
I have been instructed by the Secretary of State for External Affairs of Canada to bring the following observations on this matter to the attention of the Government of the United States.[Page 82]
It appears that the Captain of the United States Coast Guard vessel C. G. 145 opened fire with a one-pounder gun and that, as a result, the Master of the Josephine K. was fatally wounded. Mr. Bennett desires me to express his appreciation of the expressions of regret for the unfortunate result of this incident, which are contained in the Report of the Treasury Department and in the findings of the Board of Investigation, and also of the measures adopted by the Captain of the C. G. 145 to secure medical attention for the Master of the Josephine K. He regrets, however, that he cannot agree that the circumstances of the case warrant the view that the death of the Master of the Josephine K. was unavoidable, or with the view that the action of the Boatswain, Karl Schmidt, United States Coast Guard officer in charge of the Coast Guard Patrol Boat C. G. 145, in carrying out the orders indoctrinated by the Coast Guard, in seizing the Josephine K., should be commended.
The primary question which arises is the location of the vessel. His Majesty’s Government in Canada feel justified in assuming that the Government of the United States will agree that the use of force, resulting in killing a Canadian citizen on a Canadian ship on the high seas, could only be justified, if at all, by establishing circumstances that would authorize the boarding of the Josephine K. under the provisions of Article II of the Convention of January 23rd, 1924.14 They also feel justified in assuming that the Government of the United States will agree that the burden of establishing the existence of such circumstances is upon the United States authorities, and that the existence of such circumstances must be proved beyond all reasonable doubt. The Josephine K., admittedly, was on the high seas. In order to justify boarding, it must be established that the Josephine K. was within one hour’s sailing distance from the coast of the United States. So far from establishing this distance beyond a reasonable doubt, the Report of the Treasury Department and the record of the Board of Investigation, it is submitted, establish conclusively that the Josephine K. was at all times more than one hour’s sailing distance from the coast of the United States.
In the Report from the Treasury Department, dated January 31st, 1931, the first paragraph states:
“At approximately 8:15 p.m., 24 January, 1931, the Canadian oil screw Josephine K. of Digby, Nova Scotia, official number 152491, was seized by the United States Coast Guard patrol boat CG–145, attached to Section Base Two, Staten Island, New York, in Latitude 40°24′30″ North, Longitude 73°44′18″ West, 10.6 miles distant from the coast of Long Island, N. Y. The Josephine K., with an unmanifested [Page 83] cargo of liquor, was discovered by the patrol boat CG–145 in Latitude 40°25′36″ North, Longitude 73°46′74″ West, 9.4 miles distant from the coast of New Jersey, in contact with and trans-shipping cargo to the American barge Brooklyn, which was in tow of the American steam screw Dauntless No. 6. After a chase of approximately ten minutes, during which the use of gunfire was made mandatory by the refusal of the Josephine K. to heed the Klaxon signals, blank charges and warning shots of the patrol boat, the Canadian vessel was brought to by a solid shot which registered a direct hit on the pilot house and the seizure was effected in the position first above mentioned. The registered speed of the Josephine K. as shown on the British register No. 152491 found on board is eleven knots.”
This Report apparently accepts the testimony of Boatswain Schmidt in respect to the location of the Josephine K. when first discovered and in respect to the location at the point of seizure. It assumes that the locations of the point of seizure and of the point of anchorage are identical, and accepts the finding of the Board of Investigation to the effect that drift is a negligible factor in this case. It rejects, completely, the testimony as to location given by Commander Birkett and Lieutenant Short of the United States Coast Guard vessel Sebago, who were sent to the point of anchorage for the express purpose of establishing its location. In view of the fact that these officers had instruments and other facilities for establishing location which were not available to Boatswain Schmidt, it is not easy to understand the rejection of their testimony, and particularly of the data which they have rendered available in their evidence for establishing the point of anchorage.
An examination of the evidence shows that no bearings or measurements whatsoever were taken at the point of discovery and that Boatswain Schmidt’s testimony in locating it at the point in question is based entirely upon his inference that the Josephine K. travelled two miles in ten minutes, to the point of seizure. It is clear that when he gave his testimony he was under the impression that the Josephine K. was capable of making more than 12 knots per hour.
It is clearly established by the evidence that the Josephine K. travelled a much shorter distance than two miles between the point of original discovery and the point of seizure, for the following reasons:
- First. The average speed of the Josephine K., as established by speed tests conducted by the Board of Investigation on January 29th, 1931, was 9.535 knots per hour and her maximum speed 9.6 knots per hour. This would establish that the Josephine K. could not possibly have travelled more than 1.6 knots in the ten minutes, if she had started at full speed without change of direction to the point of seizure.
- Second. Boatswain Schmidt, in the evidence at p. 24, admits that he would make less than two knots during the chase of ten minutes, in view of the fact that the course was against a flood tide.
- Third. Boatswain Schmidt, in the evidence at p. 24, admits, as indeed would be common knowledge, that the Coast Guard vessel did not make full speed until about three or four minutes had elapsed. Again, at p. 26, he points out that at the beginning C. G. 145 was not making 1,200 revolutions. She was only making 600, then the speed was gradually increased to 900, then to 1,200 revolutions. It is a fair assumption that the Josephine K. must have had a corresponding experience and did not attain full speed until the expiration of at least three minutes. To begin with, the vessel apparently had to turn in her course in order to head in a direction south-easterly from Ambrose Light. Assuming that it took three minutes, which in any event is a minimum time to attain the maximum speed, the distance covered in the ten minutes would not be more than 1.36 miles. This is without making any allowance whatever for the fact that the chase was conducted against a flood tide.
It is not intended to concede that the Treasury Department is justified in rejecting the data established by the Reliance and Sebago and in accepting, instead, that of Boatswain Schmidt, which is the only evidence on record which is put forward as justifying the action. The records of observations made by the Sebago, as set forth in the evidence, have been examined by technical officers of the Government of Canada. They have reported that on plotting the visual and radio bearings it was found that both produced poor intersections, the former being the better, but that two visual bearings to Ambrose Light Ship and Navesink Light and the radio bearing from Sandy Hook gave an almost perfect intersection, which has been accepted as the anchored position of the Josephine K. This position is distant from the Long Island and New Jersey coasts 11.5 and 11.6 miles, respectively. Traced from this point the probable position of the Josephine K. when first discovered would be not more than 11.0 and not less than 10.7 miles from the Long Island coast, and not more than 10.9 and not less than 10.4 miles from the coast of New Jersey. It thus appears that the Josephine K. must have been, at all times, at a greater distance from the coast of the United States than the vessel could have traversed in an hour.
In view of these circumstances, it is established beyond all possible doubt on the basis of the testimony given at the Investigation, that the point of original discovery must necessarily have been more than an hour’s sailing from the shore, and consequently that the whole of the action, including the signals to stop, the warning shots and the shots that struck the Josephine K., was illegal and not justified in any way.[Page 85]
It is observed that the Report of the Board of Investigation to the Treasury Department proceeds upon the assumption that the jurisdiction exercised by the Coast Guard extended twelve nautical miles from the shore. Whatever may be the position with respect to United States ships and nationals, it is clear that as regards a Canadian vessel, jurisdiction beyond territorial waters, which is based on the Convention, extends to an hour’s sail, whether that be more or less than twelve miles distance from shore.
In view of the conclusive evidence as to location, it does not appear to be necessary to consider the question whether force could have been used in the circumstances of this case, if the vessel had been seized within an hour’s sailing distance of the coast of the United States. In refraining from making any observations on this matter, the Government of Canada do not desire to be regarded as acquiescing in the view that the Convention can be interpreted as justifying the use of the forcible measures employed in the special circumstances under consideration, or as involving an undertaking not to object to action which involved the opening of fire upon an escaping vessel, directed to the engine room, where men were known to be working, and actually hitting the pilot-house and so resulting in the loss of life.
The Government of Canada wish to emphasize their desire to continue the spirit of friendly cooperation which led to the signing of the Convention. They are of the opinion that the objects of the Convention can only be fulfilled by a strict adherence to its terms, and a recognition of the underlying principle in all matters of this kind that the assertion of a right so conferred must be established to have been exercised in accordance with the terms of the authority conferring it. They believe further that the right to board, search and seize for adjudication a vessel within an hour’s sail from shore is not to be exercised by the application of force under circumstances which may reasonably be taken to involve loss of human life.
In view of the circumstances of this case, in which the actual evidence taken before the Board of Investigation establishes that at all stages the vessel in question was outside the distance prescribed by Article II of the Convention, His Majesty’s Government in Canada feel justified in assuming that the United States Government will regard it as a case in which the action of the Coast Guard should be disavowed, in which the vessel, cargo and crew should be promptly released, and in which such reparation as is possible should be made to the widow and children of the late Master of the Josephine K.
I have [etc.]