811.114 Josephine K./257
The Secretary of State to the Canadian Minister (Herridge)
Sir: I have the honor to acknowledge the receipt of your note No. 110, of June 8, 1932, concerning the seizure of the Canadian vessel Josephine K. and its cargo of liquor, in the course of which the master, William Cluett, was fatally injured.
It is observed from your note that the Canadian Government fails to apprehend the relevance of the decrees entered in favor of the United States against the vessel and its cargo, with the consent of the claimant, to the issues raised by Mr. Wrong in his note of March 16, 1931.
It is the opinion of this Government that by consenting to the, entering of the decrees the claimant admitted the correctness of the contention of this Government that the Josephine K. was within the distance from the coast of the United States that it could traverse in one hour at the time of seizure and, also, that reasonable cause existed for the belief that the vessel was committing an offense against the laws of the United States prohibiting the importation of alcoholic beverages. It will be recalled that when the Josephine K. was first sighted it was in contact with and transshipping its cargo to an American barge, to which an American speed boat was also made fast, and that as soon as the presence of the patrol boat was made known by its searchlight, the speed boat made for the shore and the Josephine K. cast off from the barge and proceeded at full speed in a southeasterly direction toward the open sea.
The claimant’s own admission in regard to these two points, as shown by his consent to the entry of judgment against him, is considered decisive as to the fundamental issues involved, namely, the position of the vessel and the legal justification for its seizure.
In his note Mr. Wrong states that, so far from establishing that the Josephine K. was within the distance from the coast of the United States that it could traverse in one hour, the report of the Treasury Department and the record of the Board of Investigation establish conclusively that the Josephine K. was at all times more than one hour’s distance from shore. He also stated in the same note that the position of the Josephine K. when discovered, as determined [Page 89] by the technical officers of the Government of Canada, was 10.4 miles from the coast of New Jersey. Since the vessel’s registered speed is 11 knots, such a position would still be within the distance that could be traversed by the Josephine K. in one hour.
After carefully checking and rechecking the computations made by the several officers of this Government who determined the position of the Josephine K. , the appropriate authorities are convinced that the vessel when discovered was 9.4 miles from the nearest territory of the United States and was 10.6 miles from shore when seized.
Mr. Wrong apparently assumes the vessel’s speed to be that which was established by the speed test conducted by the Board of Investigation on January 29, 1931. The result of a speed test, however, can be considered as little more than evidence that under the conditions prevailing at a given moment in connection with weather and sea, engines and operating personnel, a certain speed was attained. Such a test is not necessarily a reliable method for determining the right to board Canadian vessels. At the time of seizure the Coast Guard personnel were unable to start the engines of the Josephine K. until emergency repairs had been made as the ignition wires had been ripped out. Furthermore, at the time of the test the conditions of wind and sea were not the same as on the night of the seizure, and the engines were operated by Coast Guard personnel unfamiliar with the installation.
There is hardly any measurement of distance more indefinite and variable than the speed of a vessel. It varies with every condition of loading and trim, with every change of weather conditions, with every change of condition of engines and hull, with change of course, with change of operating personnel. It varies not only from day to day but from hour to hour. Article II of the Convention of January 23, 1924, is silent on the subject of the method of determination of the speed that shall govern. In the opinion of the appropriate authorities of this Government there are two methods of determining the speed of a vessel which establish beyond a reasonable doubt whether that vessel is within the distance from the coast of the United States that it could traverse in one hour, as contemplated by the Convention. First, in the case of a known smuggling vessel of several years’ standing, such as the Josephine K. , by actually trailing the vessel at sea. The second method is to assume the accuracy of the statement concerning the speed of the vessel set forth in its official certificate of registry issued by the country whose flag the vessel flies. When the latter corroborates the former, it would appear that the evidence is conclusive. In the case of the Josephine K. , extracts from log books of Coast Guard vessels and special reports concerning [Page 90] the speed of the Josephine K. show that the vessel, while actually engaged in smuggling operations, attained on a number of occasions a speed of 11 knots. This is also the speed given in the vessel’s official register.
With reference to the amount of force which may be applied to compel obedience to a lawful command, I have noted the statement in Mr. Wrong’s note that the right to board, search and seize for adjudication a vessel within the distance from the coast of the United States that it can traverse in one hour is not to be exercised by the application of force under circumstances which may reasonably be taken to involve loss of human life. In this connection, I would say that officers of this Government refrain from using force except as a last resort, in which case the greatest precautions are taken to avoid any loss of life. I would emphasize the fact that this Government regrets that forcible measures are ever necessary and would welcome any suggestions as to how, in the case of habitual offenders who will not voluntarily recognize the authority of the United States Government, the law is to be enforced. It could not have been the intention of the parties to the Convention of January 23, 1924, that it should be enforced only with the consent of the violator; that would be a new doctrine to which this Government could not possibly subscribe. On the contrary, it would seem to be the duty of the master of a ship to stop when ordered to do so by a vessel which has properly identified itself as a police vessel. If the ship fails to stop, then the use of force to compel obedience is authorized by Section 2765 of the Revised Statutes of the United States (14 U. S. C. 68), which reads as follows:
“Whenever any vessel liable to seizure or examination does not bring-to, on being required to do so, or on being chased by any cutter or boat which has displayed the pennant and ensign prescribed for vessels in the revenue service, the master of such cutter or boat may fire at or into such vessel which does not bring-to, after such pennant and ensign has been hoisted, and a gun has been fired by such cutter or boat as a signal; and such master, and all persons acting by or under his direction, shall be indemnified from any penalities or actions for damages for so doing. If any person is killed or wounded by such firing, and the master is prosecuted or arrested therefor, he shall be forthwith admitted to bail.”
A similar provision is found in Section 7(2) Chapter 43, of the Revised Statutes of Canada, reading as follows:
“On any such ship, vessel or boat, failing to bring to when required, being chased by any such Government vessel or cruiser having such pennant and ensign hoisted, the captain, master or other person in [Page 91] charge of such Government vessel or cruiser may, after first causing a gun to be fired as a signal, fire at or into such ship, vessel or boat.”
It is the understanding of this Government that Canadian Preventive vessels in pursuance of this authority have on occasion used force to compel obedience to lawful commands to stop, and, in one case, as the result of the application of such force a member of the crew of an escaping American vessel was killed.
The death of the master of the Josephine K. was regrettable. However, the small size of the vessel, the motion of the sea, and the fact that both ships were traveling at top speed would naturally render it extremely difficult to hit a spot that would disable the ship without at the same time incurring the risk of injuring someone on board. Had the master heeded the Klaxon signals, blank cartridges and warning shots of the patrol boat and stopped when ordered to do so, and allowed the question of the seizure to be adjudicated by the means provided for that purpose both by law and by the Convention of January 23, 1924, his unfortunate death would not have occurred.
In view of the fact, therefore, that the Josephine K. was legally seized in accordance with the provisions of the Convention, and that the death of the master arose out of a legitimate effort to compel the vessel to stop, no reason is perceived why this Government should make reparation to the widow and children of the late Captain Cluett. Everything possible was done in an effort to save his life when it was found that he had been injured, but the responsibility for his death must rest upon Captain Cluett himself, who could have avoided any danger either to his vessel or to himself and his crew by complying with the command of a police vessel which had properly identified itself.
I sincerely hope that the Canadian Government will realize that the authorities of this Government are anxious to avoid any use of force in carrying out its laws. But when those in charge of vessels which are engaged in a business having for its object the systematic violation of law refuse to heed any other lawful commands to stop, the use of force is made mandatory by their own action. In such cases those who ignore lawful commands must be accounted solely responsible for the consequences.
The Josephine K. was built in 1926 for use in the liquor traffic and has apparently engaged in no other business from the time it was launched. It has violated not only the laws of this Government prohibiting the importation of alcoholic beverages, but it has also violated the International Rules of the Road17 by extinguishing its [Page 92] lights at night and thereby becoming a menace to the navigation of other vessels. Its action in this latter regard was brought to the attention of the Canadian Government by the American Legation at Ottawa in a note dated January 24, 1932.18
Moreover, there appears to be great doubt as to whether the Josephine K. is entitled to the protection of the Canadian Government as a Canadian vessel. Reference is made in this connection to a note dated February 15, 1927,19 which this Government addressed to the British Ambassador at this capital, stating that information had been received that the Josephine K. was controlled by interests in the United States and adding that it would be appreciated if steps were taken to cause an investigation to be made “with a view to determining whether this vessel is entitled to the protection of the British flag in its operations”. No reply has been received to this note, nor to one addressed by this Government to the Minister of the Dominion of Canada, dated April 28, 1927,19 referring to the previous note and inquiring as to the action taken in this case. Since that time further information has been obtained which confirms the belief that the Josephine K. is actually owned by citizens of the United States and that the Canadian flag is being used merely to cover and protect a venture which is directed at violating the laws of a friendly Government.
The Josephine K. was released on bond shortly after its seizure and almost immediately re-entered the liquor traffic. There are enclosed detailed records showing its operations both before and since its seizure.19