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Behring Sea Claims Commission. Argument on behalf of Great Britain Behring Sea Claims Commission 1897

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         BEHRING SEA CLAIMS COMMISSION
 ARGUMENT 
ON BEHALF OF 
GREAT BRITAIN  TABLE OF CONTENTS.
Introductory	
Assertion of Jurisdiction by United States	
First Seizures, 1886	
United States Statutes	
Interference other than Seizure, 1886	
Report of Seizing Officer	
Diplomatic Correspondence	
Orders for discontinuance of proceedings and release of
vessels and persons	
Assurance against further Seizure asked	
The Seizures of 1887	
No assurance was implied	
Protests against renewed Seizures	
Condemnation of Vessels.	
Seizure discontinued in 1888	
The Seizures of  1889	
The " Pathfinder" Seizure in Neah Bay, 1890	
Protests against continued Seizures ,	
Shifting positions of United States	
The-modus vivendi of 1891	
The Treaty of Arbitration	
The modus vivendi of 1892	
The Questions submitted to Arbitrators	
United -States' Claim negatived	
The Findings of Fact	
The " Winnif red " Seizure	
The " Henrietta " Seizure	
The " Oscar and Hattie " Seizure	
The " Sayward " Costs	
The " Wanderer " Case	
The "Black Diamond" Case, 1886	
Great Britain's Claim	
The Scope of the Convention	
Effect of the Paris Award    	
Measure of Damage	
Loss of Catch	
Interest.	
Is Great Britain's Claim affected by Citizens of the United
States having an Interest in any of the Vessels	
Effect of Domicile on Nationality	
Claims presented on Account of Personal Hardship suffered by the Crews of the Seized Vessels	
The Character and extent of the Sealing Grounds in
Behring. Sea	
The Duration of the Sealing Season in Behring Sea	
Tables showing vessels sealing and length of Behring Sea
voyage
B S—A
Page.
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36
38
47
56
57
67
75
-J 11
TABLE  OF  CONTENTS.
Page.
Method for Computing the estimated Catch. .. .,  79
Value of Seal Skins , 83
Special Conditions affecting Value of the Vessels  86
Concise Statement of Facts relating to each Claim  89
The I Carolena," Claim No. 1 , 89
The J Thornton," Claim No. 2  97
The I Onward," Claim No. 3  103
The I Favourite," Claim No. 4  106
The I Black Diamond," Claim No. 5  108
The I W. P. Sayward," Claim No. 6  110
The I Anna Beck," Claim No. 7     112
The I Alfred Adams," Claim No. 8 .  116
The | Grace " and | Dolphin," Claims Nos. 9 and 10  119
The "Ada," Claim No. 11  124
The 1 Triumph," Claim No. 12  130
The I Juanita," Claim No. 13  133
The I Pathfinder," Claim No. 14  135
The I Black Diamond," Claim No. 15  137
The I Lily," Claim No. 16  140
The I Minnie," Claim No. 17  142
The " Triumph," Claim No. 18  146
The " Ariel," Claim No. 19  149
The " Kate," Claim No. 20  152
The § Pathfinder," Claim No. 21  154
The I Henrietta," Claim No. 22  156
The " Oscar and Hattie," Claim No. 23  166
The " Winnifred," Claim No. 24  172
The " Wanderer," Claim No. 25  181
The Costs in the | Sayward " Case, Claim No. 26  184
Recapitulation  187
Conclusion ,  188
ANNEXES.
Annex 1.—The modus vivendi of 1891  189
do     2.—The Treaty of 1892  190
do     3.—The modus vivendi of  1892  195
do     4.—The Paris Award  197
do     5—The Claims Convention  204
do     6.—The Canadian Act of Parliament, 1896  208
do    7.—The United States Act of Congress, 1896  209 KEY TO REFEEENOES.
In this Argument the following abbreviations have been
adopted in the marginal references:—
U.s.R. or U.S.    American reprint of the proceedings at Paris.
R- Record of evidence taken at Victoria.
s. Ex. Doc, No.   Executive document of the United States Senate*
m No. 106, 50th Congress, 2nd Session.
L-K English Law Reports.
F.E. of thejJ.S. Papers relating to the Foreign relations of the
United States, Vol. 4, for years 1872-1873.
Gen. Aw. "Vol. 4. Papers relating to the Foreign relations of the
United States, Vol. 4, for years 1872-1873.
iPeakeN.P.       Peake Nisi Prius Reports (English.)
state Papers.       English State Papers.
The Argument at j± collection of forensic discussion hefore the
Geneva tribunal, published hy authority of the
United States Government in 18 73.
Opinions of At-    A collection of the official opinions of the Attor-
tomeys General.       neys General of the United States, published
by authority of Congress in 1868.
Ap. b. Appendix B. to the Record of Proceedings at
Victoria, B. C.  BEHRING SEA CLAIMS COMMISSION
\RGUMENT ON  BEHALF OF GREAT BRITAIN
INTRODUCTORY
As a preparatory step to presenting the case of Her
Britannic Majesty, it is proposed to refer to the main facts
leading up to the present inquiry.
Until the year 1886, the United States government, by u. s. R., vol
no positive act sought to exercise, any exclusive jurisdiction 85.page
over the waters of Behring Sea beyond the usual territorial
limit, nor did they by any active interference intimate to Great
Britain or to other foreign powers, their intention to claim
special or exclusive authority to prevent the capture of fur
10 seals in Behring Sea, outside of such limit.
In that year, under instructions given by the United
States government, dated April 21,1886, to prevent sealing in
Behring Sea, three British vessels the " Carolena," " Onward,''
and " Thornton" were arrested by a United States revenue
cutter and taken to a United States port in Alaska and subsequently libelled upon the charge that they were:
1 Found engaged in killing fur seals within the limit of Alaska
territory and in the waters thereof, in violation of Section 1956
of the Revised Statutes of the United States," which section
20 reads as follows:—
"Section 1956. No person shall kill any otter, mink, e, 62.
marten, sable, or fur seal, or other fur-bearing animal, within
the limits of Alaska territory, or in the waters thereof; and
every person guilty thereof shall, for each offence, be fined not
less than $200 nor more than $1,000, or imprisoned not more
than six months, or both; and all vessels, their tackle, apparel,
furniture, and cargo, found engaged in violation of this section
shall be forfeited; but the Secretary of the Treasury shall
have power to authorize the killing of such mink, marten,
30 sable or other fur-bearing animal, except fur seals, under such
regulations as he may prescribe; and it shall be the duty of
the Secretary to prevent the killing of any fur seal, and to
provide for the execution of the provisions of this section until
it is otherwise provided by law; nor shall he grant any special
privileges under this section."
These vessels were all condemned, and their masters and
mates fined and imprisoned.
J z,S
'>***-<»
.//
J BG9
y
J
si
4 INTRODUCTORY.
In addition to these seizures two other British schooners the
" Favorite " and " Black Diamond " were warned by the United
States authorities not to pursue the capture of seals in Behring
Sea and their voyages were thereby broken up.
The said seizures were made in pursuance of orders issued
from the United States Treasury Department to the commanding
officers of their revenue cutters detailed for service in Behring
Sea in the spring of the year 1886, part of which instructions
were as follows :—
" To enforce the law contained  in the provisions of sec-10
tion 1956 of the U.S. R.S. and to seize all vessels and arrest and
deliver to the proper authorities any or all persons whom you
may detect violating the law referred to."
It now appears that information as to the fact of the seizures was received by the Secretary of the Treasury at Washington
by telegraph on the 18th August, 1886, from the special Treasury Agent at San Francisco, which was followed by a written
report confirming the fact of the seizure and expressing the
hope that no efforts would be spared to convict such members
of the crews of such vessels as had been taken prisoners by 20
the commanders of the revenue cutter.
On the 3rd September, _18_8.6, the seizing officer wrote
from Sitka, Alaska, to the Secretary of the Treasury at
"Washington:—
" Upon arriving here I reported my seizures to the
United States District Attorney, who had been advised in
advance by the arrival of the schooner " San Diego," on August
23rd, and laid informations against the masters and mates of
the seized vessels for violations of Section 1956 Revised
Statutes, whereupon they were removed from the " Corwin" and 30
taken in custody by the United States Marshal.
" All were arraigned at a special session of the United
States District Court of Alaska, Judge Lafayette Dawson, and
the masters and mates of the British schooner " Thornton" and
American schooner " San Diego " were convicted, the former
by a jury, the latter by the court, and sentenced to fine and
imprisonment. The other two criminal trials—of the " Onward "
and ■■ Carolena " parties — will come on as soon as a new jury
can be obtained. The admiralty cases I have not fully decided
how to proceed with. There may be a doubt as to the juris- 40
diction of the Alaska court in their regard, and I will endeavour to settle it before proceeding at all."
On the 22nd September, 1886, the same seizing officer wrote
to the Secretary of the Treasury at Washington from Astoria,
Oregon, as follows :—
" I would respectfully report the arrival here on the 22nd inst.
of the revenue steamer " Corwin " under my command from
Sitka, September 10th, via Nanaimo, British Columbia, September 17th, Port Townsend. W.T., the 18th, and Seattle,
W.T., the 20th. 50
" Referring to my letter of the 3rd instant, from Sitka, I
would state, in continuation, that I remained at Sitka in continuous attendance at court up to the date of my departure.
The masters and mates of the seized sealers were all criminally INTRODUCTORY.
<
convicted and sentenced to various terms of imprisonment and
fines."
Apparently transmitted with the last mentioned letter were
extracts from the log of the seizing cutter extending from the
1st August to the 10th day of September, 1886, giving the
precise location by longitude and latitude where the seizures
had been made, the full circumstances of the seizures, the
names of the masters and mates arrested, and enumerating the
various articles taken.
10     On the 27th September, 1886, the British Ambassador at R. 54.
Washington addressed a note to the United States Secretary
of State, asking to be furnished with any particulars which
the United States government had relative to the seizures.
This letter remaining unanswered, on the 21st October,
1886, the British Ambassador wrote to the United States
Secretary of States, that he was without reply to his letter of
the 27th September, and that he was instructed by his Government to protest against the seizures and to reserve all rights
to compensation.
20     On the 14th day of November, 1886, the British Ambassador
delivered at the office of the Secretary of State, Washington, a
copy of the important letter bearing date 30th October, 1886, r. p. 54.
from the British Foreign Minister.    This letter contained an
accurate report of the proceedings against the vessels which had U. s., Vol. 11,
been condemned at Sitka on the 30th August, together with page
depositions of officers and men engaged upon the vessels seized
by the United States cutter on the 1st August.
On the 12th November, 1886, the United States Secretary
of State wrote to the British Ambassador :
30 " The delay in my reply to your letters of September 27, r. 57.
and October 21, asking for the information in my possession
concerning the seizure by the United States revenue-cutter
Corwin, in the Behring Sea, of British vessels, for an alleged
violation of the laws of the United States in relation to the
Alaskan seal fisheries, has been caused by my waiting to receive
from the Treasury Department the information you desired.
I tender the fact in apology frfr_the delay and as the reason
for my silence, and repeating what I said verbally to you in
our conversaLi.un~this morning, T am  still  waiting, full and
40 authentic reports"of the judicial trial and judgment in the cases
of the seizures referred to.
'" My appTicationto my colleague, the Attorney General, to
procure an authentic report of these-proceedings was promptly
made, and the delay in furnishing the report doubtless has
arisen from the remoteness of the place of trial.
" So soon as I am enabled T will convey to you the_facts as
ascertained in the trial and the rulings of law as applied by the
court.
I I take leave also to acknowledge your communication of
50 the 21st of October, informing me that you had been instructed
by the Earl of Iddesleigh, Her Majesty's Principal Secretary of
State for Foreign Affairs, to protest against the seizure of the
vessels above referred to, and to reserve all rights of compensation.    All of which shall receive respectful consideration." mam
SH
6
INTRODUCTORY.
m
V
On the 9th January, 1887, the British Ambassador wrote to
the United States Secretary of State, referring to his prior
letters, and adding :—
r. 58, l, 50. " Under these circumstances, Her Majesty's Government do
not hesitate to express their concern at not having received any
reply to their representations, nor do they wish to conceal the
grave nature which the case has thus assumed and to which
I am now instructed to call your immediate and most serious
attention."
On the 12th January, 1887, the United States Secretary of 10
State wrote to the British Ambassador:—
" From week to week I have been awaiting the arrival of
the papers, and to-day at my request, the Attorney General
R. 59, L. 30.   has telegraphed to Portland, Oregon, the nearest telegraph
station to Sitka in Alaska, in order to expedite the furnishing
of the desired papers "*        |       *       *       *       §■ *=
#        ■%        #        =fc    " The distance of the vessels from
any land or the circumstances attendant upon their seizure are
unknown to me save by the statements in your last note, and
it is essential that such facts should be devoid of all uncer- 20
tainty."
R. 59. On the 1st February, 188/, the British Ambassador wrote
to the United States Secretary of State, inquiring whether the
information asked for had been received.
r. 60, l. 20. On the 3rd February, 1887, the United States Secretary of
State replied:—
11 am informed that the documents in question had left
Sitka on the 26th  of January,  and may  be   expected to
arrive at  Port Townsend, in Washington  Territory, about
the 7th instant, so that the papers in the usual course of mail 30
should be received by me within a fortnight."
R. 61. On the 4th  April, 1887,  the  British  Ambassador again
inquired from the United States Secretary of State as to whether the documents had been received.
r. 6i, L. 40. On the 12th April, 1887, the United States Secretary of
State wrote to the British Ambassador that ^ ^ B | the
records of the judicial proceedings in the cases in the District
Court in Alaska referred to were only received at this Department on the Saturday last and are now under examination;
jT #    ^=    #» and in this letter the United States Secretary of 40
State proceeds to refer for the first time to sections 1956 to 1971
of the Revised Statutes of the United States.
R. 65. On the 8th July, 1887, the British Ambassador requested
copies of the records of the proceedings against the seized
R- 66. schooners, and on the 11th July, the United States Secretary
of State furnished to the British Ambassador printed copies
of the judicial proceedings in the United States District Court
for the District of Alaska against the said vessels.
j This correspondence shows that although the seizures occur-
\     red on the 1st and 2nd August, 1886, and information respect- 50
ing the same was received by the United States Secretary of
State on the 18th of the same month, and a request was made
for particulars thereof by the British Government on the 27th
September, no intimation as to the cause of seizure or any par- INTRODUCTORY.
ticularg relating thereto could be obtained from "the United
States Government until the 12th April, 1887, and not before
the 11th July, 1887 did that Government communicate the
precise nature of the proceedings.
57, L. 50.
U. S. 4, 93.
Pending the decision of the United States Government as to
the action they would take upon the protest made by the
British Government against the seizures, and owing to the
importance of the questions arising therefrom, the following
took place.
10 On the 7th of December, 1886, the British Ambassabor
wrote to the United States Secretary of State:—
# ^ «I have the honour to state that vessels are now as
usual equipping in British Columbia for fishing in that sea.
I The Canadian Government, therefore, in the absence of
information are desirous of ascertaining whether such vessels
fishing in the open sea and beyond the territorial waters of
Alaska would be exposed to seizure, and Her Majesty's Government at the same time would be glad if some assurance would
be given that pending the settlement of the question no such
20 seizures of British vessels will be made in Behring Sea."
On the 26th January, 1887, the United States Government
being in possession of all the facts caused the following telegram
to be sent to the Judge and District Attorney at Sitka :—
" I am directed by the President 'to instruct you to discontinue any further proceedings in the matter of the seizure of
the British vessels " Carolena," " Onward " and " Thornton,"
itrfil discharge all vessels now held under such seizure and
release all persons that may be under arrest in connection
therewith.
30     And on the 3rd day of February^! 8 8 7, the United States
Secretary of State wrote the British Ambassador:—
" In this connection I take occasion to inform you that without conclusion at this time of any questions which may be found
to be involved in these cases of seizure, orders have been
issued by the President's direction for the discontinuance of
all pending proceedings, the discharge of the vessels referred
to, and the release of all persons under arrest in connection
therewith."
On April 4th, 1887, the British Ambassador wrote to United
40 States Secretary of State :—
" In view of the approaching fishing season in Behring Sea
and the fitting out of vessels for fishing operations in those
waters, Her Majesty's Government have requested me to inquire
whether the owners of such vessels may rely on being unmolested by the cruisers of the United States when not near
land." '    =fc       ^        ^        #=*###*
On April 12th, 1887, the United States Secretary of State
wrote to the British Ambassador :—
# #      " The  question   of  instructions   to  Government
50 vessels in regard to preventing the indiscriminate killing of
fur seals is now being considered, and I will inform you at the
earliest day possible what has been__decided, so that British
aiidu~otblsr~veBsels visiting the waters in question can govern
themselves accordingly/'
Such instructions were considered and determined upon by u. s. 8,403-5.
the United States Government and communicated by letters
i
ft
M
60, L. 50.
R. 61.
61, L. 70.
£s"
I atinaa
•
V
:
8 INTRODUCTORY.
of May 10th and May 28th, 1887, to the Commanders of the
United States revenue cutters ; but no information respecting
them was ever conveyed to the British authorities.
These instructions were, substantially, the same as those of
1886.
Without either warning or notice the United States Government proceeded, in the months of July and August, 1887, to
seize a number of British vessels which were engaged in sealing
operations in Behring Sea; these vessels were the | W. P. Sayward," "Alfred Adams," 'Anna Beck," " Dolphin," "Grace" 10
and "Ada." And the schooners "Triumph" and " Wanderer "
were also interfered with and their voyages interrupted.
On the 11th August, 1887, the British Ambassador wrote
to the United States Secretary of State:—
R. 81, L. 30. "I have the honour to inform you that Her Majesty's Government have received a telegram from the Commander-in-Chief
of Her Majesty's naval forces in the Pacific, dated Victoria,
British Columbia, August 7, reporting the seizure by United
States cruisers of three British Columbia sealing schooners -in
Behring's Sea, a long distance from Sitka, and that several 20
"Other vessels were in sight being towed in.
" In conveying this information to you, I am requested at
same time by the Marquis of Salisbury to state that, in view
of the assurances given .in your note of the 3rd of February
last, Her Majesty Government had assumed that pending the
conclusion of discussions between the two governments on
general questions involved, no further seizures would be made
by order of the United States Government."
To which on the 13th of the same month the United States
Secretary of State replied :— -     30
r. 81, l. 65. " The reference to my note to you of the 3rd of
February last, which you make under the instruction of the
Marquis of Salisbury, has caused me to examine the expressions contained therein, and I can discover no ground whatever for the assumption by Her Majesty Government, that it
contained assurances ' that pending the conclusion of discussions between the two governments on general questions
involved, no further seizures would be made by order of the
United States Government.'
I Until your note of the 11th instant was received, I had no 40
information of the seizure of the sealing vessels therein referred
to, and have no knowledge whatever  of the  circumstances
under which such seizures have been made."
II shall at once endeavour to supply myself with the information necessary to enable me to reply to you more fully."
1 The cases of seizure referred to in my note of February 3,
1887, had occurred during the previous August, and upon
the basis of the information then obtained I wrote vou as
follows :
"' In this connection I take occasion to inform you that, 50
without conclusion at this time of any questions which may be
found to be involved in these cases of seizure, orders have
been issued by the President's direction for the discontinuance
of all pending proceedings, the discharge of the vessels
referred to, and the release of all persons under arrest in
connection therewith.'"
" Having no reason to anticipate any other seizures, nothing
was said in relation to the possibility of such an occurence, nor INTRODUCTORY.
9
do I find in our correspondence on the subject any grounds for
such an understanding as you inform me had been assumed to
exist by Her Britannic Majesty's Government."
" A short time since, when you called upon me and personally obtained copies of the record of the judicial proceedings in
the three cases of seizure in August last in Behring Sea,
nothing was said in relation to other cases. Whether the
circumstances attendant upon the cases which you now report
to me are the same as those which induced the Executive to
direct the releases referred to, remains hereafter to be ascer-
10 tained, and this with as little delay as the circumstances
will permit."
In a letter to the British Ambassador, dated the 10th September, 1887, a copy whereof was left with the United States
Secretary of State on the 23rd of same month, the Marquis of
Salisbury fully stated the contention of Great Britain with
regard to the different questions raised, directing the attention
of the United States Government, to the position that they had
previously taken in a similar controversy with the Russian
20 Government.
On the 12th October, 1887, the British Ambassador wrote
to the United States Secretary of State, formally protesting
against the seizure of the schooners "Grace," "Dolphin" and
" W. P. Sayward," and reserving all rights to compensation on
behalf of the owners and crews.
On the 13th October, 1887, the United States Secretary of
State wrote to the British Ambassador acknowledging the
receipt of the protest against the seizures of the said vessels
and stating that the facts would be at once investigated.
30 On the 19th October, 1887, a similar protest was made
against the seizure of the schooner " Alfred Adams " " and
" against the continuation of similar proceedings by the United
" States authorities on the high seas," the receipt of which was
acknowledged on the 22nd October.
All the vessels seized in 1887, with their tackle, apparel,
furniture and cargo, were condemned at the instance of the
United States and several of the officers were placed and kept
under arrest for various periods, and their crews were submitted to considerable hardship.
R. 83-85,
U. S. 2, 162.
S. Ex. Doc.
106, p. 55.
S. Ex. Doc.
106, p. 57.
S. Ex. Doc.
106, p. 58.
S. Ex. Doc.
106, p. 59.
40 No seizures were attempted to be made in 1888 by the United
States Government, but no assurance of freedom in sealing
having been given, those engaged in that occupation were
greatly hampered in their operations.
In the year 1889, the United States Government, again proceeded to seize a number of British schooners engaged in seal
fishing in Behring Sea, to warn others from the said sea, and
by intimidation to prevent a certain other schooner from
entering the sea. The names of the vessels seized were : the
" Juanita," " Pathfinder," " Black Diamond," " Lily " and
50 "Minnie." The vessels warned were : the " Triumph," "Ariel"
and " Kate," and the vessel intimidated was the " Wanderer."
b s—2
m 10
INTRODUCTORY.
In that year also, the Pathfinder'was arrested in Behring Sea
and ordered to proceed to Sitka, instead of which she came to
the port of "Victoria. In the year 1890, the same' schooner
while on a sealing voyage was lying at Neah Bay, undergoing
necessary repairs, when she was boarded by an officer from
the United States Government cutter Corwin and seized on the
allegation that she had escaped arrest in 1889. She was detained
for some days and subsequently released on instructions from
the Department at Washington.
JA*f4**2
-^rr f
IT. S., "Vol.
p. 335.
U. S., Vol. 2
p. 263, and p.
286 and p. 296
Further protest was made by Great Britain with respect to 10
the seizures, and diplomatic correspondence continued.
This correspondence discloses the following positions assumed
at various times by the authorities of the United States.
(a) The vessel's seized in 1886 and 1887 were seized and
condemned on the ground that Behring Sea was a mare
clausum.
{b) Disavowing this ground, a claim was made on 17th
December, 1890, that the United States had exclusive jurisdiction over 100 miles from the coast line of United States
territory in Behring Sea. 20
(e) Subsequently, on the 14th April, 1891, the United
States Government advanced a new claim that they had a property in and a right of protection over fur-seals.
On the 15th June, 1891, a modus vivendi (annex 1) was concluded by which it was agreed that Great Britain should on
the one hand prohibit until May, 1892, seal killing in that
part of Behring Sea lying eastward of the line of demarcation
described in the treaty of 1867, between the United States and
Russia, and that the United States should on the other hand
prohibit seal killing for the same period in the same part of 30
Behring Sea, and on the shores and islands thereof in excess
of a stipulated number.
This agreement contained the following clause :
" Every vessel or person offending against this prohibition
in the said waters of Behring Sea, outside of the ordinary
territorial limits of the United States, may be seized and
detained by the naval or other duly commissioned officers of
either of the high contracting parties, but they shall be handed
over as soon as practicable to the authorities of the nation to
which they respectively belong, who shall alone have jurisdic- 40
tion to try the offence and impose the penalties for the same.
The witnesses and proofs necessary to establish the offence
shall also be sent with them."
On February the 29th, 1892, as a result of the negotiations before mentioned, a Treaty by which the differences between the two Governments were referred to arbitration was
signed.
The Article of the Treaty affecting the question of compensation was section 8 which is as follows :
"The high contracting parties having found themselves 50
unable to agree upon a reference which shall include the INTRODUCTORY.
11
question of the liability of each for the injuries alleged to have
been sustained by the other, or by its citizens, in connection
with the claims presented and urged by it; and, being solicitous that this subordinate question should not interrupt or
longer delay the submission and determination of the main
questions, do agree that either may submit to the arbitrators
any question of fact involved in said claims, and ask for a finding thereon, the question of the liability of either Government
upon the facts found to be the subject of further negotiation."
The terms of reference having been thus agreed to, it
became expedient to effect some temporary arrangement
similar to the modus vivendi of 1891, during the period necessary to obtain the award of the Arbitrators appointed under
the Treaty of 1892.
This was done by the modus vivendi concluded on the
18th April, 1892, which practically extended the modus
vivendi of 1891, until the decision of the Arbitrators should be
reached.
By Article 6, of the Treaty of 1892, the main questions
20 of right were dealt with.    This Article was as follows:—
| In deciding the matters submitted to the arbitrators, it is
agreed that the following five points shall be submitted to
them, in order that their award shall embrace a distinct decision upon each of said five points, to wit:—
"1. What exclusive jurisdiction in the sea now known as
the Behring Sea, and what exclusive rights in the seal fisheries
therein, did Russia assert and exercise prior and up to the date
of the cession of Alaska to the United States ?
" 2. How far were these claims of jurisdiction as to the seal
30 fisheries recognized and conceded by Great Britain?
" 3. Was the body of water now known as the Behring Sea
included in the phrase ' Pacific Ocean,' as used in the Treaty
of 1825 between Great Britain and Russia ; and what rights,
if any, in the Behring Sea, were held and exclusively exercised by Russia after the said Treaty ?
I 4. Did not all the rights of Russia as to jurisdiction, and as
to the seal fisheries in Behring Sea east of the water boundary,
in the treaty between the United States and Russia of the 30th
March, 1867, pass unimpaired to the United States under that
40 treaty ?
" 5. Has the United States any right, and, if so, what right
of protection and property in the fur seals frequenting the
islands of the United States in Behring Sea when such seals
are found outside the ordinary three mile limit ? "
Upon the questions stated in this article the decision of
the Paris tribunal negatived the right to any extra territorial
jurisdiction of the United States in Behring Sea.
The  necessary  result of the decision   upon these  points
was that the United States should make full compensation to
50 Great Britain for all losses sustained by reason of the illegal
interference by the United States with British vessels on the
high seas.
In pursuance of the terms of section 8 above referred to,
Great Britain submitted to the Paris tribunal certain statements of fact, which were agreed to by the United States as
proved.    Among these findings were the following. 12
INTRODUCTORY.
I The following table shows the names of the British sealing
vessels seized or warned by United States revenue cruisers,
1886-1890, and the approximate distance from land when
seized. The distances assigned in the cases of the ' Carolena'
' Thornton' and ' Onward' are on the authority of United
States Naval Commander Abbey (see 50th Congress, 2nd
Session, Senate Executive Document No. 106, pp. 20, 30, 40).
The distances assigned in the cases of the I Anna Beck,' ' W.
P. Sayward,' ' Dolphin,' and ' Grace' are on the authority of
Captain Shepard, United States Revenue Marine (Blue Book, 10
United States, No. 2, 1890, pp. 80 82. See Appendix, vol.
iii)."
Name
of
Vessel.
Date
1  of
Seizure.
Approximate
Distance fron Land when
Seized.
United States
Vessel  Making
Seizures.
Carolena	
Thornton	
Onward	
Favourite	
Anna Beck	
W. P. Sayward...
Aug.   1, 86
do     1, 86
do     2, 86
do     2, 86
July   2, 87
do     9, 87
do   12, 87
do   M 87
Aug. 10, 87
do   25, 87
do     4, 87
July 31, 89
do   29, 89
do   11, 89
do   11, 89
Aug.   6, 89
July 30, 89
Aug. 13, 89
July 15, 89
Mar 27, 90
70   do	
115   do  	
Warned by Corwin in about same
position as Onward	
59   do	
Corwin.
do
do
Rush,
do
Dolphin	
40   do	
96   do	
62   do	
15   do 	
Warned by Rush not to enter Behring Sea	
50   do	
Ordered out of Behring Sea by Rush
(?) As to position when warned...
do
do
Alfred Adams	
Ada	
do
Bear.
Pathfinder	
Triumph	
Rush
do
do
Lily	
Ariel	
Kate	
Minnie	
Pathfinder	
66   do	
Ordered out of Behring Sea by Rush
do          do          do          do
do
do
Corwin.
20
30
*Neah Bay is in the State of Washington, and the "Pathfinder" was seized there
on charges made against her in Behring Sea in the previous year. She was released
two days later. Af\
" And whereas the government of Her Britannic Majesty did
ask the said arbitrators to find the said facts as set forth in
the said statement, and whereas the agent and counsel for the
United States government thereupon in our presence informed
us that the said statement of facts was sustained by the evidence
and that they had agreed with the agent and counsel for Her
Britannic Majesty that we, the arbitrators, if we should think
fit so to do might find the said statement^of facts to be true.     50
" Now, we, the said arbitrators, do unanimouly find the facts
as set forth in the said statement to be true."
The findings of fact also established that the vessels were
libelled in the United States District Court by authority of
the United States.
That the fines and imprisonment were for alleged breaches
of the municipal laws of the United States which alleged
breaches were committed in Behring Sea at great distances
from land.
That the warnings to leave Behring Sea or not to enter it
were nc.ade by authority of the United States.
ii INTRODUCTORY.
13
Whilst the modus vivendi 1891 was in force, the schooner
"Winnifred" was seized in the open waters of Behring Sea for
an alleged breach of the modus. She was taken to the port of
Ounalaska and whilst there was re-arrested for an alleged
violation of the United States Customs laws. In pursuance
of this arrest, the vessel was taken to Sitka and there libelled
and improperly condemned on the second charge preferred
against her.
Whilst the modus vivendi of 1892 was in force, the schooner p,
10 " Henrietta " was seized in the open waters of Behring Sea for an
alleged violation of the modus, but the United States Government instead of handing her over to the British authorities to be
dealt with as provided by the terms of the modus, proceeded
against her for an alleged infraction of the municipal laws of
the United States. This latter charge was subsequently abandoned, but the vessel was not returned to her owner until 1894.
In 1892 the schooner " Oscar & Hattie" was also improperly
seized for an alleged violation of the modus. She was handed
over to  the British authorities and by the Court of first in-
20 stance condemned and sold under process at a heavy loss to her
owners. This condemnation was subsequently reversed on
appeal.
After the seizure and condemnation of the schooner " W. P.
Sayward " in 1887, proceedings were taken against the condemnation ; first, by way of appeal and subsequently by writ of
prohibition, on the occasion of which Her Majesty paid a large
amount of costs which forms the subject of a special claim.
After the Paris Award, the two governments, in order to
arrive at the amount of damage to be paid by the Government
30 of the United States, entered into negotiations which culminated in the present Convention.
By reference to the Convention it will appear that in addition to the several claims specially enumerated in the above
mentioned findings of fact, the cases of the I Wanderer,"
"Winnifred," "Henrietta," " Oscar " and "Hattie " and the costs
in the "Sayward" case, are to form part of the present inquiry.
It will further on be shown that the case of the " Black
Diamond," 1886, also forms part of the inquiry.
All the vessels seized or interfered with as aforesaid
40 were, when so seized or interfered with, ships duly registered
under the British Merchants' Shipping Act and amendments
thereto, flying the British flag, having been duly cleared from
a British port for sealing voyages in the ^orth Pacific Ocean
and Behring Sea.
The claim of Great Britain before the present Convention is:
The recovery of full and complete compensation from
United States for losses and injuries sustained by Her Majesty,
and by all persons in whose behalf Great Britain is entitled to
50 claim, arising out of the illegal acts above referred to. asusa
THE SCOPE OP THE CONVENTION".
R. 54.
R. 57.
Articles 1 and 3 of the Convention provide that all claims on
account of injuries sustained by persons in whose behalf Great
Britain is entitled to claim compensation from the United
States and arising by virtue of the Treaty of 1892, the award
and the findings of the Tribunal of Arbitration at Paris, as
also the additional claims mentioned in the above introduction,
shall be referred to commissioners who shall determine the
liability of the United States in respect of each claim and
assess the amount of compensation to be paid on account 10
thereof.
The first questions, therefore, are: what are the claims;
and in whose behalf is Great Britain entitled to claim compensation ?
In this connection it must be borne in mind that at the time
of the Treaty of 1892, protests had been made on behalf of
Great Britain, and particulars of claims had been formulated
and presented to the United States Government. The fram-
ers of the Treaty and Convention had these protests and claims
before their minds in settling upon the terms of said Treaty 20
and Convention.
It is therefore necessary to inquire what was the character
of the protests and the nature of the claims which had been
presented and urged by Great Britain prior to the date of the
Treaty of 1892.
In his despatch to the United States Secretary of State dated
21st October, 1886, the British Ambassador says:
" I have the honour to inform you that I am now instructed
by the Earl of Iddesleigh, Her Majesty's Principal Secretary of
State for Foreign Affairs, to protest in the name of Her Majes- 30
ty's Government against such seizure, and to reserve all rights
to compensation."
The reply of the United States Secretary of State to the
British Ambassador dated November 12th, 1886, acknowledges
the receipt of the protest and reservation of all rights to compensation, and states: "All of which shall receive respectful
consideration."
On the 12th October, 1887, the British Ambassador writing
to the United States Secretary of State with reference to the
cases of the "Grace," "Dolphin" and " W. P. Sayward," says: 49
11 have the honour to inform you that I am now further
instructed to make similar representations in the cases of the
British Columbian vessels ' Grace,' ' Dolphin; and ! W. Y.
Sayward,' seized lately by the United States revenue cutter
' Richard Rush', and at the same time, as in the case of the
I Onward,' ' Carolena' and ' Thornton,' to reserve all rights
to compensation on behalf of the owners and crews." \
14 THE SCOPE  OP THE  CONVENTION.
15
On the 13th October, 1887, receipt of the above letter
" with notification that Her Britannic Majesty's Government
reserve all right to compensation on behalf of the owners and
crews of the above mentioned vessels was acknowledged."
A number of the claims in question having been filed by
the parties interested with the British Government the follow,
ing notes verbales were exchanged between the two governments :
" Her Majesty's Government have just- received the parti-
1" culars of the claims for compensation on account of British
sealers seized and warned off by the United States authorities
in Behring Sea.
" A just assessment of these claims appears to them difficult
without investigation and verification, and they therefore wish
to ascertain whether the United States Government would be
disposed to agree to a mixed commission, to be restricted to
inquiring in each case whether compensation is due and the
amount of such compensation.—Washington, April 18, 1888."
" Responding to the note verbale of Sir Lionel West, dated
20 the 18th instant, it is suggested on behalf of the United States
that, as the cases of seizure of British vessels in Behring Sea,
therein referred to, are now in court pending an appeal from a
judicial decision, it is preferable to await the judgment of the
appellate court in the premises.—Washington, April 21, 1888.'>
In June, 1890, the British Ambassador left with the United
States Secretary of State a protest in which the following passage occurs :—
" The undersigned is in consequence instructed formally to
protest against such interference and declare that Her Britannic
30 Majesty's Government must hold the Government of the United
States responsible for the consequences that may ensue from acts
which are contrary to the established principles of international
law."
R. 69.
Vol.
223.
U. S.
The claims actually submitted by Great Britain referred to
in the notes verbales, and which were afterwards presented to
the Paris tribunal comprised a demand for compensation due
to all parties interested; for instance, in the claim of Morris
Moss for the schooner " Lily " seized in the year 1889, paragraph
6, states:—
40 " I, for myself, and the crew and hunters of the said jj Lily jj
claim damages against the Government of the United States
of America for the seizure of the said ' Lily,' and for the taking and detention of said 333 seal skins, and for 1,767 seal
skins, the balance of the estimated catch of 2,100 in Behring Sea
for the full season o/1889."
The claim of George Byrnes for the schooner " Triumph "
in 1887 (paragraph 8) reads:—
11, for myself and the crew of the said schooner on said voyage,
claim from the Government of the United States damages for
50 the illegal boarding and searching of the said schooner
' Triumph' and for the breaking up of the said schooner's sealing voyage, whereby I and the said crew lost the benefit and
advantage of a catch of at least 1,000 seal skins." UK
16
THE SCOPE OP THE CONVENTION.
In the claim of Samuel W. Bucknam for the schooner
" Ariel," paragraph 12 reads :—
" I, for myself, and the said John M. Taylor, and the said
Bela R. Lawrence, my co-owners in said schooner I Ariel,'
and likewise for the crew of the said ' Ariel' on said voyaye who
were and are entitled to share in the total catch of seal-skins by
said vessel for the full season aforesaid, claim damages of and
from the Government of the United States of America for the
illegal boarding as aforesaid of the said schooner, and for having
by threats and intimidation broken up the voyage of the said 10
schooner 'Ariel' and thereby caused the loss of at least 1,156
seal-skins to the said vessel, her owners and crew."
On reference to article 1 of the Treaty of 1892 it appears that
a Tribunal of Arbitration was agreed to for, inter alia, the
purpose of settling " the questions which have arisen between
the Government of Her Britannic Majesty and the Government
of the United States concerning the jurisdictional rights of
the United States in the waters of Behring Sea, and concerning also the preservation of the fur-seal in, or habitually
resorting to the said sea, and the rights of the citizens and 20
subjects of either country as regards the taking of fur-seal
in or habitually resorting to the said waters."
Article 8 provided :—
" The high contracting parties having found themselves
unable to agree upon a reference which shall include the question of the liability of each for the injuries alleged to have
been sustained by the other, or by its citizens, in connection
with the claims presented and urged by it; and, being solicitous
that this subordinate question should not interrupt or longer
delay the submission and determination of the main questions, 30
do agree that either may submit to the arbitrators any question of fact involved in said claims and ask for a finding
thereon, the question of the liability of either government upon
the facts found to be the subject of further negotiations."
The findings of fact in the Paris Award refer to the crews
mentioned in the claims in these words :—
" 1. That the several searches and seizures whether of ships
or goods and the several arrests of masters and crews respectively mentioned in the schedule to the British Case, pages 1
to 60 inclusive, were made by the authority of the United 40
States Government."
It is a well recognized principle of law established by both
American and English authorities that vessels are deemed to
be a part of the territory of the nation to which they belong
and that all serving on board are entitled to the protection of
its flag.
l. Robinson's     In support of this proposition we refer to the case of the
Reports, p. 23 " Endrought," where the nationality of the master of a trading
vessel being in question Sir W. Scott says " that   mariners
are to be characterized by the country in whose service they are "®
employed." I*
THE  SCOPE  OP THE  CONVENTION.
17
Webster in his speech in defence of the Washington Treaty
after quoting from a letter from the Department of State to
the British Plenipotentiary
" In every regularly documented American merchant vessel
the crew who navigate it will find their protection in the flag Works of
which is over them." proceeds as follows:
Daniel Webster, 9th edition, vol. 5,
p. 146.
" This declaration will stand, not on account of any particu-
ar ability displayed in the letter which it concludes, still less
on account of the name subscribed to it. But it will stand because it announces the true principles of public law, because
it announces the great doctrine of the equality and independence of nations upon the seas ; and because it announces
the determination of the Government and the people of the
United States to uphold those principles and to maintain
that doctrine through good report and through ill report
forever. * ^ * Henceforth the deck of every
American vessel is inaccessible for any such purpose. It is
protected, guarded, defended by the declaration which I have
read and that declaration will stand."
20     In the case of the Queen vs. Anderson where again a trading vesssel was in question, Lord Blackburn observed:—
" The expression ' British seaman' may mean one who, what- l. r. Crown
ever his nationality is serving on board a British ship." Cases Reser-
° J x ved, Vol. I,
p. 162.
And Byles, J. said :
" I told the jury that the ship being a British  ship was t^ p 168
under the circumstances a floating island where the British law
prevailed ; that the prisoner though an alien was under the
protection of the British law and was as much subject to its
sanctions as if he had been in the Isle of Wight."
30     In the case of St. Clair vs. the United States the Supreme
Court in giving judgment say:—
" A vessel registered as a vessel of the United States is u. g. Reports
in many respects considered as a portion of its territory, and 154» p- 162-
' persons on board are protected and governed by the laws
of the country to which the vessel belongs.'"
Ln the case of Worth vs. the United States (Alabama Claims),
Rayner J. said :—
nA e>.Steffi        /*} o-^/z.
" If this right of the foreigner inures to him in time of war Sen
between his native and his adopted country, how much more No.
40 consistently may it not seem to belong to him in time of peace? pe|^
If he may rightfully claim this protection when merely residing
or sojourning here, in the pursuit of his gainful callings, with
how much greater confidence may he appeal to it when he has
braved the perils of the deep and embarked his hopes and his
fortunes under that flag which is the ensign of the nation's
power and glory ? Of all the nations of Christendom not one
has done so much to vindicate the freedom of the seas against
that proud and mighty nation that claims to be their 'mistress'
as the United States of America.    No other nation has done so
ca much in imparting to its flag that moral power which speaks to
the nations in the still small voice of warning that it is the emblem
of a nation's might, and that if he who trusts to its protection
be harmed under it, his wrongs shall not go unredressed."
bs—3
Ex. Doc.
21, 2nd
.,44 Cong. 18
THE SCOPE OP THE CONVENTION.
In Schreiber vs. the United States, Mr. Justice Jewell quotes
with approval the following statement from the same judgment :—
Hacketton        " It was a great principle for which our government had
Award?p;a8i. contended from its origin, a principle identified  with the
freedom of the seas, viz.: that the flag protected the ship and
every person and thing thereon not contraband."
It is therefore submitted that the claims referred to are all
the claims which had been presented and urged by Great Britain
prior to the date of the Convention ; and further that Great 10
Britain is entitled to compensation from the United States on
her own behalf, and on behalf of every person who was
interested in any of the vessels in question, their cargoes and
voyage, either as owner, master, mate, member of the crew, or
otherwise. EFFECT OF THE PARIS AWARD.
Under the terms of the Treaty of 1892 both governments
were at liberty to submit to the Paris Tribunal any question
of fact connected with the claims, and the findings made by
the tribunal upon any question so submitted are final; but it
is incumbent upon the commissioners to pass upon any additional facts arising in any claim before them.
The findings of the Paris Tribunal have been previously
quoted, and with reference to the claims which were then
10 before the arbitrators, conclusively establish every point necessary to the granting of compensation, save only the assessment
of the damages sustained, and the question of alleged United
States citizenship of certain claimants which matters were
withdrawn from consideration there.
It is unnecessary to discuss this subject further as it is
common ground.
Mr. Blodgett, one of the United States counsel, in his written argument on damages submitted to the Paris tribunal says:—
" We, however, preface what we have to submit on this u. s., 9,217.
20 feature of the case by saying that, if it shall be held by this
tribunal that these seizures and interferences with British
vessels were wrong and unjustifiable under the laws and
principles applicable thereto, then it would not be becoming
in our nation to contest those claims, so far as they are just
and within the fair amount of the damages actually sustained
by British subjects."
And to the same effect was the language of the leading
counsel for the United States on the opening day of this commission, when he said :—
30     " The representatives of Her Majesty's Government and of r, 5j l 19
the United States came together in Washington with certain
facts settled, to wit, the illegality of certain seizures."
And further on, after alluding to the subject of United
States citizenship which will be hereafter discussed, proceeds :—
" But, as to the main question, the United States Govern- R, 5) L. 45.
ment is as anxious as Her Majesty's Government can be, to
have this sum fixed that we shall pay, and fixed as expeditiously as possible. We are not disputing the liability. The"
40 liability having been fixed, the United States Government
wants to pay the last dollar of damages for which it is liable,
and to pay it as soon as the amount can be agreed upon, or
fixed by this commission."
And again :—" There is no difficulty in my learned friends, R- 10j l. 4.
representing Her Majesty, putting in their entire case, for it is
a mere assessment of damages in the ordinary way."
19 MEASURE OF DAMAGE.
The acts in respect of which damages are claimed were
equivalent to an unwarranted invasion of the territory of a
friendly power in time of peace. They constituted an insult
to the flag of Great Britain, repeated from time to time,
accompanied by the seizure and confiscation of valuable property, in the face of continued protests, and even after the acts
and declarations of the United States Government had given
an implied assurance to the contrary.
The right asserted was so extraordinary in its character, 10
and in particular so contrary to the position assumed by the
United States in their dealings with other nations where the
same principle was involved, that it could not in the ordinary
course of events have been anticipated by any of the persons
engaged in pelagic sealing which it was the avowed intention
of the seizures to interrupt and forever destroy.
The injuries, therefore, which were inflicted were the result
of a wrong unprecedented in its character, designedly perpetrated, without notice, upon innocent persons carrying on a
lawful occupation, executed in a most arbitrary manner, and 20
accompanied with circumstances of great hardship and suffering.
The damages thus caused have been aggravated by the fact
that for many years the United States have disputed their liability,
shifting their ground from time to time from one untenable
position to another equally unsound, during the whole of which
period they have failed to make any reparation whatever to
the parties who were the direct sufferers from their acts and
pretensions.
It having now been determined beyond question, that there
was no foundation in international law for the assertion of any 30
of the claims put forward by the United States, the ordinary
practice among nations requires that the damages should be
assessed upon a scale so liberal aJHo leave no room for doubt
that any form or class of injury^Sustained has been left without
a full and just reparation.
In support of the position here assumed the language of the
counsel for the United States before the Geneva arbitration
may be quoted.
In laying down the rule which should control that tribunal
in the assessment of damages in cases similar to that now aq
before the present commission they submitted the following
propositions of law :—
I (a.) When the demand of damage is founded on a tort, as
distinguished from a contract, severity is to be shown toward
the wrong-doer, and the losses which the injured party has
20 MEASURE  OP DAMAGE.
21
suffered are to be appreciated with liberality for the purpose
of indemnification.
" Infractions of contract are to be anticipated, in view of the
too prevalent carelessness of men in this respect, the possibility
of which will, therefore, have been foreseen and taken into
consideration by the other party.
" But when there is violent wrong, it is a fact beyondprovision,
which of course occasions more perturbation and. derangement
of the affairs of the injured party, and which has a character
10 of perversity more grave than that involved in the mere non-
execution of a contract. Of course reparation should be
exacted with more rigour.
I (b.) When the damage claimed is founded on a tort, the
culpable animus of the wrong-doer constitutes an element of
the question of damage. In such cases the injured party is
entitled to damages beyond the amouut of actual loss, in the
nature of exemplary or punitive damages."
And later in the same argument they say :—
" The doctrine in this respect, as understood in Great Britain
20 and the United States, is stated by an American author as
follows:—
" ' In these actions all circumstances of aggravation go to
the jury.
" ' The necessary result of this rule is that all the attendant
circumstances of aggravation which go to characterize the
wrong complained of may be given in evidence; and so it has
been held, both in England and in this country. Indeed, it
may be said that in cases of tort, where no fixed and uniform
rule of damages can be declared, the functions of the court at
30 the trial of the cause are mainly to the reception and exclusion
of evidence when offered, either by way of aggravation or
mitigation, and to a definition of the line between direct and
consequential damage.'
" On this point there is unanimity of opinion among jurists,
both of the common law, as in Great Britain and the United
States, and of the civil law, as in countries of the Roman law
in Europe and America.
" The illustration of this rule, as among private persons, also
applies to governments.
40 " In fact," says Mayne, " if any other rule existed, a man of
large fortune might, by a certain outlay, purchase the right of
being a public tormentor. He might copy the example of the
young Roman noble mentioned by Gibbon, who used to run
along the Forum, striking every one he met upon the cheek,
while a slave followed with a purse making a legal tender of
the statutory shilling."
The law as above enunciated is supported by undoubted
authority.
Sutherland on Damages (referred to by Mr. Blodgett in his
50 written argument at Paris as now a standard authority in the
courts of the United States, at page 160,) points out that the
motive with which a wrong is done in some cases affects the
rule by which compensation is measured. Where there is a
fraud or other intentional wrong, there is not the same strictness to exclude remote and uncertain damages, even where
punitive damages are not involved.    And then, after pointing 22
MEASURE  OP DAMAGE.
out that this does not so much apply to contracts, where the
party can protect himself by express stipulations, proceeds :—
Sutherland on | None of these considerations have any bearing in an action
Ed™ Vol.' l," purely of tort. The injured party has consented to enter into
p. 209. no relation to the wrong-doer by which any hazard of loss
should be incurred; nor has he received any consideration, or
chance of benefit or advantage, for the assumption of such
hazard ; nor has the wrong-doer given any consideration, nor
assumed any risk, in consequence of any act or consent of his.
The injured party has had no opportunity to protect himself 10
by contract against any uncertainty in the estimate of damages;
no act of his has contributed to the injury; he has yielded
nothing by consent; and, least of all, has he consented that
the wrong-doer might take or injure his property, or deprive
him of his rights, for such sum as, by the strict rules which
the law has established for the measurement of damages in
actions upon contract, he may be able to show with certainty
he has sustained by such taking or injury. Especially would
it be unjust to presume such consent, and to hold him to the
recovery of such damages only as may be measured with cer- 20
tainty by fixed and definite rules, when the case is one which
from its very nature, affords no elements of certainty, by which
the loss he has actually suffered can be shown with accuracy
by any evidence of which the case is susceptible; nor is he to
blame because the case happens to be one of this character ; he
has no choice, no selection. The nature of the case is such as
the wrong-doer has chosen to make it; and upon every consideration of justice, he is the party who should be made to
sustain all the risk of loss which may arise from \ the uncertainty pertaining to the nature of the case, and the difficulty 30
of accurately estimating the results of his own wrongful act."
Pothier after laying down the doctrine that in cases of con-
ls tract the debtor is presumed to have undertaken to pay only
1      5-9' such damages as may have been foreseen as the natural result
Pothier Obligations (Evan
Translation),
Nos. 116, 159
160, 162, and
163.
Ibid. 166 and
168.
of the breach of contract, or such as under the circumstances
of the particular case must have been foreseen, proceeds thus
to enumerate the principles governing in cases of torts :—
" The principles, which we have hitherto established, do not
prevail when it is the fraud of my debtor, that gives me a
claim for damages and interests; in this case the debtor is 40
liable, indiscriminately, for all the damages and interest which
I have suffered in consequence of his fraud ; not only for those
which I have suffered in respect of the thing which is the
object of the contract, propter rem ipsam, but for all damages in
respect of any other property, without regarding whether the
debtor could be presumed to have intentionally subjected himself to them or not; for a person who commits a fraud obliges
himself, velit nolit, to the reparation of all the injury which it
may occasion.
" The damages and interests which result from the fraud 50
of the debtor, differ also from ordinary damages and interests ;
inasmuch as the law of the code above cited, and the moderation which, according to the spirit of that law, is reserved with
respect to common damages and interests, does not apply to
those which result from fraud. The reason of the difference
is evident; this moderation, which is practised with respect to
ordinary damages and interests is founded upon the principle
already developed, that a debtor cannot be presumed to have
intended to subject himself to the obligation of damages and
interest to a greater amount than he could suppose that the 60 MEASURE  OP DAMAGE.
23
damages and interest to which he submitted, in default of performing his obligation, would come to. Now this principle
cannot have any application with respect to damages and
interests arising from fraud ; because whoever commits a fraud
obliges himself indiscriminately, velit nolit, to the reparation of
the injury which it occasions ; it ought nevertheless to be left
to the prudence of the judge, even in cases of fraud, to use a
certain degree of indulgence in the estimate of damages and
interest.
10 " These decisions apply whether the fraud has been committed, delinquendo or contrahendo, Molin, ibid. n. 155.".
The rules as laid down by Pothier are embodied in articles
1146 to 1151 inclusive, of the Code Napoleon, as follows :—
" Article 1146.—Damages are due only when the debtor is
in default to fulfil his obligation, except, however, when the
thing which the debtor has bound himself to give or to do,
could be given or done, only within a certain time, which he
has allowed to pass."
I Article 1147.—The debtor is condemned, if there is occa-
20 sion for it, to the payment of damages, whether for inexecution
of the obligation or delay in its execution, unless he proves
that the inexecution proceeds from an extraneous cause which
cannot be attributed to him ; even if there be no bad faith on
his part."
| Article 1148.—No damages are due, when in consequence
of irresistible force or fortuitous event, the debtor has been
prevented from giving or doing that to which he was obliged,
or has done what it was forbidden him to do."
" Article 1149.—The damages due to the creditor are in
30 general, the loss he has sustained and the profits of which he
has been deprived, saving the following exceptions and modifications."
" Article 1150.—The debtor is liable only for the damages
which were foreseen or which might have been foreseen at the
time of the contract, when the inexecution of the contract is
not caused by his fault."
"Article 1151.—Even in the case where the inexecution of
the contract, results from the debtor's fraud, the damages
should include, as respects the loss suffered by the creditor and
40 the profit of which he has been deprived, only what is an
immediate and direct consequence of the inexecution of the
contract."
See also Laurent, Principes du Droit Civil, Nos. 283 and Laurent, Nos.
523.
Under the latter article he proceeds thus :
" Are the rules which the code establishes as to damages in
the matter of contractual obligations applicable to the action
which arises from an offence or quasi offence ? No, in so far as
these rules are founded on the existence of a contract.
50 "Articles 1150 and 1151 establish a responsibility that
differs according as the debtor is in good faith or is guilty of
fraud. It is agreed that this distinction is inapplicable in the
matter of torts. The author of it, even though he be in good
faith, must repair all the damage caused, whether it could have
been foreseen or not. If in contractual obligations, a distinction is made between the damages that could have been foreseen at the time of the contract, and those which could not
have been foreseen, that is because of the very nature of the
damages which result from a contract; it is supposed that the
60 parties have tacitly agreed that the responsibility shall not
i
3 and 523. B^j
24
MEASURE  OP DAMAGE.
31, Demo-
lombe, No. 684
exceed the foreseen damages.    That proves that the distinction
would be without reason, in the case of offences, which imply -
the absence of a meeting of wills and consequently of all prevision.
See also Demolombe
I Articles 1382 and 1383, in so far as they relate to the obligation to make amends, are couched in the most general terms:
I Article 1382.—Every act of man which causes damages
to another, obliges him by whose fault it has happened, to
repair it." 10
"Article 1383.—Every one is responsible for the damage
he has caused."
| But what is the extent of his responsibility? And what
does the obligation to make amends, to which it gives rise,
consists of ?
I Our texts are not explicit; and from their very silence
results this fundamental rule, that we have often had to apply
in the preceding developments, viz. : that the extent of the
amends, and the different ways in which they can be rendered,
are left by the legislator to the discretionary appreciation of the 20
judges. This rule, besides, is very wise; we might even say
necessary. We have not here to seek for the common intention of the parties as the judge must do in the case of contractual obligations. There is no contract; there is merely an act,
the character and consequences of which it is the judge's duty
to appreciate, taking account of the numberless conditions
under which the act could have taken place and which it was
quite impossible that the legislator could undertake to foresee.
I It therefore belongs to the judges to decide on the facts,
according to the particular circumstance of each case.. .to decide 30
ex ozquo et bono, according  to equity, the sovereign rule to
which we are always brought back in the matter." LOSS OF CATCH.
Great Britain is entitled to recover for loss of catch as being
the direct consequence not only of the acts complained of but
as being the very object of such acts.
The contention of the counsel for the United States before
the Paris Tribunal may possibly be repeated before this commission.    It was said in that argument:—
" All the claims contain an item for " loss of probable
catch "; " loss of estimated catch" ; " balance of probable
10 catch"; "probable catch, &c." and it is contended that all
these items are subject to the objection that they are prospective profits; uncertain and contingent in their nature and
cannot be made the basis of claim for compensation.
Various authorities were cited in support of this contention.
In particular reference was made to the award in the "Alabama"
case, and a citation made from that award. It reads as
follows:—
" And whereas prospective earnings cannot properly be
made the subject of compensation inasmuch as they depend
20 in their nature upon future and uncertain contingencies, the tribunal is unanimously of opinion that there is no ground for
awarding to the United States any sum by way of indemnity
under this head."
A reference to the proceedings before the Geneva Arbitration will show that as a matter of fact, although this general proposition was laid down in the award, a sum in lieu of prospective profits was allowed to the Government.    By reference to f. r. of the
Protocol No.  29, it will appear that the award was finally Sr'd_ g^f.   '
made up on the basis of allowing a sum equal to 25 per cent
42 Cong.
•
30 of the value of the vessel and outfit in lieu of prospective
catch, this sum amounting in that case to $988,000.
Apart  from   this,   a   radical   distinction   exists   between Gen. Aw.,
the  "Alabama "  case and the present.    In the case of the p-°44) 'p. 542.'
"Alabama" it was not contended that it was the design of
the British Government to cause the loss which ensued, nor
was such loss the direct result of the negligence with which
they were charged.
Here the loss of catch was the necessary and immediate
consequence of a positive act of the United States Government
40 intended by them to accomplish the very damage complained
of.
The argument against giving damages for the prospective
catch is capable of being reduced ad absurdum. Take the case
of a vessel found on sealing grounds with every appliance for
catching1 seals : the seals are there to be caught; it must be an
incorrect proposition, to assert that the person who illegally
B s—4 25 26
LOSS  OF  CATCH.
prevents the ship's crew from catching seals should not pay
damages.
The United States have contended that the tribunal should
give only the value of the ship and equipment, and possibly
interest on that value. Assume then a case quite possible
where a United States ship illegally takes charge of a sealer,
tows her to a safe harbour, and there keeps her without injury
until the sealing season is over. According to the argument
put forward no damages for loss of catch could be recovered,
because it may be uncertain how many seals the vessel would \q
have caught during the period of detention.
This proposition is laid down by Mr. Blodgett, but he afterwards confutes it by saying:—
I While it is conceded that there has been some relaxation
of the rigid rule of the early cases in England and the United
States, in regard to the allowance of profits as an element
for the award of damages or compensation, it is undoubtedly
still the rule in both countries, that profits can only be
allowed as damages where they are in the contemplation of the
parties, in cases arising on contract, and where they are the 20
necessary and proximate result of the injury in cases of tort,
and in those latter cases only where they can be proven or
established with substantial certainty."
Here " the necessary and proximate result of the injury "
may be established " with substantial certainty" by having
regard to the nature of the season, the equipment of the
vessel, the catch of other seasons, the catch of similar vessels
in the same season, and otherwise.
In this connection the following authorities are in point:—
a ,   •, " Compensation may be recovered for such proximate losses qn
oedgwick on * J in1 r t • "
Damages, 8th as are also the natural result of the wrongful act, either in the
^d-> s-122>at nature of things, or in the light of special circumstances of
which the wrong-doer had notice."
Ibid,
Ibir
142,
170.
" In order to be compensated a consequential injury must
be such a result of this injury as, according to common experience and the usual course of events, might reasonably have
been anticipated."
" Absolute certainty is not required. The true rule on the
subject is announced by the Supreme Court of Michigan in a
well-reasoned case.    ' Shall the injured party be allowed to 4q
recover no damages (or merely nominal) because he cannot
show the exact amount with certainty, though he is ready to
show to the satisfaction of the jury, that he has suffered large
damages by the injury ? Certainty, it is true, would he thus attained ; but it would be the certainty of injustice... .Juries are
allowed to act upon probable and inferential, as well as direct
and positive proof. And when, from the nature of the case,
the amount of the damages cannot be estimated with certainty,
or only a part of them can be so estimated, we can see no
objection to placing before the jury all the facts and circums- en
tances of the case having any tendency to show damages, or
their probable amount; so as to enable them to make the
most intelligible and probable estimate which the nature of the
case will permit. In Satchwell vs. Williams, Phelps, J., said
that it was no objection that the defendant; could only state LOSS  OP  CATCH.
27
his damage approximately, though it would be to show that
his evidence was so vague and uncertain, that the court could
not deduce from it, that the defendant had sustained any
particular amount of damage."
" The chief difficulty experienced is in cases of prospective ibid, s. 172.
loss. When the plaintiff claims compensation for consequences
of the injury which he has not yet experienced, he must prove
with   reasonable  certainty that such   consequences are   to
happen ; and compensation is not to be given where there is a
10 mere conjectural probability of future loss. The jury has no
right to allow damages for mere possibilities.
" Future consequences, which are reasonably to be expected
to follow an injury, may be given in evidence for the purpose
of enhancing the damages to be awarded. But to entitle such
apprehended consequences to be considered by the jury, they
must be such as in the ordinary course of nature are reasonably
certain to ensue. Consequences which are contingent, speculative, or merely possible, are not proper to be considered in
ascertaining the damages.    To entitle a plaintiff to recover
20 present damages for apprehended future consequences, there
must be such a.degree of probability of their occurring, as
amounts to a reasonable certainty that they will result from
the original injury."
And again he says:—
" This ' reasonable certainty' does not mean absolute cer- ibid, s. 172.
tainty, but reasonable probability."
And further:—
" But the fact and amount of future loss is a question for the ibid, s. 172.
jury, which has discretion in estimating it."
30     Again he says :—
"The allowance of profits, when not excluded as unnatural ibid, s. 174.
or remote, is wholly a question  of the  certainty  of proof.
Wherever there is an interference with, or withholding of
property, or breach of contract, or commission of a tort, the
gain prevented, if provable, may be recovered."
And again we find the following :—
" The general   rule is, then, that a plaintiff may recover ibid, s. 177.
compensation for any gain which he canmake it appear with
reasonable certainty the defendant's wrongful act prevented
40 him from acquiring, subject, of course, to the general principles as to remoteness, compensation, &c, already stated.
His compensation will be measured by thft most liberal
scale which he can show to be a proper one. Damages
for interruption of the business of a manufacturer, for
instance, may be measured either by the rental value of the
property kept unproductive, or by the profits of manufacture
lost if the plaintiff can show that they would have been greater than- the rental value. The questions that arise in the cases
are, therefore, questions of the sufficiency of proof, and it is to
50 be expected that the courts will not in all cases agree in their
interpretation of facts; but the decisions show, under the
circumstances, a surprising degree of harmony."
The author draws a distinction between the damages recoverable in the case of the immediate destruction of property and
cases were property is simply improperly detained. At the
end of the section he uses the following words:—
" But although in this class of actions the value of property ibid, s. 178.
destroyed, with interest for the time the owner was deprived 28
LOSS  OP  CATCH.
Ibid, s. 182.
of it, will compensate him for the loss if no special or extraor
dinary damage occurred, yet, if the injury not only caused a
loss of property, but also other proximate loss, further compensation should be given to that extent."
Again he says :—
" Where it clearly appears that the defendant has interrupted an established business from which the plaintiff expected
to realize profits, the plaintiff should recover compensation for
whatever profit he makes it reasonably certain he would have
realized. Here as elsewhere the question is one of fact, whe-10
ther the profit can be proved with reasonable certainty. In an
Illinois case the court said:
I' We all know that in many, if not all, professions and callings, years of effort, skill and toil are necessary to establish a
profitable business, and that when established it is worth more
than capital. Can it then be said, that a party deprived of it
has no remedy, and can recover nothing for its loss when produced by another ? It has long been well recognized law, that
when deprived of such business by slander, compensation for
its loss may be recovered in this form of action. And why 20
not for its loss by this more direct means ? And of what does
this loss consist but the profits that would have been made had
the act not been performed by appellants ? And to measure
such damages, the jury must have 3ome basis for an estimate,
and what more reasonable than to take the profits for a reasonable period next preceding the time when the injury was
inflicted, leaving the other party to show, that by depression in
trade or other causes, they would have been less ? Nor can we
expect that in actions of this character, the precise extent of
the damages can be shown by demonstration. By this means 30
they can be ascertained with a reasonable degree of certainty.'
I Allison vs. Chandler, the leading case on this subject, was
a case where the defendant, a landlord, wrongfully ejected the
plaintiff, his tenant, from premises where he was established as
a jeweller. In an able opinion the court held that the plaintiff
was entitled to damages for injury to his business.
"The defendant broke his contract not to compete with the
plaintiffs business. It was held that the plaintiff might recover compensation for the profit he had lost, to be ascertained
by comparing the amount his business actually fell short of 40
what he might have done, with the business done by defendant. (Peltz v. Eichell, 62 Mo. p. 171.) Where the injury
complained of was, that the defendants had invited the plaintiff's servants to dinner and induced them to leave him, the
injurious consequence complained of was, that the plaintiff
had lost the profits of the sales of pianos for two years; and
this was held not to be too remote, although the servants were
not hired by the plaintiff for any definite period, but worked
by the piece. Richardson J., remarked: 'The damages he is
entitled to receive from the defendants is not necessarily to be 50
confined to those servants he might have in his employ at the
time they were so enticed, or for the part of the day on which
they absented themselves from his service ; but he is entitled to
recover damages for the lost sustained by their leaving him at
that critical period.' (Gunter v. Astor 4 Moore p. 12)."
At section 46 the same author points out that the difficulty
in estimating in money the amount of any head of damage is
no ground for disallowing it:—
bid, s. 46. " The chief objection urged against the allowance of com
pensation for mental suffering is that it is not capable of being 60
11 Mich., 542. LOSS OP CATCH.
29
estimated in money ; but that argument might as well 1
urged against awarding damages for physical
>e
pain. 'Wounding a man's feelings,' said Beckley, C.J., ' is as much actual
damage as breaking his limbs. The difference is, that one is
internal and the other external; one mental, the other physical ; in either case the damage is not measurable with exactness. There can be a closer approximation in estimating the
damage to a limb than to the feelings, but at the last the
amount is indefinite.'
10 " That the amount of damages allowable in such a case as
this is not capable of easy and accurate mathematical computation is freely conceded, but that should not be a sufficient
reason for refusing or defeating the right of action altogether,
for the same objection may be urged with the same force in all
cases where mental and bodily suffering are treated as proper
elements of damage."
" The Supreme Court of Massachusetts, in a carefully reasoned
opinion, has effectually disposed of the objection."
Again :—
20 « Prospective damages are frequently recovered in actions
for personal injuries. Thus in such actions the plaintiff may
recover for permanent loss of earning power, which includes
both the pecuniary loss he has sustained and that he is likely
to sustain during the remainder of his life, or for future pain
or permanent physical injury. In an action for loss of service.
The plaintiff may recover compensation for probable future
loss during the continuance of the term of service."
Ibid, s. 86.
The same rule is to be found in Sutherland, on Damages
30
Profits of special contract :•
The liability for the profits which would have resulted Snti
from the performance of a contract is co-extensive with the
power to contract; and the government is liable therefor to
the same extent as an individual. The right of a party to
recover the profits he would have made in fulfilling a contract
depends solely upon the fault of the other party to it, and
plaintiff's ability to show that the profits claimed were
reasonably certain to have been realized but for the wrongful
act complained of. It is not an insuperable objection to
their recovery that they  cannot be directly and absolutely
40 proved. The general uncertainty attending human life and
the special contingencies as to its duration on account of the
physical condition of an individual whose rights are involved
do not prevent the recovery of damages for causing his death
or injuring his person. An agreement by one person to
support another during life is an entire continuing contract
upon the total breach of which the obligor is liable for full
and final damages estimated to the time the person who was
to be supported would probably die. It is the constant
practice to so assess damages in actions to recover for per-
50 sonal injuries. In the nature of things where performance
has been prevented the proof of profits cannot be direct and
absolute. The injured party must, however, introduce
evidence legally tending to establish damage and sufficient
to warrant a jury in coming to the conclusion that the
damages they find have been   sustained;   but no  greater
Vol. I, p. 141 Ibid, s. 70.
Ibid,
to p.
see note
157.
Did,
30
LOSS OP  CATCH.
degree of certainty in this proof is required than of any
other fact which is essential to be established in a civil action.
If there is no more certain method of arriving at the amount
the injured party is entitled to submit to the jury the particular facts which have transpired and to show the whole
situation which is the foundation of the claim and expectation
of profit, so far as any detail offered has a legal tendency to
support such claim."
" Toitious Interference with Business.—In actions for torts,-^—,
injurious to business, the extent of the loss is provable by the 10
same testimony, and recovery may be had for such as is proved
with reasonable certainty ; it is enough to show what the profits
would probably have been. Certainty is very desirable in
estimating damages in all cases; and where, from the nature
and circumstances of the case, a rule can be discovered by
which adequate compensation can be accurately measured, it
should be applied to actions of tort, as well as to those upon
contract. The law, however, does not require impossibilities,
and cannot, therefore demand a higher degree of certainty than
the nature of the case admits. If a regular and established 20
business is wrongfully interrupted the damage thereto can be
shown by proving usual profits, for a reasonable time anterior
to the wrong complained of. But it is otherwise where the
business is subject to the contingencies of weather, breakages,
delays, etc. There is no good reason for requiring any higher
degree of certainty in respect to the amount of damages than
in respect to any other branch of the cause. Juries are allowed •
to act upon probable and inferential as well as direct and positive proof. And when from the nature of the case the amount
of the damages cannot be estimated with certainty, or only a 30
part of them can be so estimated, no objection is perceived to
placing before the jury all the facts and circumstances of the
case having any tendency to show damages, or their probable
amount, so as to enable them to make the most intelligible and
accurate estimate which the nature of the case will permit.
This should, of course, be done with such instructions and
advice from the court as the circumstances may require, and
as may tend to prevent the allowance of such damages as may
be merely possible, or too remote, or fanciful in their character
to be safely considered as the result of the injury." 40
Again, referring to Allison and Chandler supra.
" In this case Christiancy, J., said : ' Since, from the nature
of the case (one of injury to business), the damages cannot be
estimated with certainty, and there is risk of giving by one
course of trial less, and by the other more, than a fair compensation—does not sound policy to say nothing of justice—
require that the risk should be thrown upon the Wrong-doer,
instead of the injured party ? However, this question may be
answered, we cannot resist the conclusion that it is better to
run a slight risk of giving somewhat more than actual com- 50
pensation than to adopt a rule which, under the circumstances
of the case, will, in all reasonable probability, preclude the
injured party from the recovery of a large proportion of the
damages he has actually sustained from the injury, though the
amount thus excluded cannot bo estimated with accuracy by
a fixed and certain rule.'"
In this note also many other English and American authorities to the same effect are cited.
Again :
" The fact that the value ol
' a contract, or the advantage to go
be derived from it, is contingent—that is, that the  expected LOSS OP  CATCH.
31
advantage depends on the concurrence of circumstances subsequently to transpire, and which may by possibility not happen, is not an insuperable objection to recovering of damages
from such a loss. The chance, so to speak, of obtaining that
advantage by performance of the contract, and the conjunction
of the necessary subsequent facts, may be valuable. The nature of the contingency must be considered. If it is purely conjectural, and cannot be reasonably anticipated to happen in the
usual course of things, it is too uncertain. There must be proof
10 legally tending to show and sufficient to satisfy the jury that it
would happen. The chance that a father would pay a son's
debt to procure his release from custody, has been held capable
of estimation."
Tarleton vs. M'Gawleymay also be cited :
This was an action on the case. The declaration charged i peake N.P.
that the defendent contriving and maliciously intending to 1>- 270-
hinder and deter certain natives from trading with the plaintiff's ship, with force and arms, fired from a certain other ship
at a cauoe filled with natives and killed one, whereby the said
20 natives of the said coast were deterred and hindered from
trading with the plaintiff's ship and the plaintiff lost their
trade.
It will be observed that unless the special damage alleged
was sufficient the whole action would fail and a non-suit must
have been granted.
Lord Kenyon said :
" This action is brought by the plaintiffs to recover a satisfaction for a civil injury which they have sustained. The injury complained of is,  that by the improper conduct of the
30 defendant the natives were prevented from trading with the
plaintiffs. The whole of the case is stated on the record, and p. 273.
if the parties desire it, the opinion of the court may hereafter
be taken whether it will support an action. I am of opinion
it will. This case has been likened to cases which it does not
at all resemble. It has been said that a person engaged in a
trade violating the law of the country cannot support an action
against another for hindering him in that illegal traffic. That
I entirely accede to, but it does not apply to this case. This
is a foreign law ; the act of trading is not itself immoral, and
40 a jus positivum is not binding on foreigners. The king of the
country and not the defendant should have executed that law.
Had this been an accidental thing, no action could have been
maintained, but it is proved thai the defendant had expressed an
intention not to permit any to trade until a debt due from the
natives to himself was satisfied. If there was any court in
that country to which he could have applied for justice he
might have done so, but he had no right to take the law into
his own hands."
" The plaintiffs had a verdict, and the parties agreed to refer
50 the damages to arbitration."
brig of 142
The " Bisoluto " :—In this case a French fishing ung w x*a Law Reports
tons employed in the cod fishery off the Banks of Newfound, ^sfenTpage
land came in collision on the 6th of July, 1881, with an Italian no-
barque, and in consequence of the collision was compelled to
put into port for repairs, but her repairs having been completed,
returned to the fishing ground before the close of the fishing
season.   In an action of damages instituted on behalf of the 32
LOSS OP  CATCH.
Ibid, p. 112.
owners of the brig against the barque, the Court pronounced
the barque solely to blame for the collision and referred the
question of damages to the Registrar and merchants.
In giving his judgment on this reference, the Registrar
said :—
IA sum of 22,000 francs was allowed for loss of fishing. The
vessel had a crew of twenty men and eight small boats^it
being the practice for the boats, with two men in each and long
&
immense
lines, to surround, the vessel whilst fishing. An
number of French as well as native and somewhat smaller 10
vessels are engaged in the trade, some of them landing their fish
from time to time, and others, including the ' Emma,' taking
everything they catch to Bordeaux, receiving a bounty for so
doing from the French Government. The cod fishery opens
late in April and ends in November. The ' Emma' had left
Dieppe as usual about the middle of March, with the necessary salt to preserve the fish to be caught by her, going
straight to St. Pierre, to procure herrings as bait for the early
fishing, and afterwards having damaged her windlass she had
returned to St. Pierre, and having got a supply of bait for the 20
later fishing had only just resumed fishing when the collision
in question occurred. At the close of the season she proceeded
to Bordeaux and landed and sold 36,474 cod, which realized
37,855 francs. It was proved that the average number of fish
caught by other vessels in those seas greatly exceeded that
quantity and that unless that was the case, the proceeds would
not cover the expenses. The registrar and merchants therefore
came to the conclusion on the information furnished especially
by the defendants, that 22,000 francs should be allowed as the
loss sustained by the interruption to the fishing occasioned by 30
the collision, an allowance for demurrage in the usual way
being inapplicable to this case."
This report was affirmed by the Court.
Sir Robert Phillimore in giving judgment, said :
" I do not think I need further trouble the counsel for the
plaintiffs. Looking to all the circumstances of this case, and
to those authorities which have been referred to, and to others
which exist and might have been cited in favour of the plaintiffs, and having read Mr. Cookells notes on the case, I am of
opinion that I ought not tc interfere with the report of the 40
registrar, and I therefore dismiss the motion with costs."
See also the " Gleaner " Aspinall's maritime cases vol. 3, N.S.
582 ; also the " Argentino " 14 Ap. Ca. p. 519; also Phillips vs.
London and North-western Railway Co. 5 C. P. D. 280.
In the Bay Fortune cases the United States claimed against
the British Government damages, the great bulk of which consisted of probable catch for the year in which the interruption
took place, although the interruptions extended only over a
period of one day.
The claims for damages aggregated $105,305 in respect of Rn
twenty-two vessels.
The ground taken was that the interference with certain of
the vessels' operations (all of which were in the bay awaiting
catches), affected the  operations of the whole twenty-two, LOSS OP CATCH. 33
inasmuch as the catches interfered with would have loaded the
whole fleet.
It was claimed that if not interfered with all  the vessels
might have obtained profitable cargoes.
Four vessels only, out of the fleet of twenty-two, were
actually fishing.
The largest claim appears to be that   of the schooner state Papers,
" Wildfire," $6,309.82.    It is made up thus :— 82*7™™'
Wages of captain and crew $ 628 57
10 Insurance  570 00
Ballast  58 00
Lumber and cost of platforms and stage.. 70 37
Provisions  204 33
$1,530 97
The last preceding voyage to Fortune Bay,
January,  1875,  she brought back  a
cargo of herring, which she sold for $ 6,414 70
The expenses were    1,535 85
$ 4,878 85
20 Add above    1,530 97
Total $6,309 82
The smallest formulated claim is that of the " Isaac Rich,"
$2,491.09, made up as follows:—
Wages : $    795 80
Insurance  400 00
Store bill  213 71
Salt  322 88
Cash  103 23
Bill of herring  120 22
30 Cargo of trade    1,032 25
$2,986 09
Sale of herring, 918 barrels at $2    1,836 00
$ 1,150 09
The cargo of the vessel had been contracted for at $3 per barrel, but on
account of delay only brought $2, being
aloss of.        918 00
Full cargo would have been 1,200 barrels,
but on account of disturbance did not
40 obtain but 918 barrels, leaving a deficiency of 282 barrels, which would have
cost $423 and sold for $846, a loss of...      428 00
Total $2,491 09
B S—5 B H»*l
34 LOSS OP CATCH.
The claim of the schooner " Hereward " is made up as follows :—
Outfit for voyage $1,900 00
Wages (fourmonths)    1,000 00
Provisions       400 00
Outfit for vessel, fitting out, etc.       400 00
Insurance       600 00        j
———	
$4,300 00
Less part of outfit returned       500 00
$3,800 00
If the vessel had made a fairly prosperous
voyage her profit would have been $ 2,000 00
 $5,800 00
Less small amount of herring brought back         62 00
$ 5,742 00
state Papers,      The claims were settled by the payment of a lump sum
p. 74-78.     ' amounting to about two-thirds of the   sum  claimed,  and
implying the consent of both nations to the principle involved
in the claim for catch.
-'■=*• .•
10 1
INTEREST.
It is submitted that the indemnity should comprise interest
calculated at the rate current in British Columbia, on the
whole amount of the loss or damage from the time such dam.
age was suffered to the expiration of the six months allowed
by the convention for the payment of the amount awarded.
In support of this proposition, the language of the counsel
for the United States before the arbitration at Geneva may be
again adopted :—
10     I The case of the United States desires the tribunal to The argument
award a sum in gross in reparation of the losses complained at Geneva,
of; and the counsel request this, assuming the tribunal shall p'     '
be fully satisfied that the said losses are properly proved in
detail, and that the sum total thereof, as claimed, is due by
Great Britain.
" In that contingency the counsel assume that interest will
be awarded by the tribunal as an element of the damage.
We conceive this to be conformable to public law, and to be
required by paramount considerations of equity and. justice.
20     | Numerous examples of this occur in matters of international valuation and indemnity.
" Thus, on a recent occasion, in the disposition by Sir
Edward Thornton, British Minister at Washington, as umpire,
of a claim on the part of the United States against Brazil, the
umpire decided that the claimants were entitled to interest by
the same right which entitled them to reparation. And the
interest allowed in this case was $45,077, nearly half of the
entire award ($100,740).
" So in the case of an award for damages by the Emperor
30 of Russia in a claim of the United States against Great Britain,
under the treaty of Ghent, additional damages were awarded
in the nature of damages (interest ?) from the time when the
indemnity was due. In that case Mr. Wirt holds that,
according to the usage of nations, interest is due on international transactions.
I In like manner Sir John Nicholl, British Commissioner
in the adjustment of damages between the United States and
Great Britain under the Jay Treaty, awards interest, and says :
" * To reimburse to claimants the original cost of their property, and all the expenses they have actually incurred,
together with interest on the whole amount would, I think,
be a just and adequate compensation. This, I believe, is the
measure of compensation usually made by all belligerent
nations for losses, costs, and damages occasioned by illegal
capture.'"
In answering this argument Sir Roundall Palmer, for Great Ibid, p. 562.
Britain, referring to the cases under the Jay Treaty cited by the
United States counsel says :
" This again, was a case of the award of interest on a prin-
c0 cipal value, actually ascertained and proved to be recoverable
35 if
36
INTEREST.
by appropriate evidence, in respect of property belonging to
citizens of the United States, which had been seized and
appropriated, and unjustly detained, and (in some cases) sold
or otherwise disposed of for their own benefit, by persons acting
under the public authority of the Crown of Great Britain. In
both these essential points this precedent of 1794 stands in
direct opposition and contrast to the claims now before the
present tribunal."
This remark applies exactly to the claims before the present
commission and shows that the Jay Treaty  case is a pre- 10
cedent in point.
The arbitrators at Geneva, on the reasoning quoted above
decided " that it was just and reasonable that interest showed
be allowed at a reasonable rate."
In the opinion of United States Attorney General Wirt
referred to in the above extracted argument the following language is used :—
11st. Is interest a part of the indemnity awarded by the
Emperor ?"
And a little further down on the same page :— oq
Attnrnnss°f "After the most deliberate consideration of all the argu-
Generaif Vol. ments which have been urged pro and con, I am clearly of the
2, p. 29. opinion that interest at least is a necessary part of the indem
nity awarded by the Emperor."
And at page 31 he makes the following remarks :—
I And then the only remaining inquiry is, what is the award ?
It is, that the United States are entitled to a just indemnification for the slaves and other property carried away by the
British forces, in violation of the first articles of the treaty of
Ghent. ^ What is just indemnification for a wrong ? Is it the qq
reparation of the one-half or two-thirds of that wrong? Is it
anything less than a reparation of the whole wrong ? On
these few simple ideas the whole question turns. If an injury
is justly redressed which is only half redressed, then the British commissioner is right; but if an injury is only redressed
when the redress is commensurate with the whole extent of
the injury, then he is wrong. Let us put aside the emphatic
and striking word just, and take the word indemnification
p.31. alone: what does the  word 'indemnification' mean?    The
saving harmless from danger. Is that man saved harmless 40
from danger who is left to bear one-half of the damage himself ? The question seems to me too plain for discussion. The
British commissioner (Sir John Nicholl), who composed part
of the board under the seventh article of the treaty of 1794,
seems to have entertained a very different opinion on this subject from his countryman who is now sitting to execute the
Emperor's award. His words are : 'to reimburse to claimants
the original cost of their property, and all the expenses they have
actually incurred, together with interest on the whole amount,
would I think, be a just and adequate compensation. This, 50
I believe, is the measure of compensation usually made by all
belligerent nations for losses, costs and damages occasioned by
illegal captures.' Now, at the time of the wrongs now under
consideration, we were, as to Great Britain, neutrals and
friends ; and stood protected by the most sacred of all instruments—a treaty of peace.
"In violation of this treaty, the slaves and other property of
American citizens were carried away in the year 1815, and INTEREST.
37
have been detained from them ever since. They have thus
lost the use of this property for eleven years. Is the meagre
return of the average value, at the time the slaves and property were thus taken from them, a just indemnification of the
whole wrong ? That the act of taking away the property was
a wrong, is no longer a question. Whatever disposition there
may be to make it a question, it has been settled by the tribunal of the party's own choice, and can no longer be made a
question. The first act of dispossession being thus established
10 to be a wrong, is the continuance of that dispossession for eleven
years no wrong at all? Is it consistent with that usage of
nations which Sir John Nicholl recognizes, to redress an act of
wrongful violence by the return, at any distance of time, of the
naked value of the article at the date of the injury ?
In the case of Ekins vs. East India Company, it was decided
that interest should be allowed for a ship's cargo taken by the
defendant; and this being done in the Indies, Indian interest
was allowed, (about 12 per cent,) deducting the charge of
return from the Indies.
20     If was objected :
1. That the value of the ship and cargo being uncertain, it ,?eere Wii-
. . „ barn's Reports
could not, in the nature of it, carry interest, but from the time vol. I, pages
it was ascertained by the jury.
2. That the plaintiff had, at this time, rested thirteen
years upon his own bill, and therefore to allow him Indian
interest would be to make him a gainer by his own delay.
But the court decided:
" If a man has my money by way of loan, he ought to answer
interest; but if he detains my money from me wrongfully, he
gQ ought, a fortiori, to answer interest. And it is still stronger
where one by wrong takes from me either my money or my
goods which I am trading with, in order to turn them into
money.
I Therefore, let the defendants pay interest; and this being
transacted in the Indies, where the person who acted by authority under them, and for their use, must be presumed to have
made the common advantage that money yields there, the
company must answer the interest of that country."
This case was affirmed on appeal to the House of Lords.
Referring to interest
395-6.
40
2, Brown's
Pariiamenta-
Mr. Davies in his introduction to his ry Cases,
p. 382.
notes on treaties says :—
"According to the usage of nations it is a necessary part of Intro. Note
a just national indemnification." Davies.'
Notes on
Treaties, page
20.
Applying to the present case the principle underlying the
above quoted authorities that interest is due as an element of
indemnity, it follows that such interest must be calculated at
the current rate at the place where the injury was committed
to make the indemnity complete.
The principle is the more applicable in cases where private
50 individuals have been injured by a nation, they having no
means of pressing their claims. (f< g £<ju^ 6?-
IS   GREAT   BRITAIN'S   CLAIM   AFFECTED   BY
CITIZENS OF THE UNITED STATES HAVING
AN INTEREST IN ANY OF THE VESSELS ?
Attention has already been drawn to the varying grounds
upon which the United States defended their seizure of the
vessels in question.
The United States did not until after the signing of the
Treaty of February, 1892, either directly or indirectly, throughout their long diplomatic correspondence with Great Britain'
or otherwise, refer to the fact of any of the vessels seized 10
being owned by its citizens as affecting its responsibility.
In presenting their case at Paris, they treated and designated the vessels seized or interfered with, as British vessels.
and made no submission involving the question now under
consideration, although as early as 1889 they were in possession of the facts upon which at a later date they based their
contention that citizens of the United States were interested
as owners in some of the vessels.'
It cannot, therefore, be presumed that at the time of the
Treaty of 1892 the question was in the minds of its framers, 20
or that the words " its citizens " which formed part of Article
8 of said treaty had been intentionally used, as was contended
by Mr. Blodgett in his argument at Paris.
Great Britain in the negotiations which followed the Award
was careful to close the door to any such argument as that
tfc£fclAMr~<-s9-8-'
the Claims Convention.
The following despatch shows how this change occurred in
ouv^-<LA-*the drafting of the Convention
Mr. GRESHAM TO SIR JULIAN PAUNCEFOTE.
\Ai Zft a\^J  ^aJ  u>
Mjru^rl.   ,4-aJJaJv^   Msi^jjUa/    \/§^s£C4^.
^ y £ WuiO     VOI1. *y .1.14. J.     by     \Ji.\J^\j      UXJ.W     \A-\J\JJ.      V\J     c*u.J     DUVU   MilguliJ^LlI;   OIO    VI
\^^x^l/V/v*^   f   vvr^^ ^~o ,\   .     ^above referred to, and insisted on other words being used
'Ax^&l a- <*y^^< ■** a^        /f~*** ~ST,a iHH MIIHMi
o\yi     H^yxJtCiJ^    cu^ei. ffio (LAj^^^ss^ny <rff
. '(ATM    AJL^oJ?/^
QAjdJU^-   <^-^AN(yy\A-s^1     ~fc  ^6^f[   A^ asq
in
30
sl/U
K/*~ \s>
fr*
% ftcnl*, vyv;
" Department op State,
"Washington, August 16, 1894.
" Dear Sir Julian:—I have your note of the 15th instant in
relation to the proposed convention for the settlement of the
Behring Sea claims.
"Referring to the doubts raised by Her Majesty's Government as to the restrictive effect of the words ' British subjects,'
in the fourth recital of Article I. of my counter draft, you
state that you mentioned to Lord Kimberley I had given you
the assurance that the Government of the United States 40
' desired to satisfy all claims, the payment of which were justly
lAj^^r due by international law;' and you then say that you have
received a reply from His Lordship 'to the effect that Her
Majesty's Government take note of that assurance and waive
their objection to the words in question.'
" While I am not of the opinion that the language of your
note is ambiguous, it is perhaps advisable, in order to avoid
any possible misunderstanding hereafter, to say that in referring to international law, it was not my intention either to
38 Wvt
m
4-juw    «x7 V^X^   A /^   Z^JaM}, ja^JU^^I /y£jn* W&,   A^MjiJ> t#k^ ^sul^J^^
^\nff*tarw ^J^£\^^U^dru        ' &*tiffi.£*,Wtf   /%?£*LAASV U^X   A^*JC<>Vk
but it was my intention to convey the idea that the commis-^^ N^.£kfv^J^>  a^r %> AtXlA-AJ? <rr~
sioners would, in considering its terms, be governed by the &c% ^-..-AfltXf (K^Lty^/ /^
principles of international law.    Such I understand to be your <^e-£^e^ /« /&/0\
interpretation of my meaning, as expressed in your note; but/^^
enlarge or restrict the language of the proposed Convention;
out of abundant caution I desire to avoid any possible ground j
for the inference that anything may have been said by me"
1-p
with the intention of modifying or controlling the Convention v^   ■***^K^fy(Zps^eK_p
by assurances given outside of it. ^°*" o(x^<^k^- /v\jl*^<\xJv   wLf
" If convenient to you, I shall be pleased to meet you Sit-^-^^^-TA-Z^^Xj^ ^>
this department at 11 o'clock a.m. to-morrow, for the purpose A^Jz<n^o ^C o-t/kv ^tu^rtrx^/ ^^^^c/ZoL
10 of signing the Convention. ^g^^^^^^t p<^~Ju%
" z remaiD' etc-' ^X^Jdn^ ^  fc^ ^Ztl
A    . ,    T     _    _       n W' Q' ™^" jfft^ ^f^ftf /^£
Article I. of the Claims Convention now reads as follows:— fL m  ft,    t: a*? k<4<-gG £&?(-  ^C   Anyu^
" Article I. The high  contracting parties agree that all /^t aU
claims on account of injuries sustained by persons in whos •
behalf Great Britain is entitled to claim compensation from
the United States." etc., etc.
Article 3 contains the provision that " the government of
the United States shall have the right to raise the question of
20 its liability before the Commissioners in any case where it
shall be proved that the vessel was wholly or in part the
actual property of a citizen of the United States."
No allusion it will be noticed is made to the interest which
any United States citizen may have in the result of the voyage
or in the cargoes. The inquiry of the Commissioners is clearly
limited to the consideration of the ownership of the vessels.
The position of Her Majesty's Government from the incep
tion of this controversy, has been to hold the United States
liable for all the damage done by their authority to vessels on
the high seas, which were carrying the British flag and duly
"" documented. And it is submitted that under no principle
known to the Law of Nations, can it be open to the United
States in time of peace to go behind the flag or register.
It will be observed that if on the one hand the United
States reserved the right to raise the question of such ownership, Great Britain on the other hand, although consenting
that the question might be raised, did not at any time admit
that the consequences claimed by. the United States would
follow from the proof of the facts alleged.
What then is the protection afforded by the national flag to
a ship on the high seas in times of peace ?
When Great Britain urged the mutual concession of right
of search to ascertain if a suspected vessel was engaged in the
slave trade, the United States refused to assent. Referring to
the Treaty of Washington, 1842, Woolsey observes: " The
United States admit of no right of search of vessels sustaining
their national character. If then a British cruiser boards a
50 vessel of the United States whose papers are right no search
can be made notwithstanding the most flagrant suspicion."
President Tyler's message, February 27, 1843 (Wharton,
par. 327, p. 134) contains the following sentence : " Denying
as we do all colour of right to exercise any such general police
over the flags of independent nations."
40
Mj,   xf^Xy^/  of /VC     fffef /Usi£~~ <^g^/
/
////
It
%w'J/(*M^ &U
hp Sn
fl 40
united states owneeship.
Works of
Daniel We
ter. Vol. 6,
page 330.
Ibid 334.
Ibid 337
,       In 1843, Mr. Webster, writing to the President on February
26th, says :—
I That the British Government made no pretension to interfere
in any manner whatever, either by detention, visit, or search,
with vessels of the United States, known or believed to be
such; but that it still maintained, and would exercise when
necessary, its own right to ascertain the genuineness of any
flag which a suspected vessel might bear ; that if, in the
exercise of this right, either from involuntary erroiy\>r in spite
of every precaution, loss or injury should be sustained, a prompt iq
reparation would be afforded ; but that it should entertain,,
for a single instant, the notion of abandoning the right itself,
would be quite impossible."
In his despatch to Mr. Everett, March 28th, 1843, he says :—
" Lord Aberdeen, in his note to you of the 20th December,
says : ' The undersigned again renounces, as he has already
done in the most explicit terms, any right on the part of the
British Government to search American vessels in time of
peace. The right of search, except when specially conceded by
treaty, is a pure belligerent right, and can have no existence 20
on the high seas during peace. The undersigned apprehends,
however, that the right of search is not confined to the
verification of the nationality of the vessel, but also extends to
the object of the voyage and the nature of the cargo. The
sole purpose of the British cruisers is to ascertain whether the
vessels they meet with are really American or not.'"
And again :
" Nor can the United States Government agree that the
term 'right' is justly applied to such exercise of power as the
British Government thinks it indispensable to maintain in 30
certain cases. The right asserted is a right to ascertain
whether a merchant vessel is justly entitled to the protection of
the flag which she may happen to have hoisted, such vessel
being in circumstances which render her liable to the suspicion,
first, that she is not entitled to the protection of the flag; and,
secondly, that if not entitled to it, she is, either by the law of
England an English vessel, or, by the provisions of treaties
with certain European powers, subject to the supervision and
Ibid 339.
search of British cruisers
i
^
*
" If visit, or visitation, be not accompanied by search, it a.q
might well be, in most cases merely idle. A sight of papers
may be demanded, and papers may be produced. But it is
known that slave traders carry false papers and different sets
of papers. A search for other papers, then, must be made
where suspicion justifies it, or else the whole proceeding
would be nugatory. In suspicious cases the language and
general appearance of the crew are among the means of
ascertaining the national character of the vessel. The cargo
on board, also indicates the country from which she comes.
Her log-book showing the previous course and events of her 50
voyage, her internal fitment and equipment, are all evidences
for her or against her, on her allegation of character. These
matters, it is obvious, can only be ascertained by rigorous
search.
" It may be asked, if a vessel may not be called to show
her papers why does she carry papers ? No doubt she may be
called upon to show her papers; but the question is where,
when, and by whom ? Not in time of peace, on the high seas,
where her rights are equal to the rights of any other vessel,
and where none has a right to molest her.    The use of her UNITED  STATES OWNERSHIP.
41
papers is, in time of war, to prove her neutrality when visited
by belligerent cruisers, and in both peace and war to show her
national character and the lawfulness of her voyage in those
ports of other countries to which she may proceed for purposes
of trade."
And further on :
" At the same time, the government of the United States Works of
fully admits that its flag can give no immunity to pirates, nor ^n v0n5ebs"
to any other than to regularly documented American vessels." page 341'.
10     Mr. Cass, United States Secretary of State, says, writing to
Mr. Dallas, in 1859 :—
" This country is desirous of the extinction of the slave
trade, and is employing a larger force for that purpose in proportion to its naval means than any other power whatever.
But it has other great interests upon the ocean—the immunity
of its flag, the protection of its citizens, and the security of its
commerce—which it does not intend to put to hazard by permitting the exercise of any foreign jurisdiction over its merchant vessels ".
20     Woolsey in his work on International Law says in reference
to the above :—
I This discussion took place between 1841 and 1843.   Since Woolsey in-
then, in 1858, the British Government having stationed cruisers i*?™**10^1
near Cuba, for the purpose of preventing the slave trade with 382.
that Island, certain American vessels were visited on suspicion,
and loud complaints arose.    The Senate of the United States, j±
thereupon, passed the following resolution: That American
vessels on the high seas in the time of peace, bearing the American
flag, remain under the jurisdiction ofthe country to which they
30 belong; and therefore, any visitation, molestation, or detention
of such vessel by force, or by the exhibition of force, on the part
of a foreign power is in derogation of the sovereignty of the
United States.
tLsis
U
U>:/*
i<>
/J-A^aA~e>
o<
yic &jl*i/C'
" From the explanations which have since taken place it does
not appear that the British Government was disposed to deny
the right which this resolution implies. Knowing and
believing slavers to have an American nationality, it has, at
least since 1842, disclaimed the right to detain them, and /O / /t
40 finding them to be American, upon examination of their f\*;6i/hJ *u^* «^^^-
papers it admits that it cannot search them without a violation
of international law."
fryivfrvU* d   &   &f^e
a*~-
It will be observed that in these negotiations, and in the
correspondence relating to the subject, Great Britain did not
attempt to claim more than permission, in case of suspicious
circumstances, to visit a vessel flying the United States flag
taking the risk of searching the vessel without, at the same
time, claiming to be absolved from liability should the vessel's
papers be genuine, and her nationality be thereby established.
/ $X?~
/?, V^V
b s—6
R f
42
UNITED STATES OWNERSHIP.
•* is
j»i t--
Sen. Ex. Doc.
No. 67, 53
congress, 3
sess. p. 26.
[bid p. 41.
President Grant, in his message, 1873, referring to the
" Virginius " said:—
" When, therefore, she left the port of Kingston, in October
last, under the flag of the United States, she would appear to
have had, as against all powers except the United States, the
right to fly that flag, and to claim its protection, as enjoyed by
all regularly documented vessels registered as part of our commercial marine. \
" No state of war existed, conferring upon a maritime power
the right to molest and detain upon the high seas a docu-10
mented vessel; and it cannot be pretended that the ' Virginius'
had placed herself without the pale of all law by acts of piracy
against the human race.
"H her papers were irregular or fraudulent, the offence was
one against the laws of the United States, justifiable only in
their tribunals."
Jt was only because of the particular words of the agreement between Spain and the United States that the registration of the " Virginius " was declared fraudulent. The United
States Attorney General expressly stated in giving his opinion 20
that if it was not for the terms of the agreement referred to
the fraudulent registration would have been no ground for
seizure.
The opinion of the Attorney General of the United States
in that case is found in Ex. Doc, No. 30, H. R., vol. 8, 1875-
74, p. 208.
In the very year of the first seizures, in Behring Sea, Mr.
Bayard, United States Secretary of State wrote to the BiaSaE
Ambassador in the case of the | L. M. Merritt" (a United
States ship) as follows:—" By the Law of Nations as it is 30
understood in this department, the citizens or subjects of a
particular country who are owners of a ship, are entitled to
carry on such ship, when at sea, the flag of such country;
and such flag is to be regarded by all foreign sovereigns as
the badge 01 nationality."
The Britisn Minister in connection with that case had called
attention to the inconvenience arising at British ports in the
cases of vessels owned by United States citizens but not registered as United States vessels.
The protection afforded by the flag, is involved in the corres- 40
pondence in 1891:—contained   in Vol. 5.  U.  S. pp.  776,
778, 827, 842, 902, 904, 906, 908, 909, 912.
After the award Mr. Carter, one of the counsel at Paris
for the United States Government, in discussing the regulations, wrote as follows:
"If it should turn out that the regulations have destroyed
the profits of pelagic sealing, or reduced them tos o low a
point as to afford little temptation for the Canadian and
American vessels to engage in it, their first resort will be to
seek the protection of another flag; and this may easily be 50
obtained unless all the Maritime Powerso hould be induced to
adopt and enforce the regulations."
Mr. Bayard wrote to Mr. Gresham November 1, 1893,
suggesting diplomatic correspondence with powers other than UNITED  STATES OWNERSHIP.
43
Great Britain "lest the use of their flags might be obtained
by the solicitation of fur-seal hunters from the United States or
Great Britain and her colonies."
See also the correspondence between Mr. Gresham and the Sen. Ex. Doc.
United States Minister at Tokio. ™%5Lcon"
The commander of the United States Navy in Behring and 50. '
Sea proposed in 1894 to issue the following instructions touching
the regulations in force respecting United States and English
vessels:—
10 " It is not to be believed that any friendly power would
permit its flag to be used as a cover for the further perpetration
of such wrongful acts."
* # # ^
" Should you fall in with a sealing vessel flying any flag other
than the American, or the English, or claiming to belong to
any other country, or producing papers in proof of such claim
i£ -i^ ^ ^ K'F'Jfc.
you will proceed to warn him not to seal anywhere within the
limits specified in the President's proclamation.
* # # ^
" Any such vessel, previously warned, found to have been
engaged in sealing within the limits referred to, whether he
20 has accepted a license or not, you will seize, &c, &c."
He quickly received orders to cancel such instructions :
I Revoke immediately your circular letter of May 28, No.
14.    Closely confine self to instructions from the department;
seize under the award only United States vessels and British
vessels.    Do not interfere with the vessels of other nation-        «...
ality if colours and papers are regular, &c, &c."
From the foregoing authorities it is abundantly clear that
the flag gives a national character to the ship, and that when
on the high seas in time of peace, all on board are as much
30 entitled to protection as if they were on the soil of the nation
whose flag is at the mast head and that the question as. to
whether foreigners shall be allowed to own registered vessels
of another nation and carry its flag is exclusively within the
province of that other nation and of its municipal laws.
**
The vessels in question were all duly documented as British
ships.
They were registered as British vessels and carried their
certificates of registry duly executed by competent authority.
The following is a succinct statement of the law relating to
40 British ships:—
" It may be convenient here to explain briefly what is meant
by the words ' registry' and ' clearance,' and what are the
duties of the officers empowered to register ships, and of the
officers of the customs in respect to granting clearances.
I jj Registry' signifies the recording, in a book kept for that
purpose, of the name of a ship which the owner desires to have
recognized as a British ship, together with certain particulars
composing a general description of the ship.
" The effect of registry is to entitle the ship to use the British
50 flag and to  assume the British national character.     The
conditions necessary for obtaining registry, in the case of a ship *i«
^
-j^>**^
♦*
Vt
^
1
A ffr*-*^
■1   /*t
44
UNITED  STATES OWNERSHIP.
not already registered, are the production to the Registrar of
a certificate by the builder, in a form prescribed by law, and of
a declaration (also in a prescribed form) that the ship is British
owned."
See Instructions to Registrars of Shipping, pp. 7, 12, 14, 15,
16, 17, 26 (1854-1880).
The registration of the vessel confers national character.
Honey v. Buchanan, 16 Peters, 215 Crispo v. Kelly,   16
Wallace, 623.
The "Lodonia," Crabbe, 271. The " Martha Washington,"
15 L. Rep. N. S. 22. 10
Nationality of private vessels is evidenced by flag and papers.
Hall. Int. Law, 1890, p. 161 and see Wharton, 409, already
quoted in discussing the subject of visit and search.
In the case of Catlett and Keith vs. The Pacific Insurance
Company (reported in 1 Paine's Circuit Court Reports, page
594), it is decided that the register only need be on board
during a period of universal peace in compliance with the
warranty of national character.
Judge Thompson states the question as follows: 20
" The next inquiry is, whether the assured have showan
compliance with the implied warranty in the policy, that the
' Sphinx' was an American vessel. That she was American
built, and owned by American citizens, is fully proved, so far
as parol proof may be admissible to establish the fact, that the
vessel was American property. The testimony of the captain
is full on this subject.
" But it is said that this warranty not only implies, that the
vessel was  American property, but that she was duly documented as such, so as to show her national character.    It was oq
intimated by one of the counsel, that other documents than the |
register were  necessary  for this purpose,  but it  was   not
distinctly pointed out what those documents were; and the
objection to this extent has not been urged by the  other
counsel.    And I understand it, therefore, to be conceded that
an American register, if on board, would have been a compliance with this warranty ; and I am not aware of any other
document that could have been required.   There being a state
of universal peace, and no treaty provisions applicable to the
voyage, the register was all that could be necessary to show 40
the national character of the ' Sphinx.'    No question of neutral
or belligerent rights could arise."
The certificates of registry and of ownership in times of
peace cannot be questioned or impeached by a foreign power.
No foreign power can be permitted to inquire into or determine their validity.
" A certificate under the authority of the United States
must be taken by foreign powers as genuine, and can be impeached by them only by application to the Government of the
United States. This has been held as to naturalization certi- en
ficates (supra, § 174 a); and the same principle, as was held
in the ' Virginius' case (supra, § 327),  applies to papers cer-
<£\'*7
\ UNITED  STATES OWNERSHIP.
45
tifying, under the authority of the United States, that the vessel
holding them is a vessel of the United States. If such papers
are fraudulent, the parties forging or wrongfully using them
are liable to punishment in the United States ; and the United
States will not permit them to be employed as a basis of a
claim against foreign powers. But the United States must be ^\ \ —
the sole judge of their validity, so far as concerns proceedings ^J^YrVOtrXt**
on the high seas. No foreign power can be permitted to determine as to such validity."    Supra, §§ 325 ff. —	
q. csV
10     The same principle is involved in the case of naturalization
certificates.
" While the decisions concerning the binding force of a
record of naturalization make it difficult to go behind the
record; at the same time, whenever the Government is called
upon for its interposition in a foreign state on behalf of any
person claiming to be a naturalized citizen, the question
whether, under all the facts presented by him, intervention
should be accorded is always open for consideration."
' Mr. Fish, Secretary of State, to Mr. Moran, Feb. 16, 1877.
MSS. Inst, Portugal.'
20 " It certainly is not competent for the Department of State,
either by itself or through its delegated authority in the commission (United States and Spanish Commission), to go behind
a judicial decision of a court of law, such as is a certificate of
naturalization."
' Mr. Evarts, Secretarv of State, to Mr. Durant, Mar. 7,
1879.    MSS. Dom. Let.'"
A certificate of naturalization as a citizen of the United
States cannot be impeached for fraud before any International
30 Commission.
Under an agreement in 1870-71 between the United States
and Spain, the Spanish Government was permitted in an
inquiry " to traverse the allegation of American citizenship
and thereupon competent and sufficient proof thereof will be
required."
Referring to the agreement, Mr. Blaine, in his despatch to
Mr. Hamlin, wrote that " it merely permits Spain to traverse
the fact of naturalization and does not permit her to go behind
the certificate of naturalization, and disprove the fact of the
40 five years residence."
Under the laws of England and consistently with the Law
of Nations, foreigners may be shareholders in a company owning British ships.
Regina v. Arnaud, 9 Q. B., 804.
No authority is required in support of the following propositions :—
A British ship may be hypothecated to a foreigner.
Foreigners may charter British ships.
Foreigners may hold a Bottomry Bond upon a British ship.
50     Foreigners may be mortgagees of British ships.
A mortgagee is not an owner.
" Except as far as may be necessary for making a mortgaged
ship or share available as a security for the mortgage debt,
/W, i, ftCa,
I xsua
46
UNITED STATES OWNERSHIP.
the mortgagee shall not by reason of the mortgage be deemed
the owner of the ship or share nor shall the mortgagor be
deemed to have ceased to be the owner thereof."—Kitchen v.
Irvine (18 -8). 28 L. J., Q. B. 46. Williams v. Allsop (1861)
30 L. J. Ch. 353.
I The mortgagee has no responsibility as owner." Webster's
works, Vol. 3, p. 148.   Speech, April, 1824, | The Tariff."
Even if the evidence showed which is not admitted, that
there was an attempt on the part of certain United States
citizens to use the names of British subjects as owners of ves-10
sels held for their benefit, such an attempt would ipso facto
render such vessel forfeit to the Crown of Great Britain.
The "Annandale," 2. P.D. 218.
"The Sceptre," (1876) 35 L. T. 429.
R. v. Seborg, L.R.I., C.C.R., 262.
The Merchants' Shipping Act, 1894 (a consolidation of
previous Acts), Sec. 69, provides for the forfeiture of the ship
for use of national flag, &c, when owned in whole or in part
by a person not qualified.
Special procedure is  found in Sec. 78 to enforce this for- 20
feiture:
| For the purpose of enforcing these statutory forfeitures,
any ship wholly or in part liable thereto may be seized and
detained by any commissioned officer on full pay in the military or naval service of Her Majesty, or any British officer of
Customs, or any British consular officer, and may be brought
by the same for adjudication before the Court of Admiralty in
England or Ireland, or any court having Admiralty jurisdiction
in Her Majesty's Dominions." 1
V
10
EFFECT OF DOMICILE ON NATIONALITY.
Reference has already been made to the reservation by the
United States in the Convention of the right to raise the question of its liability " in any case where it shall be proved that
the vessel was wholly or in part the actual property of a
citizen of the United States."
It has also been shown that in time of peace no other nation
but that whose register is used and flag carried is entitled to
go behind such flag or register.
It is further submitted that if there was any occasion to go
into the evidence adduced and received subject to objection, in
connection with the ownership of any of the vessels in question by citizens of the United States, such evidence would in
no way avail the United States or support their contention.
It appears that in the cases of the " Onward " and the
" Favourite " although the legal title to the schooners was
duly vested in British subjects, yet they had become the property of a commercial firm carrying on business in British
Columbia, and were operated as a part of the general trading
20 business of the partnership. One of the members of this firm
was Alexander McLean, a naturalized citizen of the United
States.
In the case of the " Black Diamond " No. 5, and the " Alfred
Adams" the title was in a British subject, but the vessels
were operated for the benefit of a trading firm at Victoria,
composed of the owner and one Alexander Frank, who was
a native born citizen of the United States.
In each of these cases the alleged United States citizens were
residents of, and were the holders of other property in the
30 province of British Columbia, and had been such for several
years prior to the seizures in question.
In the case of the " Pathfinder " the schooner was owned
by and registered in the name of a British subject, but one
Bechtel, who was a native born citizen of the United States,
had purchased a half interest in the profits of the sealing voyages of the vessel.
Bechtel was a man of family, residing at the city of Victoria,
which had been his home for many years, where he had also
acquired a large amount of real and personal property, and
40 where he was carrying -on the business of hotel-keeper, and
was engaged in other commercial operations of importance.
He became a naturalized British subject in 1892.
No mention need be made of the vessels in which it is alleged
that Boscowitz and Daniel McLean were interested, as it is
contended on behalf of Great Britain that no facts were given
in evidence which afford any ground for describing these persons as United States citizens.
47
A,*     *%tn c**sfu+    C^^c^
!
!
j 48 EFFECT OF DOMICILE  ON  NATIONALITY.
The question is, are the United States liable to pay compensation to Great Britain in respect of the indirect interest, if
any, which it may be decided was held in such vessels by the
persons above described ?
It is obvious that the wording of the Treaty has not settled
the point. The parties to the controversy have agreed that
the question may be raised. They have not, by the terms of
the Treaty, declared what consequences shall follow the proof
of the facts indicated above.
The proposition must, therefore, be determined by reference 10
to the principles of international law, and the usage prevailing
among nations under similar conditions.
The award of the Paris Tribunal has conclusively established that the injuries complained of were the result of an
illegal attempt on the part of the United States to enforce the
provisions of their municipal laws against vessels owned as
above, while they were navigating the high seas.
The facts, therefore, are that persons born or naturalized in
the United States, or commercial firms of which they were
members, domiciled and lawfully carrying on trade in British 20
dominions, have been deprived of property there held by them
as a consequence of the illegal action of the United States.
Further, the authorities previously cited at pp. 16-18 show that
the loss suffered by those persons has been occasioned through
the invasion by the United States Government of British
territory and the commission there of the wrongs complained
of.
Who then is entitled to claim compensation for the injuries
so inflicted?
International law recognizes States only in such a contro- 30
versy.    The injuries done to individuals under such circumstances are deemed to be aimed at the sovereignty of the nation
in which they reside and should be taken up and prosecuted
as a matter of national concern.
On this point in Wharton's International Law Digest the
following occurs:—
Wharton's In- " The claims presented to the French Commission are not
LawaD?gest, private claimb but governmental claims, growing out of inju-
2nd Ed. Sec. ries to private citizens or their property, inflicted by the
quoting Presi- Government against which they are presented. As between 40
dent Arthur's the United States and the citizen, the claim may in some sense
message"1"*1 be regarded as private, but when the claim is taken up and
pressed diplomatically, it is as against the foreign Government
a national claim.
"Over such claims the prosecuting Government has full
control; it may, as a matter of pure right, refuse to present
them at all; it may surrender them or compromise them
without consulting the claimants. Several instances where
this has been done will occur to you, notably the case of the
so-called ' French spoliation claims.' The rights of the citizen 50
for diplomatic redress are as against his own not the foreign
Government. For the claims within its jurisdiction the commission stands in the place of the diplomatic departments of
I i EFFECT OF DOMICILE ON NATIONALITY. 49
the two countries, and the respective agents and counsel represent, not the claimants, but their respective Governments.
*        *        ■* The commission is not a judicial tribunal
adjudging private rights, but an international tribunal adjudging national rights."
By a treaty between the Queen of Great Britain and the
Emperor of China, the Emperor agreed to pay the British
Government the sum of $3,000,000, on account of debts due to
British subjects from certain Chinese merchants who had
10 become insolvent, being largely indebted to British merchants.
The money having been received by the British Government, a
petition of right was filed by one of the persons on whose behalf
a claim had been made, and in discussing the position which
the sovereign occupies in negotiations such as that which
resulted in the payment of the indemnity, Cockburn, Chief
Justice, said:—
" The notion that the Queen of this country, in receiving a Rustomjee. vs.
sum of money in order to do iustice to some of her subiects, to 5h^ Queen 1
t .    .        . iii-ii i i y.Jbs.JL). at p.
whom injustice would otherwise be done, becomes the agent 492.
20 of those subjects, seems to me really too wild a notion to require
a single word of observation beyond that of emphatically condemning it."
Blackburn, J., says:—
" I certainly am not aware of any authority whatever in the ibid p. 493.
English law that has ever put the Sovereign in such a position
when exercising an act as the body politic,—" To use the old
phrase, " the sovereign in the capacity of the body politic
exercising an act of prerogative." To say that the Queen was
the agent of any person seems to me to be utterly unfounded
30 upon any authority whatever. There are plenty of old cases
upon which the dignity of the Crown is exaggerated beyond
measure. This has been carried to such an extent that I should
certainly pause or hesitate whether I would follow it at the
present date to the full extent: but to bring down Her Majesty
to the situation of it being said of her that in making a treaty
of peace with the Emperor of China, she was an agent for
everybody who had a claim against the Emperor of China is
totally without authority."
It would seem, therefore, that in every case like the present,
40 the claims should, and can only be made through the medium
of the sovereign in whose territory the injury has arisen, and
in accordance with the terms of the Convention under which
this Commission sits, should be presented by Great Britain on
behalf of persons for whom that nation is entitled to claim
compensation; that is on behalf of those who as of right may
claim her protection over their persons and property.
In considering what persons may claim this protection in
the premises,  reference should be made to a well  settled
principle of international  law, viz.: that, by reason  of his
50 domicile, an alien  acquires the quality of a subject of the
country in which he makes his home.
Walker, in his book on the Science of International Law,
speaking upon this point says :—
" So much for the geographical boundaries of a state.    What
of the personal definition of the state people ?   The inhabitants
bs—7 R
m 50
EFFECT OF DOMICILE ON NATIONALITY.
Vattel, Book
2, ch. 8. sec.
104.
of a country at any time may comprise four classes of individuals. There are citizens, and these either by birth (subditi
nati) or by naturalization (subditi dati) : there may be denizens,
being foreigners resident in the country and enjoying special
privileges by grant of the territorial sovereign, albeit not
raised to the status of full citizens ; there may be domiciled
aliens, being foreigners resident in the country, and resident
with an intention of more or less permanent stay, and there
may be mere casual visitors.
" But members of all these classes, however differentiated by iq
municipal regulation, are in view of international law alike, in
general, subjects of the state government so long as they
maintain their local position.
1 The rule fixing citizenship upon any individual, the rule,
that is, ascribing nationality, is matter for Municipal law. In
international law locality, not nationality, is the all important
test of character."
Again, the implied obligation of obedience to the laws of
the country of his domicile, devolving upon an alien by reason
of his residence, casts upon that nation the correlative duty of 20
protection in every case in which the rights of such foreigner
are invaded or his property destroyed by the wrongful acts of
any other state.
" The sovereign ought not to errant an entrance into his state
for the purpose of drawing foreigners into a snare ; as soon as
he admits them, he engages to protect them as his own subjects,
and to afford them perfect security as far as depends on him.
Accordingly, we see that every sovereign who has given an
asylum to a foreigner, considers himself no less offended by an
injury done to the latter, than he would be by an act of violence 30
committed on his ov\n subject."
Commenting   on   the   above  quotation   in   Worth   Case»
Rayner, J., says:—
U.S. Sen. Ex.
Doc. 21-46, 2
sess, 44 cong.
p. 38.
" This principle of international law is recognized as a part
of the municipal law of England and of the United States.
The English courts have decided, again and again, that not
only is a foreigner resident in England entitled to the protection
of her laws to his person and property; but even in the case
of an alien enemy, if he quietly and peaceably obeys her laws
and performs the duties required of him, he his not only 40
entitled to the protection of her laws in sueing for his rights in
her courts, but he his entitled to protection to his person, even
as against the land, of his nativity."
It is true that in the distribution of the fund awarded by
the Geneva arbitration, the claims of British subjects were
not considered proper matters for compensation, but this
decision was arrived at with great doubt, and the reasons on
which it is based give force and emphasis to the considerations
above set forth.
It was there stated that in the Alabama case, Great Britain 50
was not charged with any act of hostility to the United States,
but with culpable negligence, in that she had not enforced the
provisions of her own municipal laws against her own subjects
in her own territory. The Court of Claims, therefore, without
attempting to apply any principle of international law to the EFFECT OF DOMICILE ON NATIONALITY. 51
facts before them held that the theory of the convention under
which the award was made, demanded that under the peculiar
circumstances of the case, Great Britain should not be called
upon to compensate her own subjects, though at the same
time it was stated as an incontrovertible proposition that that
power would be bound to indemnify her owu citizens resident
in the United States, if the damage had been the result of an
act of direct hostility against that nation.
Discussing the subject in the case of Lord vs. the United
10 States, Rayner J., said :—
#    #   #    " And if the conflict had been directly between u.s. Sen. Ex.
Great Britain and the  United States, and there had been an Doc-1|'46>2
intent on the part of Great Britain to harm or in any way to jm'i.   C°ng'
wrong them while under our protection, all the authorities
would go to prove that our Government would be bound to
defend and protect them in their rights, even against their
own Government.    Our complaint against Great Britain was
not that she had directly or intentionally wronged our Government or its citizens, but that wrong had been done through
20 her neglect to observe her neutral obligations."
Then, after reviewing the negotiations which preceded the
Convention and concluding that the proceedings at Geneva
negatived the idea of the payment of compensation to British
subjects, he proceeds :—
" If Great Britain supposed, as seems to have been the case, ibid p. 41.
that in paying this money it was to indemnify those who had
been injured by her failure to execute her own municipal laws,
would she not regard any action on our part in indemnifying
her own subjects for her neglect as inconsistent with the ob-
30 jects and purposes for which she agreed to the arbitration in
the first place, and to the payment of the money in the second
place ; And while we might be bound to indemnify a British
subject entitled to our protection who had suffered, a direct positive wrong from his own government, are we bound to indemnify
him for a loss consequent upon the failure of his government
to do her duty as to the conduct of her own subjects ? Suppose it had been proposed at Geneva to hold the British Government responsible for losses sustained by her own subjects
because of failure to execute her own laws, would she not
40 have promptly replied, ' That is my own affair; I am fully
competent to take care of my own subjects. Whilst you
may hold me accountable for a direct injury done even to my own
subjects while under your protection, you have no right to hold
me accountable for a wrong done to myself or to my own subjects in a failure to execute my own municipal law.''
The following authorities may be referred to as further
illustrations of the general rule to be applied in cases like the
present.
In this case the ship was  claimed by  Mr. Johnson  as  an The " Indian
. . . T   A ,, Chief   3 Rob-
50 American subject. He was born m America. Lett tbat coun- icon's admir-
try in 1771 and settled in England in 1773. During the Ame-alty K p-12-
rican War of 1778, he left England and settled in France but
returned to England in 1785. He continued there carrying on
business as a merchant till 1797. In the year 1790 he acted
as an American Consul in England. In considering whether
or not he was to be deemed an American or British subject,
JI iT
52
EFFECT  OF DOMICILE  ON  NATIONALITY.
Sir William Scott, after deciding that he had not lost the benefit of his native American character proceeds:—
"He came from  America  to  this country
in
1773  and
engaged in trade and has resided in this country till 1797.
'£>"&
The President
5 Robinson's
admiralty.
R. p. 126.
During that time he was undoubtedly to be considered as an
English trader for no position is more established than this
that if a person goes into another country and engages in trade
and resides there he is by the law of nations to be considered
as a merchant of that country. I should therefore have no
doubt in pronouncing that Mr. Johnson is to be considered as 10
a merchant of this country at the time of the sailing of this
vessel on her outward voyage."
England and Holland were at war and the Cape of Good
Hope was in the possession of Holland. The ship was taken
on a voyage from the Cape to Europe and was claimed
by Mr. Elmslie as an American citizen residing at the
Cape. It appeared that he was a British born subject but had
lived in America and had gone to the Cape during a former
war and while the British had possession of it. He continued
to reside there after it fell into the hands of Holland and it 20
4 Robinson
107.
1 Haggard's
admiralty R.
at p. 103.
was during the last residence the vessel was seized.
liam Scott said :—
Sir Wil-
" The court must I think surrender every principle on which
it has acted in considering the question of national character if
it was to restore this vessel. The claimant is described to
have been for many years settled at the Cape with an established house and trade and as a merchant of that place and
must be taken as a subject of the enemy's country.
"See also the case of the 'Anna Katherina'."
In the case of the "Matchless," Lord Stowell said :— 30
" Mr. Millidge is a British born subject, but at present residing at Boston. He is described by the judge as residing
with his family there and he appears in this transaction as exporting goods thence.
" # # # A question then arises of great moment regarding as well the interests of a state as the interests of its subjects.
Is such a person to be considered as a merchant of Great Britain
or a merchant of America? Upon such a question it has certainly been laid down by accredited writers on general law and
upon grounds apparently not unreasonable, that if a merchant
expatriates himself as a merchant to carry on the trade of
another country, exporting its produce, paying its taxes, employ- 40
ing its people and expending his spirit, his industry and his
capital in its service, he is to be deemed a merchant of
that country. He may in some respects be less favoured in
that country than one of its native subjects. Our own country
which is charged with holding the doctrine of unextinguish-
able alien allegiance more tenaciously than others is no stranger
to the application, of this rule. Its highest tribunals which
adjudicate the national character of property taken in war,
apply it universally. They privilege persons residing in a 50
• neutral country to trade as freely with the1 enemies of Great
Britain in war as the native subject of a neutral country, although our own resident merchants cannot, without the special
permission of the Crown, and they confiscate the property of
an English subject resident in an enemy's country as freely as
that of the native subject." EFFECT  OF DOMICILE ON NATIONALITY.
53
In Drummond's case 2 Knapp, P. C. 295, it was decided
that a person who possesses the characters both of a French
subject under the municipal law of France, and of a British
subject under the Statutes of England, as the grandson of a
natural born British subject, although both he, himself and his
father were born in a foreign country, was not entitled to claim
compensation for a loss he had sustained from a confiscation
of his property by the French Government under a treaty
between Great Britain and France, giving compensation for
10 such a loss to British subjects. The point to be decided was
stated by Lushington, counsel for the appellents, as follows :—
" Lst, the actual undue confiscation or detention of the property by the French Government;
" 2dly, the fact of the owner of it having been a British
subject."
And further on he states that by the English Statute the
claimant was " to all intents, constructions and purposes what
soever " a British subject.
In the argument for the Crown the following occurs :—
£0 " When, therefore, a treaty speaks of the subjects of any
nation, it must mean those who are actually and effectually under
its rule and government, not those, who although living out of
its dominions, and never having been subject to its government,
it may choose to designate its subjects in its own municipal
laws and statutes. It never could have been the intention of
the framers of this treaty that the expression ' British subjects'
should include persons who were also French subjects " ^ ^
I for there is no doctrine better established in them than that
the duties of allegiance and the right to protection are inse-
30 parable, and the subject who is entitled to the latter is also
bound to render the former."
The "Vice-Chancellor, says :—" The treaty between England
and France meant to provide an indemnity to all British
subjects for their losses, occasioned by the illegal acts of the
French Government. The Commissioners, by their award,
seem to consider that James Lewis Drummond was not a
British subject." " In this," the judge proceeds to say, " they
were in error," and then goes on " But though formally and
literally, by the law of Great Britain, he was a British subject,
40 the question is, whether he was a British subject within the
meaning of the treaty. He might be a British subject and
might also be a French subject."
Further on, he says :—
" Their Lordships are therefore of opinion that although
James Lewis Drummond was technically a British subject in
the years 1792 and 1794, yet he was also,.at the same time, in
form, and in substance, a French subject, domiciled in France,
with all the marks and attributes of French character. He
and his family had resided in France for more than a century ;
50 and the act of violence that was done towards him was done
by the French Government in the exercise of its municipal
authority over its own subjects."
Against this judgment six of the most eminent French
lawyers prepared an elaborate opinion on the ground  that,
II 54
EFFECT OF DOMICILE  ON NATIONALITY.
7 Cranch,
p. 506.
according to the law of France, Drummond was not a French
subject, and they sent it to the Lords of the Treasury praying
that the case might be again referred to the Judicial Com-
mittee in order that it might be reconsidered. These opinions
were duly laid before the Judicial Committee, and the answer
received contained the following [—" and that the Lords of
the said Committee are of opinion that the case of memorialists
should not be reheard, because, admitting the correctness
of the statement of the French law by the above mentioned
advocates, they are satisfied upon the facts that James Lewis 10
Drummond, and James Drummond his father, did sufficiently
indicate by their conduct their intention to accept the character
of French subjects."
In the Countess De Conway's case it was decided that a
foreigner domiciled in Great Britain is, under the treaty
referred to in Drummond's case, entitled to claim compensation
for his losses.
Judgment was given at page 367, and it contains the followin
clause :—
" And in order to bring it within the principle of Andre's 20
case, it must be shown that she was a British subject in some
sense, within the interval between January and April, 1793."
And further on :—
" One of these two things must be shown, either that the
Countess was a natural born British subject, or that having
been born abroad, she was domiciled in England, and in that
character entitled to the protection of a British subject at the
time of the confiscation."
The judgment proceeds to disallow the claim on the ground
that neither of these two facts had been proved, and concludes :— 30
" If the claimants had put their case upon the ground that
the Countess was entitled to compensation under the treaty, as
being a British subject by residence in England, although not
a natural-born British subject, evidence to that effect ought to
have been laid before the commissioners."
In the case of Livingston vs. the Maryland Insurance Com-
pany, where the question was as to whether a. Spanish subject
coming to the United States in time of peace between Great
Britain and Spain and continuing to reside thereafter the beginning of hostilities, was to be considered an American or a Spanish 40
merchant.    Story, J., in delivering judgment says :—
" It is clear by the law of nations, that the national character
of a person, for commercial purposes, depends upon his
domicile.    %    ^    ^
" But whenever a person is bona fide domiciled in a particular
country the character of the country irresistibly attaches to
him. The rule has been applied with equal impartiality in
favour and against neutrals and belligerents. It is perfectly
immaterial what is the trade in which the party, is engaged or
whether he be engaged in any. If he be settled bona fide in a 50
country with the intention of definite residence he is as to all
foreign countries to be deemed a subject of that country." EFFECT OF DOMICILE ON NATIONALITY.
In the case of the " Venus " it is decided:
55
"That if a citizen of the United States establishes his
domicile in a foreign country, between which and the United
States hostilities afterwards break out, any property shipped
by such citizen before the knowledge of the war and captured
by an American cruiser after the declaration of war must be
condemned as a lawful prize.
After discussing the law of domicile as applied to aliens
Washington J., who delivered the judgment of the Supreme
10 Court, says:—
I The property of such persons equally with that of the native
subjects in their totality is to be considered as the goods of the
nation in regard to other states. It belongs in some sort to the
State from the right which she has over the goods of the
citizens which make a part of the sum total of its rights and
augment its power."
'laiK'li.
253.
It is contended, therefore, that in the circumstances shown,
the term " Citizen of the United States " can as between Great
Britain and the United States be applied to the persons in
20 question only in a very limited and qualified sense. They
would doubtless be so styled if they had returned to that
country and had there taken up a permanent abode at or prior
to the time when the injuries were inflicted ; but inasmuch as
they were then domiciled on British soil they are to be
regarded as the subjects of Great Britain in every case in
which the principles of international law are to be applied to
a controversy arising between that nation and any other state-
In this connection it is not necessary to regard any contention based on the laws relating to naturalization. Such
30 enactments are municipal in their character. They are
generally the outcome of special treaty provisions, and are
designed to add certain political rights and certain local privileges to a citizenship, which has been already established by
the accepted doctrines of international usage.
I The only effect of the naturalization acts is to confer the
benefits of naturalization in Great Britain on those who come
there and avail themselves of them.
" In international law, locality not nationality is the all important test of character."
J CLAIMS PRESENTED ON ACCOUNT OF PERSONAL
HARDSHIP SUFFERED BY THE CREWS OF
THE SEIZED VESSELS.
Great Britain claims that there should be allowed in each
c£.se a sum sufficient to compensate each member of the crew
for personal hardship suffered by him in consequence of the
seizure, this sum being in addition to damages sustained by
reason of the breaking up of the voyage. It was contended at
the hearing that the fact that certain claims for damages for
illegal arrest and imprisonment of the masters and mates of 10
some of the vessels had been specially mentioned raised a
presumption against the admission of any such claim on
behalf of other members of the crews. The answer to this
contention is that the claim of the masters and mates was of
a nature different from that of the other members of the
crews. They were formally arrested and imprisoned under
process of law which the other members of the crews were not.
Their claims were larger in amount and therefore as a matter
of convenience it was considered advisable to deal with them 20
separately, but it was not by this intended to waive the claim
of the crew for the personal hardships they endured, which
claim being in every respect fair and equitable, should especially
as between two great nations be considered a fit subject for
adequate compensation.
It is not proposed to deal here with the evidence proving
the particulars of the hardship suffered by the different members of the crews as this can more conveniently be referred to
when considering the case of each vessel separately.
It will uot be necesssary for the Commissioners to find
separately for each member of the crew under this head, it will 30
suffice if in the case of each vessel a lump sum is allowed sufficient to cover the claim arising for personal hardship suffered
by the crews.
56 THE CHARACTER AND EXTENT OF THE SEALING
GROUNDS IN BEHRING SEA.
The passages on the habits of the Alaskan seal as presented
in the Case of the United States at Paris at the following
pages are adopted for the purposes of this argument and as
being in the main correct.
At page 115 of the Case it is shown that after breeding on
the island the seals go many miles into the sea " from 100 to
200 from the rookeries." * * " They are caught all the
10 way from tweuty and one hundred and fifty miles from land."
Reference is made also to the " principal hunting ground 1 as
being one hundred miles from the Islands of St. George and
St. Paul.
" The course of sealing vessels and their daily catch show
also that the majority of the seals taken in Behring Sea are
secured at over one hundred miles from the Pribilov Islands."
Again, at page 209, it is shown that on these excursions
" they fall a prey to the pelagic hunter."    The case at page
210 refers to the evidence of an Indian who got 1,900 seals,
20 I all of which were captured in the sea close to Ounalaska."
Reference is made at page 322 of the United States Seal
Commissioner's report respecting the home of the fur seal.
At page 323 it is shown that being migratory animals they
follow " definite routes in migration."
At page 329 it is said the seals depart from the islands
about the middle of November.
Captain Hansen, a witness on behalf of Her Majesty, in his
cross-examination states that the Unimak Pass is the usual
passage of the seal herd ;  that it is the highway of the seals
30 into Behring Sea.
Charts from the United States case at Paris showing the
migration of seals and the position of the vessels when seized;
charts prepared by Professor Townsend for the United States
authorities showing the localities in which'pelagic sealing was
conducted in Behring Sea from 1883 to 1893, and charts indicating the courses of some of the schooners, were put in evidence. These charts establish the fact that the seals breeding
on the Pribilov Islands, scatter over the waters of the Pacific
for certain portions of the year and are found in a compara-
aq tively limited portion of Behring Sea during the months of
July, August and September chiefly to the south of the Pribilov Islands, between these Islands and the Aleutian chain
through the passes of which the seals enter and leave the
sea.
The Migration chart (contained in vol. III. of the United
States   case at Paris)  shows that the seals in July, August
bs—8 57 k
|
I
J 58 SEALING GROUNDS  IN BEHRING SEA.
and September of 1891 were observed by the patrol vessels of
the United States to have been mostly in the position above
referred to.
The Sealing chart shows seals reported and seen in 1891.
(Also in United States Case, vol. III.) It contains a circle drawn
around the Islands within a radius of about fifty miles. Inside
of this circle appear the words " seals within this area very
numerous."
Map of seizures 1886, 1887 and 1889 (in the United States
case, vol. III.) shows the locality of the seizures in the years 10
mentioned, and indicates that they were generally confined to
the grounds where seals are shown on the charts mentioned
above, as well as on chart No. 6 of the counter case hereinafter referred to.
The chart containing the cruise of the " Ellen," 1887 (United
States case, vol. III.) contains a plotting of the cruise of this sealing schooner, and shows the ground worked over was about 120
miles from the Aleutian Islands at the outside, and generally
between the Aleutian chain and the Pribilov Islands.
The chart ofthe cruise of the " Annie" in 1887 (United States 20
case, vol. III.), contains a plotting from the log and is almost the
same as that of the " Ellen."
The chart of the cruise of the " Alfred Adams" (United
States case, vol. III.) shows this vessel worked over the same
locality.
The chart of the " Ada" (United States case, vol. III.)
shows that in a comparatively short period, this sealing schooner,
working in the locality above referred to, took 1875 skins.
Chart No. 1 (counter case United States, vol. 7.) shows the
portion of Behring Sea which United  States and  British 30
cruisers patrolled when protecting the seal fishery under the
modus vivendi, between July 15th and August 15th, 1891.
Chart No. 3 indicates the cruises of the same vessels between
August 15th and September 15th, 1891.
From these charts it will appear that the cruising was
confined to a comparatively limited portion of Behring Sea
The patrol covering chiefly that part of the waters from the
Aleutian Passes to the Islands, and from the Islands southeast to the Alaskan Peninsula.
Chart No. 6 shows the position and number of seals observed 40
and reported on the patrol of the United States naval vessels
in July and August, 1892.
It will be seen that the track of these vessels detailed to
protect the seals was between the Alaskan chain and Pribilov
Islands, and nearly all of the cruisers were within 180 to 200
miles of the Islands of St. Paul and St. George. Upon this
chart also appear circles with a radius of about 50 miles about
the islands, inside of which are printed the words : " seals
within this area very numerous."
Chart No. 7 corrects the migration chart referred to in United 50
States Case upon  one point, only, namely, the position  of
female seals in the spring and summer months along the coast; SEALING GROUNDS IN  BEHRING SEA.
59
It sufficiently indicates, as well as the migration chart first
referred to, the comparatively limited space between the pass
of the Aleutian Islands and the Pribilov group in which seals
are found.
In the United States Case presented to the Paris Tribunal,
the following statement was made on behalf of that Government :—
" The herd spreads along the coast in a long irregular body, r 245,
generally advancing northward  until they begin   to  enter linel°-
10 Behring Sea in May or June, through the eastern passage of
the Aleutian Islands, seldom going west to the Four Mountain
Pass.    But the last of the herd do not leave the Pacific Ocean
until July.    The cows, however, are practically out  of the •
Pacific Ocean by the middle of June.    A chart showing this
migration has been prepared from the data contained in the
depositions herewith submitted."
Another map shows the location at different seasons of a
part ofthe catch of fur seals from 1883 to 1893, based on the
log entries of five vessels engaged in pelagic sealing.   This
20 map was prepared by C. II. Townsend, Assistant U.S.F.C. It
appears that the bulk of the seals were taken in July, August
and September. That they were taken chiefly between the
Pribilov Islands and the passes of the Aleutian chain, the
catches being south and south-east ofthe Pribilov group.
Another map shows the location at different seasons of the
catch of fur seals in 1894, based on the log entries of vessels
engaged in pelagic sealing. This map was also prepared by
Mr. Townsend. The bulk of these seals is shown to have been
taken in August and September.   The seals were captured mid-
gQ way between Unimak Pass and St. George Island from 50 to 60
miles of the Aleutian chain and from 50 to 60 miles of
Pribilov Islands.
Another map shows the location of the catch of fur seals in
1895, and is based on the log entries of vessels engaged in
pelagic sealing. This map was also prepared by Mr. Townsend.
The location of the sealing ground and of the catch of seals
agrees with the last map. Mr. Douglass, a pilot in the
revenue marine service of the United States for 7 years
preceding August, 1886, was called by the United States as a
An witness for the prosecutions at Sitka, in 1886. He testified as
follows :—
" I have been cruising for more than 15 years off and on in Sen. Ex. Doc.
Alaskan waters, always as an officer or pilot, and have visited10 ' p' •
the Pribilov Islands, St. Paul and St. George, several hundred
times, and am perfectly familiar with the sealing business as
conducted on those islands and understand the migrating
habits of the fur-seal. From about the first of May to about
the first of July each year the fur-seal is migrating north
through the Unimak and Akutan passes to these islands for
50 breeding purposes."
Mr. Alexander, an officer in the service of the United States
Government, called as a witness before the present commission,
testified as follows :—
Q. " And from your observation you have ascertained, so r. 484, line 4.
far as you were able to ascertain, that from year to year they 60
SEALING GROUNDS IN BEHRING SEA.
large quantities in July
and
Sen. Ex. Doc
106, p. 20.
R. 268,
lice 55.
R. 281.
R. 292.
line 20.
R. 293,
line 62.
R. 301,
line 18.
R. 307,
line 50.
remained in Behring Sea in
August ?
A. " That is the natural sealing ground during those months
in Behring Sea; there must be a large quantity of fish on
which they live in Behring Sea around the Pribilov Islands
at that time, they being fish eating animals.    #    ^=    ^=    #
The seizing officer of the " Corwin," in the case of the
" Carolena," establishes the fact that the sealing ground was
well known. When asked what he was doing in the line of
his duty on the 1st August, 1886, he said :— ■*■"
" Cruising in Behring Sea about seventy-five miles south-
southeast from St. George's Island."
This is where a good sealing ground is understood to be,
where the " Carolena " was actually caught sealing, and where
the United States cutters expected sealers to be hunting.
Witness Bragg, called on behalf of Her Majesty, respecting
the catch of the " Mary Ellen " in 1888 (fully discussed in
another place), gave evidence in reference to the part of the
sea he was sealing that year :
Q. " Give it to us generally ? *"
A. " Between 54° 30" and 35" north latitude and 168° to
169° 30 west longitude. I was always under the impression
that that was the latitude and longitude we were hunting in.
We had been up, I understand, on board the vessel, to the
north-east of St. George.
Q. " When were you up there ?
A. "When we first entered the sea.
Q. "And then you worked in which direction?
A. " To the southward."
Captain Warren, one of the pioneer sealers, gives the lati- 30
tude and longitude of his hunting in 1886.    From this record
the sealing grounds shown in the charts as indicated above
are easily located.
Captain O'Leary, a witness called on the part of Her Majesty,
shows that he sealed on the grounds in 1886 in the " Pathfinder," which made its catch in the waters between the Pribilov
Islands and the Aleutian chain as described in the chart.
In 1887, while he hunted a little more to the  westward of
the grounds which he hunted in 1886, nevertheless the catch
of that season was made in comparatively the  same portion of ^0
the sea.    He was not far from Bogosloff when he started for
home.
Mr. Ramlase, a witness called on the part of Her Majesty,
testified that in 1886 he sealed in that part of the sea in which
he could see Bogosloff on several occasions. He sealed he said
probably 30 to 40 miles from it.
Mr. Reppen, a witness on behalf of Her Majesty, in his direct examination stated that in the months of July and August,
1886, the position of his vessel was between the Pribilov Islands
m -50
and Ounalaska. That he was about 55 north latitude and 166
and 167 west longitude. That he was there in July and that,
at the beginning of August, he went further east, about 20 or
30 miles.    He had heard of seizures at this time. SEALING GROUNDS IN  BEHRING SEA. 61
In his cross examination he was further questioned as to his r. 310,
experience in 1886, and he told Mr. Lansing that sometimes he      50'
went to the west, or north, or east, or south ofthe Islands, and
the seals he found no thicker in one quarter than in another.
Later on he explained that in all of this sailing he  covered
only the " sea about the Islands."
Captain McKiel, a witness called by Her Majesty, referring R. 671,
to the " Mary Taylor " in 1887, explains that he worked in the
vicinity of 56 north latitude, 171 west longitude that season,
10 and when asked how the track of his vessel compared one year
with another he said that " the track this year will cover the
year before," generally.
Captain Moss explained that in 1887 he sealed at about R. 335,
169-30 longitude and 56-15 latitude. That he worked from
there north towards Ounalaska, and the last he sealed was
about 20 miles off Ounalaska. That in 1886 he sealed about
the same place. That he sealed six times in Behring Sea,
three times as master, and that he generally goes to the same
place, namely, 56 north latitude and 169 west longitude; that
20 be generally made good catches.
Captain McLean, a chief witness for the United States, in R- 414,
. .     .. . . 1 line 16.
his direct examination said:—
" I used to find the best hunting about sixty or seventy
miles off, or even ninety miles."
Asked " Are you speaking of the Pribilov Islands ?" he
answered " Either the Pribilov Islands or the main islands
abreast of them."
Cross-examined in regard to the entries in his log, the following statements were made, which indicate that Mr. McLean
30 who claimed to be the best sealing captain from 1883 to 1889,
thought it important to find out and keep secret the positions
where big catches were made.
Q. " Had you any object in not entering in the log the num- r 435,
ber of seals that you caught ?    A. Yes." lme 50-
Q. " What was your object ?
A. "Because if you have a log-book and you made pretty
good catches your hunters or crew may get hold of the book
and take the positions out of it, and going on board another
ship they would give it to them."
40     Q- " Why did you not want to have that done ?
A. " Because it might interfere with my business, I wanted
to go there myself again, and I did not want to have too many
vessels around me in the sealing grounds."
Respecting his operations in 1886, Captain McLean in his
cross-examination stated :—
Q. " Will you be kind enough to state again the position R. 440,
you were in on the 12th July, 1886 ?
A. " This should be the position; about 55-37, that is
where the seals were caught and taken in.
Q. " And the longitude 167-8 ?
50     A. " Yes, sir.
Q. " Now, look at that and see in the year 1885 on that
same day, what was your position ?
A. " My position was latitude 55-46, longitude 168-30.
Q. " How far apart are these two positions, about?
*
1
,! uua
62
SEALING GROUNDS IN BEHRING SEA.
A. " This is on the 12th July?
Q. "Yes.
A. " There would be nine miles difference of latitude and
probably about 22 miles difference of longitude.
Q.    What would be the actual difference as the crow flies ?
A. " About 20 miles.
Q. " Take the 15th July, 1886, and say what was your
position ?
A. " Latitude 55-25, longitude 167-57.
Q. " I see you cannot get the same day in exactly in 1885,10
but taking between the 12th and 18th of July, 1885, how far
away were you from the same position ?
A. m The difference will be close on to 60 miles.
Q. " That will be the farthest ?
A. I Yes, sir.
Q. " Compare any day in August that you like, take the
first of August, we will say, how does your position in 1885
compare with your position in 1886 on the 1st of August ?
A. " It would be about 22 miles difference.
Q. " Can you account for the tact, Captain McLean, why it 20
was that you seem to have got pretty near the same spot in
the same year ?
A. " Do you ask me why ?
Q. " Yes.
A. " Because I used to want to go over the same ground.
Q. " And you were catching seals there ?
A. " Yes, I caught them before and if I did not get seals
there, I would go farther along.
Q. " But you did find them before ?
A. " Oh, yes. 30
Q. " And you found them in the same quantities, did you
not ; perhaps better in 1886 than in 1885 ?
A. " Yes, sir, in 1886 I found more seals on that day.
Q. " And all through the year didn't you find it better ?
A. " Yes, sir, of course, in 1886 I made a pretty good catch
in July.
Q. " And you got some seals in August, too ?
A. " Yes, I got some in August.
Q. " Taking all the entries- ofthe position of your ship in the
year 1885, is it not correct that you were sealing in 1886
pretty much near the same ground as in 1885 ?
A. " Well, in 1885,1 made a pretty fair catch, and I thought 40
I would go over the same ground again and seal where I
did well in 1885.
Q. " Then you did place a value on the position ofthe ship?
A. " That is the reason I kept that in this book.
Q. " And you followed that out successfully for two years
did you not ?
A. " In 1885 and in 1886.
" Did you go on the same ground in 1887 ?
1Tes- *n
" Why ? 5U
A. " Because I expected to find seals there.
Q. " Did you find them ?
A. " Yes."
Q.
A.
Q.
R. 444,
line 60.
And again—
Q. " As a matter of fact now we will take these entries for
June, they are as follows : June 2, 151 seals ; June 3, 44
seals ; June 4, 28 seals ; June 6, 95 seals; June 7, 125 seals;
June 8, 197 seals ; June 10, 172 seals ; June 11, 38 seals.
As a matter of fact none of these were taken in 1887 ? SEALING GROUNDS  IN  BEHRING  SEA. 63
A. " They were taken in 1886 by the ' Mary Ellen' and I
took the positions and places then in that book so that I
could refer to them. I wanted to have the positions of where
I caught the seals. It was considered pretty good ground,
and I. might want to go there again."
Captain Raynor, a leading witness for the United States, R. 526,
stated that the first time he went sealing in 1886 he went to lme 55'
Unimak Pass, and north-east to St. Paul Islands, and 24 miles
off the Islands. He had been there for seals before. He found
them where he found them before. Asked as to his position
10 after that, he answered, " Well, I went all over the ground
between the Pribilov and Aleutian Islands."
Asked as to 1887 when he had taken 800 seals before the
28th of July, where he caught them, he answered, " I caught
them very much on the same ground all around out there."
Pressed as follows :—
"Just about the same ground as you caught them in 1886 ?" R. 527,
He answered, " Yes."    He admitted that he had taken over      67-
1,600 seals before he was seized on the 25th of August, and
he was asked again:—" In what locality did you get that
20 additional number of seals in the month of August?" he replied,
" Well, I got them in about the same ground."
Q. " You caught them about the same ground ?
A. "Yes.
Q. " You kept working around in about the same ground ?
A. "Yes, sir."
In 1889 this witness was again in the sea, when ordered out R. 528,
his position was about 170 west longitude and 55 north latitude.    Asked " What were you in that position for ?" he
answered, " I was there to look for seals because that is the
30 sealing ground all over there."
Q. " Of course, and you went where you knew the sealing r. Ibid,
ground would be? line6°-
A. " Why, certainly."
This witness also stated that he had never gone to Behring
Sea without finding seals.
Captain Miner, a witness called on the part of the United R. 547,
States,  who had  been   sealing   in   1887   in   Behring   Sea,
stated that he had " heard of good grounds, or of good catches R. 548,
. n: •, i      - t       i    •       tit • line 30.
having been made entirely around the islands m all directions
40 from them." On being asked " Good sealing grounds?" he
answered " Yes, sir." Referring to 1887, Captain Miner, in
cross-examination pointed out that when he got news of the
seizures he was sealing from 30 to 70 miles off Bogosloff bearing
south south-east.
This witness was asked in regard to his sealing trip in 1890 R. 558, line 8.
and whether he went to the "usual grounds," he answered
in the affirmative and that he sealed " entirely around the
Islands." Asked as to another occasion when sealing in
Behring Sea, what time he reached the sea, he answered :—" I
50 forget the date I reached Ounalaska, but I reached the sealing
ground or began sealing on the 10th of August." NBD
64
SEALING GROUNDS IN  BEHRING SEA.
R. 661,
line 30.
R. 1836,
line 9.
R. 616,
line 26.
R. 702.
R. 724,
line 10-30.
R. 729,
line 50.
R. 731,
line 30-40.
Charles Hackett gives the latitude and longitude of his catch
which corroborates the idea conveyed by the charts for 1889
and 1890.
The Captain of the revenue cutter " Richard Rush," which
made seizures in 1887 and 1888 was examined before a Congressional committee; he stated that the seals pass this locality
in going to the feeding grounds nearer the Aleutian Islands.
Referring to where the sealers hunted :—
Q. I The hunters intercept the seals as they go to and from
the islands? 10
A. | Yes, sir, that is what I understand."
Captain Hansen, a witness called on behalf of Her Majesty,
an experienced sealer, testified that he hunted to the southward and westward of the Pribilov Islands about 60 or 70
miles distant; after that, a little to the east; the direction was
about north north-west of Unimak Pass. This was in 1888. In
1889, he sealed southward and westward of the Pribilov
Islands.
Speaking generally, in 1888, 1889, and 1890 he had fished
somewhere about the same place. 20
Mr. Crow-Baker, in giving the latitude and longitude of
the catch of the "Triumph" in 1888, corroborates the charts
already referred to as showing the locality where seals are
caught.
Captain W. E. Baker, an experienced sealer, called on behalf
Her Majesty, speaking generally as to what part of the sea he
fished in, said " the first two years I sealed mostly to the
southward and westward of the Islands from 60 to 90 miles."
In 1890 he fished the first part of the season to the westward
and southward of the Islands from 60 to 90 miles.   The latter 30
part of the season from 40 to 60 miles east.
Having been cross-examined as to changing his position
from time to time on re-direct examination, Captain Baker
explained that in 1890 the distance between the extreme
points where he fished that season was not greater than 150 to
200 miles, and that in ordinary years he hunted over a space
west north-west and south-west of the Pribilov Islands, covering
a radius of 100miles; and that notwithstanding that the seals
change their so-called haunts from year to year " as a matter
of fact they are always in Behring Sea somewhere around 40
the Pribilov Islands."
Captain L. McLean shows that his catch of 1888 was taken
westward and southward, and westward ofthe Pribilov Islands.
He considered eastward of that locality the best sealing ground,
but did not go there for fear of being seized.
In 1889 he was on a more favourable ground, which he described to be a direct line from Ounalaska to St. Paul. " My
usual sealing ground would be in a direct line from Ounalaska
to St. Paul's Island, about 167-50, 55-20 from 5515 to 55-30."
In that vicinity he explains, the most favourable grounds are 50
found. SEALING  GROUNDS IN  BEHRING SEA.
65
Captain Warren says that it is a common thing for the
vessels to meet on the sealing grounds and he names quite a
number that he saw in 1886 in Behring Sea.
Captain Magnesen speaks of the sealing grounds as being
about 5510orl5 and 167. Well known to be a good sealing
ground.
Having established that the sealing grounds in Behring Sea
are well known and easily defined, it is proposed to point out
how plentiful the seals were in those sealing grounds.
10 Captain Warren has explained the advantage of sealers
having the additional months afforded bv the sealing: in
Behring Sea for those vessels which before 1886 operated on
the coast, and has stated that notwithstanding the " Thornton"
was seized in 1886, and the " Rustler" did not go into the sea,
his other vessels, viz.: "Anna Beck," "Sayward," 'Grace"
and the " Dolphin" in the season much shortened by the
seizures, cleared above expenses about $20,000. One ofthe
affidavits used by the United Slates at Paris, sworn to by Anton
Melovedoff,  who  had  resided  since   1869 at the Alaskan
20 Peninsula, and who was first chief of the Island Kadiak, states
that " from 1884 the schooners kept on increasing, until in
1891 there was more than one hundred."
( aptain Miner has explained in his evidence that sealing has
been a great trade on the Pacific coast, and it has been growing
since he first joined it.
Again, it was in its most flourishing condition in 1887. There
were more in the business in 1886 than in 1885 ; it took its
greatest start, however, in 1887.
Touching the quantity of seals to be found in the sea, the
30 witness, J. H. Douglass, already referred to in the prosecution
at Sitka, gave the following evidence :
" During this season from May till November the fur seal
are plenty in the waters adjacent to the Pribilov Islands and
are migrating to and from these Islands, and are at all times
very ptenty between Unimak Pass and said Islands in a track
about 30 miles wide, which seems to be their highway to
and from said Islands. The schooner " Carolena" and her
boats when' seized were directly in this track. I was present at
the time of seizure."
40 Anton Melovedoff, already described, in his deposition, submitted to the Paris Tribunal by United States, says :—
" These schooners care very little about coming to the
Islands to take seals on the land, for they only have to hover
around the fishing banks from 50 to 200 miles away and take
all the seals they want."
Mr. William Brennan, one of the United States deponents
at the Paris Tribunal, testifies as follows :—
to
" Nearly all would lose money if the hunting was confined
the Pacific Ocean, but they depend on the Behring Sea
bs— 9 ■tiKtfi
66
SEALING  GROUNDS IN  BEHRING SEA.
catch, where the seals are more plentiful and occupy a more
limited space as a feeding ground."
In the United States case at Paris, that Government used
a report of Mr. C. M. Scammon, a naturalist, who was also an
officer in the revenue marine service, in which he says :—
" Their food is mainly fish, and they are naturally found
where that is most abundant. Seal-hunters say and statistics
show that where fish are most plentiful, as in latitude 55° to
56° north, in Behring Sea, on the Shumagin Banks off the
Alaskan Peninsula, and off the entrance to the Straits of Fuca, 10
there the best catches of seals are made."
Writing to the Secretary of the Treasury, special agent G.
R. Tingle, on August 18, 1886, reporting the seizure of four
sealing schooners, commends Captain Abbey for his active and
good work, " if he should be obliged to leave the waters "
before the arrival of the " Bear " to relieve him, " it will be
unfortunate as the fleet of schooners will play havoc among
the seals."
Captain O'Leary, already referred to, examined as to 1886,
was asked " How did you find the seal as to quantity, when 20
you were sealing there toward the end of July?" to which he
answered " I found them as plentiful as I wanted them."
Captain Cox, an experienced sealer, says he never went on
a voyage without finding seals. Cotsford, one of the hunters
on the "Carolena," seized in 1886, and called by the United
States, on his cross-examination says the " Carolena" was
doing very well at the time of the seizure.
, Captain Hansen asked " At the time you left for home, when
the ' Onward' ' Thornton' and ' Carolena' were seized, were
you in good sealing ground ?" answered,  " Yes, the best I 30
had been in for some time.    I was getting from 50 to 80 seals
a day with three boats, shooting with rifles."
Mr. Alexander, called by the United States, and already referred to, on his cross-examination stated that he found a
larger quantity of seals in July and August in 1895 than he
did in 1894. He found a considerable quantity in both years
both in August and September; he passed through them in
July on his way to the hunting grounds.
Mr. Bragg, who was a hunter for 8 years, testifies that during that time he has individually killed thousands of seals.       40
Captain Jacobson testified :—" In those days it did not take
much of a hunter to get seals, because seals were very plentiful."
Captain Shepherd, on the examination before the Congressional committee, stated that he had estimated in 1887 the
sealers would have taken 20,000 more seals had no seizures
been made. " We captured 15 vessels, on board of which we
found about 12,000 skins." DURATION OF THE SEALING SEASON IN
BEHRING SEA.
In dealing with the question of the number of seals which
may be taken, it is important to consider the length of the
season in Behring Sea. It was contended by the United States
at the hearing that the sealing ends about the 20th August,
and that in 1886, at least, there was a common understanding
among the masters of the schooners that they should begin
the homeward voyage not later than that date.
10 The evidence does not support the theory of any such understanding, and it may be further observed that although prior
to 1886, a very limited amount of sealing had been done in
Behring Sea, yet many whaling and walrus-hunting voyages
had been made there. A great deal of information had been
thus obtained respecting the character of the weather usually
prevailing in that locality ; the ordinary conditions of seal life
in those waters were also known. It is submitted that these
facts, together with the proof which was adduced respecting
actual sealing operations, completely negatived the contention
20 of the United States as to the length of the season.
The seals begin to enter the sea about the end of June in
each year, and do not leave the islands permanently until about
the month of November. The United States statute under
which the vessels were seized made it unlawful to catch any
fur-seal in the months of June, July, September and October
in each year.
Theodore Magnesen, a witness called by the counsel for the
United States to prove the catch of the " Sea Lion " in 1890,
states that in that year out of a catch of 700 seals, he took 300
30 in the month of September, and that he continued sealing until
the 14th of that month. He says :—
" You can get lots of seals in September." R. p. 1004.
So also the witness Steele called on behalf of the United
States to prove the catch of certain vessels, says that there are
some fine days in September and that some fine catches are
made in that month.
W. E. Baker, who came from Nova Scotia in the schooner r. v. 721.
"Viva"  in   1888,  and   went   sealing   for   the   first   time
in that year, remained in the sea until the 2nd September,
40 when having made a catch of over 1600 seals with five boats,
he returned to Victoria.
This master also in the same vessel in 1890, took 370 seals
in September, his total catch that year being 2015.
Jacobsen, who was sealing in a small schooner of 13 tons, R. 723, line 43
called the  " Mountain Chief," indifferently   constructed by
the Indians ofthe coast, also remained in the sea in 1888 until
the 7th September without difficulty.
67 R. p. 1727,
line 57.
R. 1383, line
60.
R. p. 335, p.
341, line 6.
R. p. 732.
R. p. 660,
line 10.
R. p. 1120,
line 45.
R. p. 1354,
line 60.
R. 702.
68
SEALING SEASON IN  BEHRING SEA.
In 1887 there is evidence regarding
vessels.     There  are only four cases,
" Vanderbilt,"    " Black   Diamond,"
in  which   there  is  not evidence  of
the movements of 14
viz.,  the  "Favorite,"
and   I Mary  Ellen,"
direct  interference  in
the voyage by the seizures then being made. Of these four,
Captain Meyer of the " Vanderbilt," who was called on
behalf of the United States, remained in the sea until the 11th
September. His last lowering day was the 29th of August.-
The " Black Diamond"  left on the  15th of August an
exceptionally early date, and though the reason is not stated 10
in the evidence, it is more than probable that her master was
influenced by rumours of the seizures.
The " Mary Ellen " left the sea on the 19th August. She
had then a catch of 2500 seals, of which 1530 had been taken
in the sea and on the day before she left took 80 seals.
Having regard to the evidence given it is more than probable
that this vessel had heard of the seizures then taking place.
Her movements were doubtless regulated by a desire to save
her catch from confiscation.
The " Favorite "  remained until   the  27th  August, and 20
started home on that date because the vessel was short of
water and  could  not  continue operations without going to
some port for a supply.
R. 724.
In 1888 six vessels are mentioned. The "Viva," and
" Mountain Chief," remained until the 2nd and 7th of September respectively as previously mentioned. Captain L. McLean
on the "Favorite" sealed until the 27th August. The
" Annie C. Moore " left on the 20th August. The " Juanita "
began her homeward voyage on the 20th, in pursuance
of instructions given to her captain by her managing owner 30
before she left in the spring, which instructions were based
upon information given by Mr. Milne, collector of customs at
Victoria, that there would be no seizures between the 10th of
July and 20th of August that year.
The only other vessel mentioned is the " Triumph," the date
when she left the sea is not stated. Her last sealing
day was 20th of August. As none of the members of her
crew could be obtained to give evidence, the statement
of her catch is found in the testimony of Mr. E. C. Baker, a
part owner of the ship, and he had no knowledge ofthe reason 40
why she left the sea.
In 1889 there is a record of 16 vessels. Of these there is
direct evidence of interference in all except in three instances,
the "Viva," "Maggie Mac" and "Beatrice."
With reference to the " Viva," she was under the command
of Captain W. E. Baker; by the 21st of August he had made
a catch of 2180 seals, and left the sea at that date. There is
no direct statement that he had at that time received any
knowledge ofthe seizures, but it appears that he spoke a number of schooners in July and August, and having reference to 50
the movements of this master in other years, it is not probable SEALING SEASON IN  BEHRING SEA. 69
that he would have returned at so early a date unless he had
some reason to fear that his voyage would be interfered with
by the cutters, and thereby cause the loss to his owners of the
very good catch which he had made.
The " Maggie Mac " left the sea on the 25th August, but R. 667.
her master is dead, and the number of her catch had to be
obtained from the witness, Ker, who had no knowledge ofthe
time on which she began her homeward voyage.
The " Beatrice " did not hunt after the 13th August, as she R. p. 67i,
10 lost three canoes on that date and spent some time in looking me
for them.    She had a crew of Indians, and they appear to
have become so anxious an account of the loss of their comrades that the captain decided to leave the sea on the 20th.
The year 1890 was a stormy season on the whole, yet out
ofthe 16 vessels mentioned in the evidence as sealing in that
year, six remained until the following dates, viz.:—
" Sea Lion "  14th September.    I
"Viva"  12th "
" Ocean Belle "     6th "
20         " Juanita"     2nd "
" W. P. Sayward "     1st
" Penelope"  30th August.
" E. B. Marvin"  31st
It is, therefore, established that the habits of the seals, and
the weather ordinarily prevailing, would permit the vessels
engaged in sealing to carry on operations until well into the
month of September, if it was necessary, in order to complete
their catch.
Further it appears that it was part of the plan of the owners
30 of the vessels seized in   1886 to continue sealing for that
period.
In the case of the " Carolena" it was proved that she
was supplied with an outfit of provisions to last for a
long continued voyage. The witness, Muuger, says, in cross-
examination :—
" I knew that there was lots of provisions.    The ship was R. p. 635.
full of provisions, piled up so that you could hardly get round
on account of them.    There were great quantities; there was
lots of food."
40     And he also says:—
" In the sea the captain talked of going home about the end R- p. 636,
of the month (of August)."
In the case of the " Onward " Mr. Spring says :—
" The instructions (to his captain) were to the effect that he r. p. 864,
should proceed to Behring Sea, and continue there as long as Une 30- ■
possible, and to be back some time in the month of September,
at any rate to be guided in a measure by Capt. McLean, on the
schooner " Favorite," at that time they had agreed to meet in
Behring Sea."
50     Referring to the case of the "Favorite" he says, he does r p. 1302,
not think there were any special instructions given, as he took      6
it for granted that Capt. McLean being an interested party
9 70
SEALING  SEASON  IN  BEHRING SEA.
R. p. 402,
line 55.
R. p. 402,
line 60.
R. p. 416,
line 50.
would remain as long as possible.    He is certain that he and
McLean had an understanding to that effect.
And Captain McLean, speaking of the voyage of that
schooner, says : —
Q. " Was it not your intention to remain sealing for as long
as the sealing would be good ?
A. I Yes, sir.
Q. " And as long as there would be seals ?
A. " Yes, as long as I would be justified in sealing there.
Q. I And you had enough provisions to enable you to do that ? 10
A. " Yes, I believe I did.
Q. " And you could have remained until the 1st of September.
' A. I Yes, sir, if the weather would permit."
It is true that this witness when called on another occasion
in his evidence in chief states, when asked what he would
call the end of the sealing season in Behring Sea in the years
1886 and 1887 :—
R. p. 462,
line 50.
" About the 20th August I would consider the end of the
season.    I used to leave the sea then." 20
But a moment after he gives an answer rather inconsistent
with that when he says :—
" The weather used to be bad and we figured on getting
back about the last August and the 10th of September. We
usually outfitted for that time. Of course we could remain
there for a longer time, but probably the weather would not
justify us in doing so."
Later on in his direct examination he says :—
" I have been there as late as September.
'Q. " Did you have any sealing in September ? 30
A. " Yes, sir ; we had some.
Q. " Was that exceptional, remaining over until September?
A. " Yes; unusual."
During the cross-examination of this witness a deposition
made by him at San Francisco on February 1st, 1892, was put
in, where in answer to the question : " When do you call the
season's catch over?" he said: "About the 11th September."
R. p. 234.
R. p. 909.
It. p. 040,
line 15.
Referring again to 1886, it is proved that Captain Warren's fleet in the  Behring  Sea that year  consisted  of the 40
vessels: the " Thornton," " Anna Beck," W. P. Sayward,"
"Grace" and Dolphin."
Speaking of his plans for remaining in the sea, he says :—
" My intention was to have stayed in the sea until about
the end of September, and taking the supplies I had I am
able to say that there was plenty to have held out for the full
season.    It was so arranged."
E. P. Miner, a witness called for the United States, speaking of the outfitting of the " Penelope" for the voyage of
1887, says.: 50
11 fitted out in February. I expected to make about an 8
or 9 months' cruise. That is the usual length for which I fit
out for seal hunting." BHHBl
SEALING  SEASON  IN BEHRING  SEA.
71
in
Q. " When you speak of a nine months' cruise, is
March you usually fit out?
A. " No, sir ; we usually get in by October anyway.
Q. " At any rate in this year, 1887, you fitted out for that
period ?
A. " Yes; I fitted out in February."
In the evidence of O'Leary, master of the
in 1886, the following occurs :—
Pathfinder "
R. p. 293,
line 40.
Q. " How long were you provisioned to stay and how long R. p. \
10 did you expect to stay in the sea when you went there ? line ^
A. " I intended to stay until about the 1st September."
He then states that he left on the 4th August hearing of
the seizures from the schooner " Sylvia Handy."
In answer to the question how long he intended to stay in
1887, he says :—
" I intended to stay until about the 1st September."
And explains that he left on the 17th August on account of
getting too close to the track of the seizing cutter.
And further on, in cross-examination :—
20     Q. " Is it not a matter of fact that you came home because r. p. 296,
the weather was rough ? lme 44-
A. " N o, no."
Q. " And that you could not catch any seals because of the
North-westers ?
A. " We generally get good weather there in August.
Capt. Bucknam, examined in the case of the " Ariel,"
says :—" We generally get good weather there in August."
Q. " You say that whaling vessels had told you, that there
was fine good weather in Behring Sea in October.
30     A. "Well, I have heard it on whaling vessels, and I have
heard it for the last twelve years."
The evidence therefore instead of disclosing a general idea
prevailing among sealers that the weather would not permit
them to remain longer than the middle ofthe month of August,
shows that with reference to the vessels seized in 1886,
provision was made for a much more extended stay, and
that the voyages were beguu with the determination to remain
as long as the weather would permit.
With reference to the actual weather of 1886, there is satis-
40 factory evidence that it was a favourable season, and that
operations could have been continued to as late a date as we
have a record in any year.
Lachlan McLean says :—
Q. " And the weather was very uncertain in 1886 and 1887,
was it ?
A. " No ; 1886 was an extraordinary fine season."
Witness Bragg, of the " Mary Ellen " says :—
Q. " Was that a stormy August or just ordinary ?
A. " Just an ordinary August."
50     Ramlase, who was on the " Theresa," says :—
" I know we didn't have any real bad weather for the year: r. p. 2
it was what I should call a good year." line 40-
R. p. 261
line 33. 72
SEALING SEASON IN BEHRING  SEA.
R. p. 300,
line 55.
R. p. 1727,
line 40.
R. p. 266,
line 56.
R. p. 209,
line 1.
Later on he explains that they left about the 25th August,
on account of being short of provisions, and that they did not
have any bad weather going home.
It may be urged, that nearly all the vessels left the sea in
1886 at an early date in the month of August. This circumstance is easily explained.
Appended to this portion of the argument is a table,
showing the number of vessels reported in the evidence as
sealing in the years 1886-1890, in Behring Sea and the time
and circumstances under which they left. By reference to 10
this table it will appear that out of the 14 vessels reported in
1886, only two British vessels and one American schooner
appear to have finished their season. In every other case the
vessel was either seized or molested, or had its voyage interrupted by some untoward event. Here also it is important to
note that a witness called by the United States to prove
a catch in that year was Captain Meyer of the "Vanderbilt,"
and he states that he remained in the sea until the 31st
August, and that his last lowering day was the 30th August.
With reference to the vessels which completed their voyages 20
undisturbed, i*; appears that the " Mary Ellen " left about the
25th day of August, but this vessel had by that time made a
large catch, and was therefore ready to return at any moment.
Bragg says:—" The captain said the first north-wester he
would get he would steer for home."
And in re-examination, speaking of the weather on the day
they began their return voyage, he states:—
" To the best of my recollection, a little after daylight in the
morning, the captain came on deck. The wind was to the
westward and he told me to put the wheel up and set the mam 30
sail and keep her off. He gave the course, which I forget now,
but, he said to set the main, topmast stay sail and that night
we were down the pass."
Q. " What kind of a sailing breeze did yon have that day ?"
A. " All the wind she could stagger on with."
Q. " A favourable wind ? "
A. "Yes."
It does not by any means follow from this, that a skilful
navigator such as Captain McLean is admitted to be, would
have considered that weather sufficient to drive him home if his 40
catch up to that time had been unsatisfactory. On the contrary, it is a common sense proposition to assert that if there had
been any inducement to stay, wind of the strength referred to
would not have deterred him from continuing his sealing
voyage.
With reference to the "Sayward" the evidence ofthe
captain was introduced by means of a deposition taken out of
court. The witness was asked no question as to his reason for
leaving the sea, but he remained until the 24th August. It is
very probable, however, having regard to the locality in which 50
he was operating, that some knowledge of the seizures had
come to him prior to that date. SEALING  SEASON  IN BEHRING  SEA.
73
R. p. 327,
line 10.
R. p. 341,
line 9.
R. p. 731,
line 64.
R. p. 1214,
line 10.
R. p. 1400,
line 40.
The weather during 1887 was also favourable for sealing.
McKiel, who was on the " Beatrice " and started home about
the last of July, says it was fine weather when he left.
Moss, who was on the "Kate" and left the sea about the
25th August, says the sealing season was not over then.
Lachlan McLean, master ofthe "Favourite," had 14 lowering days from the 10th day of July, when he began sealing,
until the end of the month, and between the 1st and 26th
August had 19 lowering days.
10 The " Ada " had 29 lowering days from the 16th July to the
25th August inclusive, and the little " Triumph," sealing
much further to the westward, hunted 19 days beginning on
the 5th and ending on the 25th of August.
The reported catches also of other schooners during
the time in which they were allowed to remain on account of the
seizures, is conclusive on the point that during that period at
least good sealing weather prevailed generally throughout the
sea.
20 It is also clear that the weather of 1888 and 1889 was very
similar to that of 1886 and 1887.
In 1888 there is not a great deal of direct testimony on the R p. 721,
point, very few vessels being mentioned in the evidence, but
it is shown that Capt. W. E. Baker on the " Viva " had 13
lowering days between the 9th and 28th July and his boats
were out 19 days in August.
651,
The operations of the following vessels indicate the state
of affairs in 1889.
30     The " Mary Ellen " had 16 lowering days in August between:
the 1st and 25th when she stopped sealing.
The "Ariel" had 13 lowering days between the 14th and
30th of July ; but of these the 16th, 17th, 19th, 21st and 24th
were not full days. On the 30th she lost a boat and spent some
time in looking for it; between the 5th and 18th August R. pp. 1461-5,
there were 11 lowering days ; but the 5th, 10th, 16th and
18th were not full days. She left the sea on the 18th
fearing seizure.
Olsen, who was master of the " Anna Beck," says that the r p. 711,
40 weather in July  was fair,  especially the latter end  of it and      10-
that the whole of August was good sealing.
The "Viva " lowered 21 days between the 6th and 30th of R. I 719.
July, and 1 i days  between 5th of August and the  21st on
which latter day the return voyage was begun.
The " Juanita " was seized on the 31st of July. She began
sealing on the 3rd and between that and the 30th had 17
lowering days.
The " Favourite " entered the sea about the 13th of July, 1
and from that day to the end ofthe month had 15 lowering
50 days ; in August there were 16 lowering days up to the 25th
when she stopped sealing.
bs—10
R. ;
line
. 1341.
50.
line 10. HMTMIfr
R. p. 756,
line 40.
R. p. 1439,
line 30.
74
SEALING SEASON IN  BEHRING SEA.
Capt. Cox of the " Sapphire " had 21 lowering days in July
between the 5th and the end of the month. He did not seal
in August, being afraid of seizure.
The | Minnie " stayed until the 18th August. Magnesen says
| we had very fine weather."
It will be seen by reference to that part of the argument in
which the testimony relating to the claims of the particular
schooners is discussed in detail, that in nearly all the cases
subsequent to 1836 the schooners were provisioned and equipped with the special intention that they should remain in the ^o
sea for the whole time, during which sealing could be successfully prosecuted.
The contention of Great Britain therefore, is, that in arriving at an estimate of the catch, which the vessels seized or
warned would probably have made if not interfered with, it
should, as a starting point, be determined that they would in
each case have continued sealing under the favourable conditions
of weather, proved to have been existing, until as near the end
of September as would have been necessary to accomplish a
satisfactory catch.
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C3        i~i-lcM00001CS©fc»t^C3,-**j5l METHOD FOE COMPUTING THE ESTIMATED CATCH.
In estimating the number of skins which would probably
have been taken by the schooners seized or warned in the
different years, the Commissioners will doubtless have regard
to the movements of the other vessels whose voyages are
mentioned in the evidence. In making this comparison it must
be borne in mind that Indians in canoes did not, in the years
referred to, as a rule, take as many seals as white men hunting
in boats. It is shown that boats took about one4hird more
10 than an equal number of canoes.
It is proposed at this stage of the argument to examine the
testimony with regard to the inferences which it is submitted,
should be drawn therefrom, by the commissioners in the
calculations which it is assumed they will enter upon in the
consideration of this branch of the inquiry.
It is contended by Great Britain that in 1886 the | Mary
Ellen" is the only vessel of which it can be stated with
certainty that she completed her voyage without interference
of any kind.
20 The "Vanderbilt" was also sealing until late in the season
that year, but it is quite clear from the evidence of the master
in her case that he was well aware of the seizures which were
then being made. He now says that that circumstance did
not trouble him much, as he expected that if seized the
Government of the United States would fully reimburse him
for his loss. Such a statement cannot be accepted without a
great deal of qualification. In any event no details of his daily
catch are given, nor is there any record of the performance of
the several hunters employed upon his vessel. There is,
30 therefore, no means of determining at what time he reached
the sealing grounds, or during what period he continued to
operate there.v For this reason the evidence relating to the
catch ofthe "Vanderbilt" does not disclose any satisfactory
data upon which a calculation can be based.
The record of the " Sayward " is also incomplete as has been
shown before.
It will perhaps be argued that in dealing with the voyage of
the " Mary Ellen," some allowance should be made on account
ofthe statement of the witness Bragg, that her catch—2395
40 skins—was an exceptionally large one. It may have so appeared
to him, but a comparison ofthe result of her sealing trip with
that of other schooners shows that the result of the voyage
was not as remarkable as he considered it to be.
For instance, Capt. Shepard, examined before a Parliamentary Committee on Merchant Marine and Fisheries, says:—
% Q. "What is usually a fair catch for a vessel of the descrip- r. 1836;
tion of those now being fitted out ?" line 28.'
79 80
METHOD  FOR  COMPUTING THE  ESTIMATED  CATCH.
R. p. 1731,
line 55.
" A. It varies very much according to the size of the crew ;
about from 1200, to 2500 seals."
"Q. Say 2000, would that be a fair average?
"A. I would say 1800."
The "Favourite" in 1886, with an outfit of 10 canoes,
although her voyage was interrupted by the cutter, took 2374
seals between the 7th July and the 15th August. In 1887,
the I Pathfinder" with a crew of 6 boats, captured 2200
between the 28th June and the 17th August, and would doubtless have added largely to the number if she had not then been 10
frightened from the ground by her proximity to the track of
the cutters. In the same year the " Mary Ellen " took 1530
seals between the 18th July and the 19th August. The
"Favourite" took 1834 between July 10th and August 26th.
In 1888, the " Mountain Chief," with five canoes and a stern
canoe caught 900 from the 1st of August to the 3rd or 7th of
September. So in 1889, the "Viva" caught 2180 with six
boats, between the 6th July and the 21st August, and in 1890
her catch was 2015 between 7th July and 12th September with
six boats. The "Minnie" in that year also got 1600 with 20
eight canoes and one boat between the middle of July and the
25th August.
In that part ofthe argument which relates to the duration
of the sealing season in Behring Sea, especial reference was
made to the voyages ofthe other vessels in the years succeeding
1886. For the reasous there stated it is now contended that
no vessel in 1887 furnishes all the data upon which a calculation
cap be made to determine, the average catch for a full season.
In that year again the " Vanderbilt" remained until late in the
season, but in speaking of the voyage the master is unable 30
to give any record of his daily catch. His remarks as to the
influence of the seizures upon his movements are applied as
well to 1887 as to 1886. From the description which he gives
of his different positions, it is clear that he was in the locality
over which the cutters were cruising, and the reasonable
inference from his statement that he tried " new ground every
day " is that he did so to avoid seizure, hence his small catch.
In 1888, the catches of the " Favourite " with 13 canoes
and the " Triumph " carrying 11 canoes and a stern boat, compare not unfavourably with the number taken by the " Mary 40
Ellen " in 1886. The " Viva " made a smaller catch, but upon
comparing: her record during this year with that of the same
vessel, under the same master, in the two next succeeding seasons, as well as with what was accomplished by other vessels
in 1888, it may fairly be assumed that there were circumstances
connected with Capt. Baker's voyage not mentioned in the
evidence, which would render it unfair to designate his as an
average catch.
It is beyond doubt that in 1889, every vessel engaged in
sealing was interfered with either directly or indirectly by the METHOD  FOR COxMPDTING  THE ESTIMATED  CATCH.
81
seizures. There is no direct statement to that effect regarding
the " Maggie Mac," but for the reasons mentioned under a previous heading, no assumption can be made upon that ground.
The " Viva " seems to have experienced the least difficulty.
She took 2180 skins in a short period of sealing, and that fact
furnishes another argument in favour of the average character
of the " Marv Ellen's 1 catch of 1886.
The evidence is conclusive that 1890 was a season of very
unfavourable weather. It is obvious, therefore, that the
10 catch of any vessel in that year cannot be taken as a fair
criterion of what the same, or any other schooner similarly
equipped, would accomplish in a year in which all the physical
conditions were such as to facilitate a long and prosperous
voyage for every schooner in the sea.
It is, therefore, submitted with confidence that the " Mary
Ellen " may well be taken as a representative ship, and that
the record of her operations in 1886 can be relied upon as
furnishing a fair basis upon which to estimate the number
of skins which could have been taken by any schooner well
20 manned and equipped in any of the years in question.
In pursuance of this proposition the following additional
inferences from the evidence relating to that voyage are submitted for the consideration of the Commissioners.
The " Mary Ellen " was engaged in sealing from the 28th
June to the 24th August, 1886. Five hunters were employed.
In the month of August these hunters sealed on every day
except the 5th, 6th, 12th, 13th, 14th, 16th, 17th, 18th and
22nd.
There were also certain other days, namely, the 11th, 15th,
30 21st and 24th on which four of the hunters were out only part
ofthe day, but inasmuch as the hunter Jacobsen worked all day
on the 15th, and half a day on the 11th, it appears that these
days were not altogether unfit for hunting. The stern boat
was also out on the 15th.
The number of seals taken in August by the individual
hunters is given in the evidence, and may be summarized as
follows :—
Seals.
De Fries, hunting 15 whole days, 3 half
days, took  220
40 Jacobsen, 15 whole days, 4 half days  175
Julian,     16 do        4     do          231
Lorenzo,  15 do        4     do        .... 179
Dillon,     16 do        4     do          153
958
In that month the stern-boat took 47, hunting on the 1st,
3rd, 4th, 6th, 8th,  10th, 12th,  15th, 19th and 24th.    This
number is not taken into  account in  the  calculation which
immediately follows.
bs—11
kp. B., p. 43
p. aio,
i20. 82
METHOD FOR COMPUTING THE  ESTIMATED  CATCH.
R. p. 612,
line 53.
R. p. 728,
line 45.
The practical deduction to be made from these facts may be
stated thus:—
The " Mary Ellen" had 5 men who were in the sealing
waters 24 days in August. This would be equal to one man
for 120 days. But there were 51| days in which no hunting
was done, leaving 68J actual working days for one man.
During these 68J days, 958 seals were taken (not including the 47 taken by the stern boat in 10 days). This is equal
to 14 seals per day for the one man power at work.
If by way of illustration this calculation be applied to the 10
case of the 1 Carolena," the following result is obtained :—
The " Carolena " had four hunters. If these four men had
been working in sealing waters during the whole of August,
weather and other conditions being similar to that experienced
by the " Mary Ellen," the total would be equal to one man
hunting for 124 days, (31 x 4= 124).
■ 51J days represent the number of days lost by the " Mary
Ellen | in 120 days.    (J || of 51§ = 53).
53 days would therefore represent the days estimated to be
lost by the " Carolena." 20
Deduct from 124 the 53 lost days, the remainder is 71, which
multiplied by 14 gives 994 seals as the take ofthe " Carolena"
in August on the basis of the " Mary Ellen's " catch.
It may be argued that it does not follow because the
1 Mary Ellen " took a large number of skins, that another
vessel, say the | Carolena," would have been equally fortunate. It will be shown, however, elsewhere, that the " Carolena" and each ofthe other schooners seized, were at the very
moment of their arrest, among the seals and were actually
engaged in taking them in large numbers. gQ
In this connection, the evidence of Captain Clarence Cox
becomes of great importance.
Q. " You were asked by Mr. Warren as to whether there
was not a good deal of luck in this matter and particularly
whether there was not a good deal depended on the way the
captain handled his men, and you said there was ? A. Yes,
sir.
Q. " Assuming that you have a captain who knows how to
handle his men, there is not much chance about it, is there ?
A. I consider the  chances  are  whether  the  captain  stays 40
among them and gets them or not.
Q. " If you once find seals the captain's duty is to get
among them 'i   A. Yes, sir.
Q. " If you do that, is there much chance about it ? A. No
chance whatever.
Q. " Why ?    A. If you stay among them you will get them.
$j$ ^ T^ t£ -7^ :7p
Q. " Coming down to this point of chance, did you ever go on
a voyage when you did not find them ?    A. I never did.
Q. " Given that you once find the seals, is there any more 50
chance about it than when you find mackerel when you are
mackerel fishing ?   A. No, sir."
Reference may also be made to the evidence of Capt. Baker,
where he says, speaking of the chances of finding seals :—
" Wherever I found them in July I always found them in
August." 1
VALUE OF SEAL SKINS.
10
It was shown that nearly all seal skins taken by pelagic
sealers are shipped to London, England, and there sold at auction ; the sales taking place at certain fixed periods in each
year. At these sales purchasers from different parts of the
world attend. The value of seal skins is practically settled
by the prices realized thereat.
In this connection reference is made to a letter from Mr.
Bayard:—
" Nearly all undressed fur seal skins are sent to London, R. 1879.
where they are dressed and dyed for the market, and where
many of them are sold. It is stated that at least 10,000 people in that city find profitable employment in that work, far
more than the total number of people engaged in hunting the
fur seal in every part of the world."
And also to an extract from the case of the United States
before the Paris tribunal:—
| Trior to 1870 all the fur seal skins, save a few thousand, r. 1879.
were marketed and sold in  China,  where the skins were
20 plucked, the commercial value being about five dollars in that
country and something less in Europe, but, the supply being
so irregular, the market price fluctuated, so that a cargo of
skins was sometimes sold as low as fifty cents per skin. Russia
also received a portion of the supply obtained by the Russian-
American Company. A few skins, however, were purchased
in England by J. M. Oppenheim and Company, and in the
fifties, New York also received a supply from the Russian-
American Company, but it was not until the lease ofthe Priby-
loff Island to the Alaska Commercial Company in  1870, and
go through the united efforts of that company with C. M. Lamp-
son and Company that the seal skin industry received the
impetus which has built it up to its present condition. At
the same time, the methods of dyeing and dressing the skins
were perfected through the same agency, and seal skins made
an article of fashion in general use in Europe and America,
and became much more valuable as merchandise."
" In the present, as a result of these endeavours and the increased prices, London has become practically the sole market
in which the skins of the fur seal are sold, and buyers gather
40 there semi-annually from different countries to purchase the
skins, which, to the number of one hundred and fifty thousand
or more, are sold at public auction."
Theodore Lubbe, a witness called on behalf of the United
States and a man of experience in the fur business in Victoria,
•
Vol. 2, U.S.
p. 266.
i
I
V
says:—
Q. " Is it not your experience Mr. Lubbe that the London
prices of these skins govern the transactions from time-to
time?   A. Decidedly."
Q. " Do you mean, Mr. Lubbe, that the London price is the
governing price ?   A. Yes, sir."
Q. "You mean the prices in London
J0 value in Victoria ? A. Yes, sir."
83
R. 1892,
ine 8.
govern
the market 84
VALUE  OF SEAL SKINS.
R. 1863,
1870.
R. 1871.
R. 1884.
line 20.
There were several firms engaged in buying skins at Vic
toria, and prior to 1887 most of the pelagic sealers sold their
skins to these buyers, but in 1887 the owners of sealing vessels
began to ship their skins direct to London, and this practice
became more common each year.
It is submitted that in arriving at the price of skins the
Commissioners should adopt the net price which could have
been obtained by shipping to London. It is clear that the
sealers had a right to ship their goods to the most profitable
market, and when it is shown that they were in the habit of 10
doing so, it is not an unreasonable presumption that they
would have shipped the seals caught, and to be caught, in the
years in question to that market.
1864, For instance, Munsie shipped skins to London in 1888, 1889
and 1890.
"Warren shipped to England in 1887.
Hall and Goepel shipped to England in 1888 and Richard
Hall swore they intended to do so in 1889.
Lubbe says :—
" Q. In the year 1888, who, besides yourself was purchasing 20
skins in Victoria ?   A. That is pretty hard to find out. I think
there were very few skins sold here that year.    They were all
shipped by the owners.    ^=       #       ^=    "With regard to 1889,
there were very few bought here that year."
Proceeding to consider the evidence with regard to the price
obtained for each of the years in question, it is claimed that in
1886 skins were worth $7 each.
r. in. Munsie states that in the fall of 1886 he sold the catch of
the "Pathfinder" to Joseph Boscowitz ,one ofthe Victoria
buyers, for $7 a skin, and that there was no reason why he 30
should not have sold the catch of the " Carolena " at the same
price.    He was not cross-examined on this question.
Lubbe, in his direct examination, was asked as follows :—
" Q. Will you tell us how many skins you purchased at
Victoria in the year 1886, and what was the average price
paid?   A. 16,797 seal skins in salt, average price, $4.89J."
On cross-examination he was asked as follows :—
"Q. In 1886 you have given us that you purchased 16,797
skins?   A. Yes.
"Q. But of that only 239 were Behring Sea skins ? A. Yes." 40
" Q. What did you pay for those Behring Sea skins ? A. $7.50.
And again:—
r. 1890. " Q. What price were Bessinger and Company, (who were
large buyers at Victoria) paying that year (1886) ? A. From
$6.50 to $7."
" Q. The coast catch comprises a very large percentage of
grey pups, does it not ?   A. Yes, sir."
" Q. Can you tell me out of that lot of 16,797 skins, how
many grey pups there were ?   A. 2972"
It was shown that the grey pup skins were worth very much 50
less than full sized skins, about $1.50 each.
R. 1882.
line 50.
R. 1890,
line 40. VALUE  OF SEAL SKINS.
85
For 1887 the sum claimed is $6.50.
Munsie says that in 1887 he sold 2326 skins to Joseph
Ullman, of New York, and realized $6 a skin. Part of these
were of the spring catch, and consequently less valuable than
the Behring Sea skins.
Jacobsen, speaking of 1887 :—
Q. " What did you do with your Behring Sea catch ?
A. "I sold them to Mr. Davis or to Moss, I don't remember which.
10     Q. " What did you realize for them ?
A. " That I cannot say, but it was somewhere between $6
and $7 for the Behring Sea seals.
R. 113.
Line 45
H^
Charles Spring:—
Q. " What was the price of skins in 1887 that you received ?
A. " $7. .
Q. " Was that the market price or what you got ?
A. " The best price that I got.
Q. " You got them from what ship ?
A. "The "Favourite."
20     Q. " Then you sold to whom ?
A. "Morris Moss.
Q. " What did you realize for the Behring Sea catch ?
A. "$7.
Q. " Did you sell any for a less price than $7 ?
A. " Yes, sir.
Q. " For what price ?
A. " $5. (But he explains that that was much later in the
season).
'Warren says that in 1887 :—
30 "We shipped the skins to England, between 2200 and
2300, and they netted after payment of all expenses, $6.30."
He explains that in presenting the claims of himself and
other parties for compensation for the cases arising in 1887,
he put the price of the skins at $5.50, but at that time
he had no returns from his shipments, and therefore, inserted
in the claims, the amount that some ofthe buyers were offering
at Victoria, viz.:—$5.50.
It may be noted that George Byrnes in the case of the
"Triumph", 1887, claimed $8 per skin.
40 For the year 1888, the price claimed is $12.25 per skin.
Munsie sold the catch of the " Pathfinder," and netted
$12.25 in London ; see also his declaration in support of his
claim for 1889, where the account sales for 1888 are inserted
in full.
1.874.
1871.
1869.
In 1889 it was shown that the skins were worth $11.00f ; r. 1863,
see evidence of Munsie where he says:—" sold 2326   skins
ex-schooner "Viva", net received, $11.00f.
In  1890   the same witness says,  that skins  were worth r
between $15 and $16.
50     In 1892, skins were worth $14.
line 1.
R. 17J
lin.-l.
4 In
SPECIAL CONDITIONS AFFECTING VALUE OF
THE VESSELS.
R. p. 176,
line 60.
In arriving at the sums to be allowed under the head of
value of the vessels seized, the attention of the Commissioners
is directed to the special conditions surrounding the building
and acquisition ofthe ships in question.
It is admitted that in the years 1886 and 1887, a sudden and
very extended interest in the sealing industry was awakened,
and many persons were found anxious to engage in that occupation who had previously paid little or no attention to it. 10
This state of affairs was caused by the reports of the success
which had attended the voyages of certain vessels in Behring
Sea in the years immediately preceding 1886 ; but the persons
who were thus desirous of engaging in the sealing occupation,
were brought face to face, at that time, with a practical difficulty of great importance to them, viz., that no vessels suitable
for the purpose were for sale in British Columbia. The result
was that every one who was then in possession of a sealing
schooner found that his property was in demand. For instance,
when the " Ada " was brought over from Japan, her owners 20
were almost immediately approached by a would-be purchaser,
who offered $9,000 for her, but Mr. Gray refused to sell; and
so with every other owner of a sealing schooner at Victoria.
These persons had determined to employ their vessels in sealing, and they were consequently not in the market. The ships
required could have been built at Victoria; in point of fact
many of the vessels seized had either been originally constructed or rebuilt at that port, but there were many special
conditions affecting the building of vessels there, which largely
increased their cost over what it might have been had the same go
class of ships been constructed in a place where other conditions prevailed.
The witnesses called on behalf of Great Britain make this
very plain. They all agree that labour was scarce and dear,
$1 and $5 a day being the ordinary-rate of wages for a shipwright. The witness, Walker, who had an extended experience in that business, says that in 1886, in Victoria, in consequence of the scarcity of work, shipwrights had practically to
be imported for every job and left when the particular piece
of work on which they were engaged for the time being was 40
finished.
This fact resulted in a particular increase of expense which
is worthy of note. The witness says that in large places where
a quantity of shipbuilding is in progress, ordinary carpenters,
whose wages are much less per day than that of shipwrights,
may be employed to perform much of the work upon a vessel
under construction. In Victoria, however, at the time in question, when a builder employed a shipwright, he was obliged
86 ttMa
special conditions affecting value of the vessels.
87
to keep him at work continually or lose his services altogether. The consequence was that these skilled labourers
performed not only what pertained particularly to their trade,
but also did all the work upon the ship, in every instance the
account for wages being increased accordingly.
Again, lumber was very expensive, costing as much as $14
per thousand as compared with $8, the price at the present
day.
All fastenings were imported from the United States and
10 paid a high rate of duty. It is true that these articles were for
sale in other parts of Canada, but in those days communication
between British Columbia and Eastern Canada was rare and
difficult This market was little known and in practice not
resorted to. Ship chandlers kept no Canadian goods in stock,
and the result was that about 30 per cent of the cost of a ship
was made up of articles paying a duty ranging from 17J to 25
per cent.
Again, from the fact that onlv a few vessels were built and
at such infrequent intervals, much expense was incurred in
20 matters of detail which would not happen at all under ordinary
circumstances. Fresh models were prepared for every ship,
and time was lost and expense entailed in preparing models
and moulds, and in waiting for their inspection and approval
by the prospective purchaser. When all this was done, suitable
places for working out details had in each case to be specially
arranged for, and generally all the preliminary steps in connection with the construction were taken under circumstances
of considerable inconvenience, and with much more than
ordinary difficulty and expense.
qq There is an abundance of competent and reliable evidence
introduced on behalf of Great Britain, which establishes conclusively that under the circumstances above referred to, vessels
of the class used for sealing could not have been built at Victoria for less than about $1.50 a ton.
R. p. 176,
line 60.
R. p. 175,
line 52.
R. p. 175,
Line 56.
R. p. 176.
line 30.
R. p. 155,
159
167
168
169
188
189
977
1031
1010
1037
15.
40.
56.
20.
20.
50.
30.
v>.
40.
40.
40
Therefore, Capt. Sieward, Munsie, and others who were
desirous of acquiring vessels, began to cast about for a
different market in which their purchases could be made and
they found that their best plan was to buy their vessels
from the fishing fleet in Nova Scotia. It must be assumed
that in so doing they used the prudence and business skill of
men of ordinary capacity. They were perfectly conversant
with the state of things upon Puget Sound and at San Francisco, for the evidence is that they made inquiries at both
those points.
It is certain that by the course adopted they acquired their
vessels at a price less than their actual cost would have been
if built at Victoria.
Munsie says it paid him to bring vessels around in this way.
50 Sieward, in his examination, states that it would have cost
more to build them in Victoria at that date.
R. p
.104,
to.
159.
j. 104,
57.
x 159.
10. 88    special conditions affecting value of the vessels.
All
R. p. 167,
line 41.
Turpel, a shipbuilder of experience, carrying on his trade at
Victoria, stated that the cost of procuring vessels in the way
referred to, was less by the value of the outfit at least, say
$2,000.
The fact, therefore, that men conversant with the shipping
business and having the means to pay cash for what they wanted,
after inquiry and consideration, decided to buy vessels in
Nova Scotia and to bring them around the Horn to Victoria, at
a very large cost and considerable risk, is, it is submitted, conclusive evidence that vessels suitable for sealing purposes could 10
only be obtained at Victoria at prices which at first sight may
appear to be high. BfeaH
CONCISE STATEMENT   OF   FACTS   RELATING TO
EACH   CLAIM.
Under this heading it is proposed to summarize the evidence
relating to, and to tabulate the different items of claim proved
in each case.
1886.
THE  " CAROLENA."
Claim No. 1.
The | Carolena" was a registered British schooner of 32 tons.
The schooner was originally built at Port Franklin, in the
10 United  States,  and was  registered as a British vessel in the
year 1870, but although at the time of seizure she was an old
vessel, as a fact, she was practically rebuilt in 1884 and was as
good as new.
This is shown by the evidence of Robinson, who states that r. p. 153.
"in 1884 he lenghthened the vessel eight feet, and increased
her breadth amidship about twelve inches, and that at that
time they gave her new rigging and a new outfit; and also
a new set of spars."
He says further: " that when this  work was  done,  the
20 j Carolena' was in pretty good condition ; that she was a nice
handy little vessel," and proceeds:—
Q. " Was she worth more than a vessel of the same length r. p. 156.
a new vessel ?
A. " No, worth as much, anyhow. All parts that I know of
her were sound."
Q. I How old was she ?
A. " I don't know."
Q. I If she was twenty-five years old when you lengthened
her would that make any difference in her value.
30     A. " Not if she was sound."
Q. I When you did the work on her did you also put on a R. 157.
new deck?
A. I Pretty near a new deck."
Sabiston, in speaking of the alterations made to the r. p. 209.
"Carolena" in 1884, says, about two-thirds of the hull had
been renewed in the lengthening of the boat. The deck was
also renewed in the same manner. She had to have new rigging, sails and spars, because the vessel was much larger than
she had been.    She was in very good condition.
40     Q. " Well, would you compare her as an old ship or as a
new ship?
A. I She was compared with a new vessel; she was nearly
all new."
Q. "And you think that two-thirds of  her   hull   was
renewed ?
A. "Yes, sir, fully two-thirds.
Q. I There was two-thirds of the deck renewed ?
b s—12 89 R. 210,
line 40.
R. 1718,
line 65.
R. 1719,
line 35.
90
THE CAROLENA.
A. "Yes, sir.
Q. " Any new ribs in ?
A. " The whole new part.
And he further says : —" Nearly two-thirds ofthe sheathing
was renewed, the deck house, and. she had new spars."
So also the evidence of Turner, a witness called by the
United States, is as follows:—
Q. " And as a matter of fact, if you had lengthened the
vessel, and had put new frames in her, you would practically
be making a new vessel, would you not ? 10
A. I Yes, sir.
Q. | And would not the objection then be overcome ?
A. I That objection at all events.
Q. I That would substantially be a new vessel, would she
not?
A. 1 It seems to me she would be a new vessel.
And further on, after expressing the opinion that he
rather objects to the lengthening of the vessel, the following
question and answer appear :—
Q. " And the person who had seen the work done and who
had actually done it in that particular instance would be a 20
better judge than you would be?
A. | Yes, sir, decidedly, if he was competent."
R. 102.
R. 155,
line 8.
R. 159,
line 65.
I
R. 169,
ine 32.
On the question of the value of the | Carolena," therefore,
it may be assumed that in 1886 she was practically a new
vessel. The evidence of the witnesses as to her value, establishes that she was in that year, worth at least $4,000.
Munsie, says, that $4,000 was the fair value of the vessel,
that he paid for her in 1885, $3,800, and put repairs on her
after he bought her; that after she made her spring trip
in 1885, the Dominion Government chartered her for Dr. 30
Dawson, to make a surveying trip on the coast of Vancouver
Island, and Dr. Dawson spoke of buying the vessel for continuing that service.
He further says, the "Carolena" was in good condition
when she left in 1886, and that in that year there was a
demand for vessels of her description, as the sealing interest
was beginning to increase.
Robinson says that in 1884 or 1885, in his opinion, she
was worth $5,000.
Sieward states:— " I am not acquainted with the
" ' Carolena.' " 40
Q. " But from your knowledge of vessels, take a vessel in
1887, suitable for sealing, and of the tonnage of thirty-two
tons or thereabouts, would you consider $4,000 a high or low
valuation ?
A. " I should consider that a very reasonable valuation,
considering the experience I had afterwards in buying vessels.
I will say that in 1891, I paid $3,200 for a vessel about thirty
years old."
William Turpel says: "I know a little about the ' Carolena,'
if she was as good as they say, I should think she would be 50
worth about $4,000." u»ta
THE  CAROLENA.
91
Walker says that after the "Carolena" was lengthened, r. 177,
he measured her for registration and made a thorough ex- me
amination; she had been repaired and some alterations
made. " I think she was made larger; I am pretty sure
there was something in that line ; when I began to measure
her, she was fitted up very nicely. I think she was then in the
hands of the pilots here, and was extra well fitted up at that
time. Her cabin was very nice. She was fitted up specially
on account of the pilots who used her as a pilot boaL It
10 was just after she was fixed up that I measured her. I could
not say much about her lines. She looked very well above
the water line. She had a very good deck, there was good
work done on her the time she was repaired."
Q. I From your knowledge ofthe' Carolena' and your know- r. 178.
ledge and experience of ships and the construction of them,
what would be a fair value for that vessel when you saw her ?
A. " I should say $4,000.
Q. 1 Could you have built a vessel like the   ' Carolena'
at that time for that amount ?
A. I Not with everything on board of her :  anchors and
20 chains, and everything of that kind."
R. 188,
line 10.
R. 199,
line 70.
R. 229.
Alexander Watson:
Q. I Had you any kind or form of opinion as to her value ?
A. " Well, I could see what the vessel was like, but don't
know as I formed any opinion as to her value at that time.
Q. " But from the knowledge that you then acquired of the
vessel what would you estimate her value to be then ? A.—
Of course, the value varies, but I can give a general valuation; it
would be about $4,000, or perhaps a little lower, but somewhere
about that, I mean her market value."
30     Orlando Warner states that the vessel would be worth in
his estimation $3,800, or $4,000, just about there.
John Sabiston says, speaking of the " Carolena" after she r. 210
was lengthened, it would have cost $5,000 to build her as she
then was.
J. D. Warren, a man of great experience in sealing matters,
says he knew her when she was in possession of the pilots, had
seen her frequently, and is able to speak of her rigging and
build. She was a very good vessel, small size ; one of those
sharp built seagoing models.    She was considered a very good
40 sailer.
He further says that the pilots spent a great deal of money
on her in 1884 ; they put her on the'slip where they cut her in
two, hauled the two ends apart, and built a section in between.
He knew the "Carolena" in 1886, was aboard of her in
that year and would consider her as she then stood ready for
sea, worth $4,000, and that would be a fair value.
Charles Spring says he knew her and considered her worth
$3,800 or $4,000. In 1886 her hull was valued for insurance
purposes at $4,000.
R. 241,
line 10.
I
!
ko    The " Carolena " at the time of the seizure was owned by r. 97,
ou , line 42.
William Munsie. I
92 THE  CAROLENA.
R. 26i, With regard to her equipment for catching seals, attention
is called to the fact that the hunters on board the " Carolena "
were picked men, probably amongst the best hunters engaged
in the business.
r. 380, Cotsford states that he himself was a particularly good shot;
that Ned Shields, another hunter, was a very good shot ; Jos.
Dupont, another hunter, was a very good shot; and that
McConahey, the fourth hunter, was also a good shot, but not so
well accustomed to the canoe as the others.
Several other witnesses speak ofthe hunters on the Carolena 10
as expert hunters.
It was suggested that the " Carolena" being manned with
white hunters using canoes, her equipment was not so good as
if she had had boats manned with whites, or canoes manned
with Indians. Several witnesses were examined on this point
and it was shown that as a rule white men do not handle
canoes as successfully as Indians because of want of training.
The evidence is that in the case of the | Carolena " the hunters
were experts in the management of canoes, and were equal to
any Indian in that respect, and further that if white men were 20
accustomed to them, canoes so manned were in some respects
better than boats.
R. 381, Cotsford says :—
line 34. J
" So far as the canoe was concerned, that did not trouble
| me at all. I was just as much at home in a canoe as any-
" where else. I have been accustomed to most all kinds of
I small craft; racing craft, light going boats and canoes of all
§ kinds ; anything that will float on the water."
, " Sheilds was about the same. Dupont was not as handy as
" Sheilds in a canoe, but he seemed to be quite.at home in a 30
I canoe for all that. McConahey was not quite so good in a
I canoe. He did not like them quite as well." * % ^
" In some respects, canoes, if properly handled, are better to
I hunt in than boats, as they cover more ground."
R. 319, W. D. Byers says :—
line 41. J J
1 A canoe manned with two white men would be about
I equal to a boat so far as covering ground is concerned. Pro-
I bably the canoe would have a little the best of it."
Again he says that a canoe will stand as much sea as a boat
and hunt in just as rough weather.
R- 268, Bragg says :—
line 10. &&      J
R. 268. I Others things being equal the man that covers the most 40
" ground will get the most seals. I think a canoe would go
" farther in a day than a boat with two good men in her. If
" the canoe was rigged with rowlocks and oars, two good men
| in a canoe would go over more distance than a boat with a
" boat-puller and steerer."
R. 267, He also says that the hunters on the " Carolena " had a
line 12. :
good reputation.
r. 269, He says again :—
}ine 49, J       &
| Canoes will stand rough weather," THE  CAROLENA.
93
After sealing on the coast in the spring of 1886, the
" Carolena" left in the month of June fully equipped and
provisioned for a sealing voyage in Behring Sea. She had
four canoes and a stern-boat. Her crew consisted of a master,
whose name was James Ogilvie, and a mate, James Blake,
and a crew of four hunters and five seamen.
It was intended that she should remain in Behring Sea as r. 131,
long as possible, at least until after the end of August, and she me 10"
was fully equipped and provisioned to remain for that period.
10 On the 1st day of August, at about 6 P. M., whilst in Behring
Sea, at a distance of about 65 miles from the nearest land she
was seized by the United States Revenue Cutter " Corwin."
At the time of seizure she had on board 685 seal skins, 12
grey pup skins and one hair seal.
The facts relating to the seizure are detailed in a report
dated 7th August, 1886 that Captain Abbey made to the
Secretary ofthe Treasury as follows:—
"OnSunday, August 1st, 1886,while cruising about 65 miles
" south-east of St. George Island, the British schooners ' Thorn-
20 " ton' and ' Carolena' were found with boats down engaged
" in getting fur seals, as each boat was taken in the act, and
" had freshly killed seals on board, the schooners were seized
" for violation of section 1956 of the Revised Statutes, and
" taken in tow to Ounalaska."
And again in the log of the Revenue Cutter " Corwin " the
following  appears :—
1 7.30 P. M. Stopped and seized the schooner ' Carolena'
" of Victoria. Took all arms and ammunition on board the
" ' Corwin.'   Position of the
0  10'  west ; Latitude 55
30 " Longitude  168
' Carolena,' when she was seized,
0 30' north."
At the time of seizure she was carrying the British flag, and
was on good sealing ground and had good weather.
John Cotsford says:—" We were all day after the seals on r 384,
' the day when we were taken. We were catching them. I lmel°-
' had some in my canoe, and I believe the others had also. I
f think Ned Shields had the most. I think that he (Shields)
' had thirty-four, but I am not sure ; I think that is the
\ number he had. I don't know the number I had, but I
\ think it was under twenty. I consider thirty-four seals as a
g •' very good day's shooting for one boat. Twenty is a very
' good day, and fifteen is a good day, too.
He proceeds:—" I think we were sealing the day before, and
' on the day before that too. We were then in the same place.
' We were becalmed three days before we were seized, and
' we caught seals every day ; we were doing very well We
' had not finished our sealing that day when the seizure took
'place. We would have gone on more, and had a fair chance
' of catching more seals."
And again he says :—" We caught 76 the day of seizure."     R. 393,
° J ° line 31.
This is corroborated by the log of the " Corwin," where it is
stated :—
"The British schooners 'Thornton' and ' Carolena' were
"found with boats down engaged in killing fur seals, as
" each boat was taken in the act and had freshly killed seals
" on board."
1
50 94
THE  CAROLENA.
R. 51.
See also evidence of J. H. Douglass, a witness examined in
the prosecution of the " Carolena " at Sitka, who says :—
" During this season from May till November, the fur seal
" are plenty in the waters adjacent to the Pribiloff Islands and
"are migrating to and from these Islands, and are at all
I times very plenty between Unimak Pass and said islands in
I a track about 30 miles wide, which seems to be their high-
" way to and from said islands. The schooner ' Carolena' and
I her boats when seized were directly in this track. I was present
I at time of seizure." 10
From this it appears that at the very time of seizure, the
"Carolena" was on good ground and was making large
catches.
R. 583,
line 44.
R. 391,
line 10.
Ap. "B"38.
R. 382, After seizure, the " Carolena " was towed to Ounalaska. On
arriving there the canoes and boats were taken ashore and
never brought back; the master, mate and crew remaining on
the schooner at a short distance from the " Corwin." They
were, however, told that half the crew could go ashore at a
time. After having been kept at Ounalaska for abount ten
days the crew of the 1 Carolena " were sent to San Francisco 20
on the American steamer " St. Paul."
At Ounalaska a considerable quantity of provisions were
transferred from the " Carolena " to the steamer | St. Paul"
of which no inventory appears to have been taken by the
United States authorities. The crew were put to a consider-
R. 102, line 2. a"b]e expense in going to San Francisco, and also whilst at San
Francisco, and in going from there to their homes, part of
which was paid by the owner and part by themselves individually.
The master and mate were taken under arrest to Sitka and 30
there on the 25th August, 1886, a criminal charge was preferred
against them for having killed fur-seals within the limits of
Alaskan territory and in the waters thereof; on the 28th
August were arraigned, pleaded not guilty and admitted to
bail on their own recognizance in an amount of $500 each to
stand their trial for said offence. James Blake was tried on
the 6th September before a jury, found guilty and condemned
to 10 days' imprisonment. He retained a counsel for his defence at a considerable expense.
James Ogilvie after he was admitted to bail and before the 40
day of trial, wandered away into the woods and was afterwards
found with his throat cut.
The I Carolena," her tackle, apparel, canoes, boat, cargo and
furniture were, on August 28th, libelled in the United States
District Court of Alaska at the instance of the United States
District Attorney.
Her owner appeared by counsel, and after trial the vessel
and everything seized was, on October 4th, condemned and
declared forfeited to the United States.
The seizure having given rise to the diplomatic correspon- 50
dence previously referred to, the United States Government,
on January 26th, 1887, ordered the vessel to be released. *■
THE CAROLENA.
95
This order not having been obeyed by the United States R. 105,
Marshal to whom it was addressed, additional correspondence
took place, and it was not until after December, 1887, that the
owner was informed by letter of the United States Marshal
that her release had been ordered.
The vessel had, in the meantime, remained uncared for on
the beach at Ounalaska and had become a wreck.
Had the seizure not taken place, or had the vessel been
restored in time, her owner would have used her for the sealing
10 in 1887, both on the coast and in Behring Sea.
Her Britannic  Majesty claims the following damages as
resulting from the premises:
20
30
40
Value of Vessel $
Flag	
Four eanoes and outfit	
One boat 	
Nautical instruments	
Cash (Ogilvie)	
Six shot guns at $50	
Five rifles at $30	
Belyea's biU	
Willougbby Clark, charges at Sitka	
Insurance	
J. D. Warren, expenses to Ottawa, putting in claim....
Time and personal expenses of owner	
Two tanks for water and labour putting in	
Twelve water barrels at $2.50	
Expenses Mate Blake to Victoria 	
Tranbport of crew and expenses at San Francisco, paid
by Munsie	
Expenses remainder of crew, say.
Chronometer	
Say one-half slop chest	
Four gaffs at $2	
Two spears at $3	
• Estimated value of provisions and ammunition which
would have been left after a full voyage, say	
Articles contained in voucher No. 1 B. (these not being
consumable and on board when seizure took place)..
Articles contained in voucher No. 4 B. charged for same
reason 	
Following items from voucher No. 6 A.:—
Monkey wrench  $1 25
One„compass  7 50
Five pairs 7-foot oars..           8 75
Five pairs rowlocks  2 50
Two compasses at $3  6 00
4,000 00
12 00
248 00
100 00
75 00
500 00
300 00
150 00
750 00
5C0 00
352 00
152 00
250 00
149 62
30 00
100 00
71 72
50 00
160 00
100 00
8 00
6 00
200 00
14 00
9 79
26 00
I 96
THE CAROLENA.
Voucher No. 8, one lantern	
do       9, three straps for tanks.
11, one rifle	
13, sundries	
14, spirit compass	
14, brass compass.	
18, charts, &c	
29, demijohns	
do
do
do
do
do
do
do
42, one set reloading tools,  $4.25;  biass
shells, one-half value, $5	
do       43, two doz. 5^-inch knives.
One pair sweeps	
One cooking stove	
Bedding , 	
Estimated value of articles that were doubtless on board
vessel, but which cannot now be specially mentioned,
say	
Number of seals on board of vessel when seized, 685 at $7
Twelve pups at $2	
Balance of estimated catch, 1886, from 1st to 31st Aug.
four canoes and one stern boat; 994 skins at $7
each	
Net value of approximate catch for 1887, say	
Expenses and hardship of crew, 9 men at $500, each....
For illegal arrest, detention, imprisonment and other
hardship, of James Ogilvie, Master of "Carolena".
For illegal arrest, detention, imprisonment and other
hardship, of James Blake, mate of " Carolena ".	
1 00
8 04
10 00
18 75
22 50
5 25
26 25
3 58
9 25
3 50
5 00
75 00
110 00
200 00
4,795 00
24 00
6,958 00
5,000 00
4,500 00
4.000 00
4,000 00
$38,089 25
Interest on all above amounts at the rate of 7 per cent
from the date of loss until time of payment.
10
20 n
1886.
THE "THORNTON."
Claim No. 2.
The "Thornton" was a registered British schooner.
The register ofthe steam schooner " Thornton" shows she Ap. b. 101.
was first registered in 1861; and that she was registered again
in 1871 as a sailing sloop. She was 51 feet and one-tenth of a
foot long, 19 feet 2 inches broad, 5 feet 1 inch in depth ; her
registered tonnage was 29-36 gross, and her owner was James
10 Douglas Warren, of Victoria.
The vessel was measured by W.  Walker, the surveyor, Ap. B. 103.
for purposes of registration as a steam schooner in 1885.
The deductions made in such measurement in allowing R. 956.
space for steam power, reduced the net registered tonnage to
22-30 tons.
Captain Warren bought the vessel in 1864 at the rate of r. 904.
$1,800.    She was turned into a schooner in 1877; had a white
oak frame, natural crooks, and a bottom of cedar planks, the
rest of the material consisting of Douglas fir.
20     After making a trip as a schooner she was practically rebuilt
and made a new vessel, fastened with copper from the water
line down.    She  was  also  coppered.    Exclusive  of Captain r. 905.
Warren's own time, which he gave in supervision and work,
the expenditure for rebuilding the " Thornton " amounted to
$3,500.
She was overhauled every season carefully. ' Cook, a ship- r. g29.
wright and proprietor of shipyards for many years at Victoria
describes the work done in the rebuilding, and the care with
which it was done, and states that when this work was com-
30 pleted she was practically a new ship.
Cook values the ship in 1881, without her steam power?
at about $5,200. He testifies to the care taken of her by Captain
Warren, and that the vessel was in as good condition as ever in
1886, when he last saw her.
Walker, shipwright and proprietor of shipyard, valued
the vessel in 1886 at $6,000, and he testifies that in that year
she was in good condition.
Warner agrees.
In 1881 auxiliary steam power was placed in her at a cost
40 of $3,000.
Thomson, Inspector of machinery and boilers for the province
of British Columbia, produced the official inspection record of
this vessel, and explained that the nominal horse power being
(1.21) for purpose of registration, represented a real horsepower
of from 13 to 15, and having read the description of the boiler
b s—13 97
R. 830.
R. 837.
R. 840.
R. 905.
R. 987.
R. 989. 1I
R. 990,
pine 63.
R. 991.
R. 1091.-
R. 1017.
R. 992.
R. 1028-29.
R. 964.
R. 965.
R. 1610.
98
THE  THORNTON.
R. 905.
R. 946.
and engine in the record, gave the opinion that it would have
cost from $2,600 to $2,700 to construct them. Asked in cross
examination whether he would say that the boiler and engine
having been in use, would sell for anything like 7£ per cent off
$2,700, he answered.
"I have no doubt in the world it would." Asked his reason
for that he explained that from the report it would appear
that everything was in excellent condition.
Grant, chief engineer ofthe Government steamer " Quadra,"
corroborated Thomson's statement. jq
Bullen, for seven years manager of the Albion Iron Works,
who had practical knowledge of the building of machinery, and
the cost of engines and boilers from 1880 to 1892, states that
it would be worth $2,950 to put the engine in the "Thornton,"
exclusive of the carpenter's work.
Gray, the owner and proprietor of the Victoria Machinery
Depot, and inspector of boilers and machinery for the Government in 1882, having before him the inspection record ofthe
| Thornton " already referred to, testifies that he personally
inspected the boiler and engine of the " Thornton " ; that the 20
record was in his handwriting, and that the cost of putting
the boiler and engine into her would be $2,600, that would
represent simply the cost of putting the engine and boilers and
necessary machinery in place; it would not include any carpenter work in connection with it.
Lewis, some time agent of the Department of Marine and
Fisheries at Victoria, and marine surveyor for underwriters
in San Francisco, produced the survey of the " Thornton "
made by him in 1883 for the insurance company. From thi8
report, corroborated by Lewis on the stand, it appears that in 30
November, 1883, the " Thornton I was reported sea-worthy
and in good condition. He explained that this report signified
that she was in first-class condition.
Cavin, shipwright, surveyed the "Thornton" in 1883 for
purposes of insurance ; saw her in 1886 ; observed no difference
between her in that year and in 1883. Values her at between
$5,000 and $6,000.
He states that he did not think $5,000 or $6,000 could replace her with her machinery; that he had not her machinery
in mind when he valued her. ^q
■ William Sleightholm worked on this ship as ship carpenter
on and off for 20 years. He values the vessel at $5,000 before
the machinery was put in. He worked on the vessel after the
machinery was put in, and values the machinery and all at
something over $7,000.
Norman, mate and engineer of " Thornton " in 1886, testified that the condition of the engine and boiler of the '' Thornton " was good. " The engine worked nice and smooth, fed all
right and drove about 5 knots."
The " Thornton " was used by Captain Warren in the winter kq
and fall for coasting purposes. sata
THE THORNTON.
99
The hull and machinery were insured at Lloyds for $5,838, r. io89
from the 1st March, 1886.
The assistant-treasury agent of the United States in 1890,
reported to the chief treasury agent of the United States
Government at the Seal Islands that the vessel at that time
was in a dilapidated and ruined condition. He further reports:— r. 966.
" I should think when new that $7,000 would be a fair price
for her."
It is claimed that $7,000 is a fair valuation under the cir-
10 cumstances for this steam schooner at the time of her seizure.
Captain Warren managed a fleet of sealing vessels in 1886,
composed of the " Thornton ", " W. P. Sayward ", " Anna
Beck ", I Grace " and " Dolphin ". All these vessels were
engaged in coasting and sealing in 1882. In 1883, the " Anna
Beck," "Thornton" and "Sayward" were so engaged.
In 1884 he had the same five out sealing; in these years
their sealing operations were confined to the coast.  He superintended the fitting out of the vessels on all of these occasions ; he thoroughly understood outfitting and always took
20 care that they never ran short of provisions.
In 1886, Warren fitted out the five vessels named for sealing,
as well as the " Rustler." The " Rustler," however, did not
go into Behring Sea. Four of the five vessels named returned
safely to port at the end of the sealing in 1886, without having
been actually seized; but having heard of the seizures their
voyages were seriously interfered with on account of fear of being
seized themselves.
The "Thornton" was seized in that year; she was fitted
out for the coast sealing in the spring and Warren supplied
30 her for the Behring Sea trip at Clayoquot. The amount of
provisions actually put on board her there, namely, about $533
would not represent all that he proposed to put into the
"Thornton" for provisions that season; he had arranged to
take and did take extra supplies on board the " Dolphin" to
give the " Thornton" in Behring Sea, the latter being a small
vessel and cramped for room. He arranged for a place of
meeting in order to give them the additional supplies; his
custom had been to work his vessels so that they could assist
each other whenever required; they hunted on the coast
40 together, and they entered the Behring Sea about the same
time. He intended to remain in Behring Sea until the end of
September in 1886, and his supplies were arranged accordingly.
Vessels coming home usually had supplies over, canned goods,
&c, which could be used, for another season. His ship the
I Dolphin " was only 60 miles from the " Thornton" when
the latter was seized ; they were fishing the same grounds,
south of the Pribilov Islands; he had plenty of supplies for
the " Thornton " if she required any, on board the " Dolphin."
The crew consisted of 13 men besides the master, Captain
50 Guttormsen, and Mate Harry Norman, who acted as
engineer as well.
R. 907.
908.
909.
R. 910. 100
THE THORNTON.
App. B. 95. The " Thornton" sailed on her Behring Sea trip on the
27th May, she carried four sealing boats and a stern boat, she
reached Behring Sea, July 2nd, began sealing July 4 th ;
continued sealing until seized.
ibid. 98. On the 1st August, when the boats returned with 33 seals
the "Thornton" was seized by the cutter "Corwin"; an
officer was put on board, arms and ammunition were taken
and the British flag was ordered down, the vessel's position
being that day recorded in the log, latitude 55.38 N., longitude 168*20 W.; the weather was calm and clear; vessel was 10
taken in tow by the cutter to Ounala*ska, where a watchman
from the cutter was put on board, and the cargo taken ashore.
On the 2nd August an officer from the cutter came on board
and took the ship's papers; the watchman from the cutter
remained on board; all the boats were taken on shore from
the schooner.
Captain Abbey on the prosecution at Sitka testified as follows :—
App.b. 83.        "I found the four boats  of the  British  steam  schooner
"' Thornton' of Victoria, B.C., engaged in killing fur seal. 20
" Each boat had in her from three to eight freshly killed seal,
" arms and ammunition, rowers and hunters, who stated that
" they belonged to said schooner ' Thornton,' and were
" engaged in taking or killing fur seal. Some of them, if not
" all, were seen shooting at the fur seal which were swimming
" in their neighbourhood."
Lieutenant Rhodes:—
ibid. 84. " I was on the 'Corwin' at the time the 'Thornton' was
" seized on that day. We first picked up a boat bearing the
"■name'Thornton.' It had about eight dead fur seal in it. 30
" The men in the boat hadbreeehloading rifles. We afterwards
" picked up another boat, and then sighted the schooner' Thorn-
" ton,' and went on board, and was put in charge of her. We
" afterwards picked up two more boats. The men in the
" boats claimed that the boats belonged to the ' Thornton'
" and were put on board of her. There were between fifteen
" or twenty dead fur seal on deck and one hair seal. These
" seal were, the most of them, bleeding, and evidently recently
" killed. The Captain and several of the hunters said they had
" killed twenty-one, I think it was fur seals that day, and would 40
" have got more if they had had more day light, and if the cutter
" had not come up."
On August 4th an officer from the cutter returned one boat
and gave four of the " Thornton's" crew liberty to go ashore
from 8 A.M. to 6 P.M. each day; watchman remained on
board.
App. b. 99.        August 10th, an officer from the cutter came on board and
took provisions from the " Thornton," of which an inventory
appears taken from the log R. 935-936, for use ofthe United
States in transferring prisoners to  San Francisco on board 50
steamer "St. Paul."
August 11th, an officer from the cutter came on board and
took two Indians who were on the "Thornton" and sent them
to Sitka in the schooner " San Diego," they also took one of
the schooner "Thornton's" boats. THE THORNTON. 101
August 12th. They were ordered to get their grub on board
the cutter.
August 13th. The schooner "Thornton" was stripped and
left without a watchman on board.
From August 15th until August 24th, the captain and mate
were on board the " Corwin," no permission being given them
to go ashore.
Angust 25th. The master and mate were taken on shore and
brought before the court, charged with having violated the
10 laws of the United States in sealing in Alaskan waters. The App. b. ioo.
captain retained Mr. Clarke, an attorney, to act for him in his
case for $500, giving an order on Captain Warren for that
amount.
On August 30th, they were tried by a jury; on the 31st, App. B. 80.
on a verdict of guilty, the captain was fined $500 and sentenced
to  30  days'  imprisonment;   the mate  $300 and  30  days'
imprisonment.
Referring to this, Captain Abbey's report Sept. 22nd, 1886,
to the Secretary of the Treasury says :—" The masters and
20 mates of the seized sealers were all criminally convicted and
sentenced to various terms of imprisonment and fines."
The master and mate were in jail from the 1st to the 30th
September, when they left Sitka in the " Idaho," arriving at
Victoria on the 10th October. During their detention at Sitka,
they were temporarily allowed out of jail, accompanied by
one of the marines as a guard; they were not allowed to
go out without him; when they were released from jail no
provision was made for them and they were penniless; the
mate had to sell his watch to get something to eat.
30 Captain Warren paid the passage of the master and mate, r. 916.
amounting to $100.
The crew were sent to San Francisco by the United States r. ieii.
authorities on the " St. Paul."
No provision was made for the master or mate for sleeping r. 1612.
on the cutter; they were given neither bunk nor hammock.
The " Thornton," her tackle, apparel, boats, cargo, and furniture were libelled in the court at Sitka, by the United States
District Attorney on August 28th.
Her owner appeared by counsel, and after the trial the pro- App. b. 89.
An perty seized was on the 24th October, 1886, condemned and
declared forfeited to the use of the United States.
The seizure having given rise to the diplomatic correspon- r. 67.
dence already referred to, the United States Government on
January 26th, 1887, ordered the vessel to be released. This .
order not having been obeyed by the United States Marshal
to whom it was addressed, additional correspondence took
place and it was not until late in 1887 that the owners were
informed that her release had been ordered.
The vessel had, in the meantime, remained uncared for on r. 914.
50 the beach at Ounalaska and had become a wreck.
Had the seizure not taken place, or had the vessel been
restored in time, the owner would have used her for trading HBBi
102
THE  THORNTON.
R. 910.
R. 966.
R. 911.
R. 967-8.
R. 910.
R. 912.
R. 1089.
R. 916.
Ap. B. 84.
in the winter and for sealing both on the coast and in Behring
Sea during the year 1887.
Her Britannic  Majesty claims the following damages as
resulting from the premises:
Value of vessel....  	
Flag  	
3 rifles, (Marlins) at $45.70	
1 Rifle	
6 shot guns at $36 each	
Gun implements and tools, say.
Slop chest, say	
Value of articles in inventory not properly belonging to
the ship, on board at time of seizure	
Estimated value of articles which were doubtless on board
but which cannot now be specifically mentioned ...
Extra suit of sails	
4 sealing boats	
Water casks	
Coal	
Water tanks	
Premium of insurance paid	
Bedding	
Cost of defence at Sitka	
Passage money for master and mate
Fee to counsel, and for other legal expenses in connection
with the preparation of claims	
Travelling, hotel and other necessary expenses in connection with the said seizure and claims	
Earnings of   '' Thornton"  for  coasting and  boarding
purposes for 3 months at $300...  	
Expenses and hardships of crew, 13 men at $500 each....
403 skins at $7 each, actually seized	
Balance of catch for the remainder of the season (4 boats
from August 1st to the end of that month 994 skins
at $7 each ,	
Estimated coast and Behring Sea catches for the year
1887 (net value of)   	
For illegal arrest, detention, imprisonment and other
hardships of Captain Guttornisen, master of '' Thornton " and expenses incurred in consequence thereof..
Ditto as to Harry Norman, mate and engineer of the
" Thornton "	
7,000 00
12 00
137 10
22 00
210 00
9 00
125 00
439 94
200 00
307 00
600 00
12 00
20 00
90 00
410 00
40 00
500 00
100 00
750 00
1,000 00
900 00
6,500 00
2,821 00
6,958 00
5,000 00
4,000 00
4,000 00
$42,163 04
10
20
30
Interest on all above amounts at the rate of 7 per cent
per annum from date of loss, until time of payment n
1886.
THE "ONWARD."
Claim No. 3.
The I Onward " was a registered British schooner, of 35-20 Ap. B. 104.
tons gross.
After sealing on the coast, she left Kyuquot in the beginning R 830,
of June, fully equipped and provisioned, on a sealing voyage r*^'
to Behring Sea. R-p8?J>
© line 6i.
According to Marketich, she had eight canoes and a stern r. 71, ime 3c.
10 boat, a crew of 20 men all told, 4 white and 16 Indians.   It,
however, appears from the Record of Proceedings, at Sitka, Ap. B 70,
and otherwise, that there were 9 canoes and 18 Indians. Daniel Ap! B 55
Munro and John Marketich were respectively, master   and rjJJj'
mate. line u'
Before her departure, the master had been instructed by R 864,
the owner to continue sealing as long as possible, to be back r. 893,
some time in September, and to be guided in a measure by ine '
Capt. A. McLean, at that time on the schooner " Favourite".
The " Onward " commenced  sealing in Behring Sea on the R. 79, line 63.
20 12th July.    After she had taken 507 skins in Behring Sea R- 79>line 2S-
they were transferred to the " Favourite."    Between the time jf^ f{_73,
of transfer and the 2nd August, when she was seized by the Ap. B. 51,
United States Revenue Cutter   " Corwin,"   400  more  seals
were taken.
The schooner was seized carrying the Bristish flag, between R. 80, line 38.
5 and 6  o'clock A.M., at a  distance of 115  miles from the line 36.   '
nearest land, " on a well-known sealing ground." jf^ ^ 54'
The day before the seizure, about 100 seals had been killed, R 72.
and at the time of said seizure, there were lots around, the
30 weather was fine and the crew was about to lower the canoes.
A prize crew of three men from the " Corwin " was put in r. 72.
charge ofthe schooner : the arms and ammunition were taken on ap- b. 63,
i 1 it "ne ^3.
board the cutter; the  master, mate and crew were ordered
down into the cabin and hold, and the vessel was towed to
Ounalaska.
On arriving there, the canoes and boat were taken ashore r. 72.
and never brought back, the master, mate and crew remaining
on the schooner at a short distance from the " Corwin."   They
were, however, told they could go ashore tour men at a time.
40     After having been thus kept therefor about 10 days, the R, 73.
mate was ordered to take 10 or 12 days' provisions from the
" Onward" for himself and the crew, and to go aboard the
schooner " San Diego " also under seizure, which was done. r. 893,
Provisions were also transferred from the " Onward " to the
American steamer " St. Paul" at Ounalaska.
103 II
104
THE ONWARD.
<
R. 73.
R. 73.
R. 893.
R. 894.
Ap. B.
line 38.
Ap. B.
line 64.
38
Ap. B.
R. 74.
R. 886, line 8.
Ap. B.
99.
R. 6'
I. 873,
ne 25.
R. 869,
R. 863,
line 10.
R. 863,
line 50.
They were then taken from Ounalaska to Sitka, a 12 days'
journey.
The accommodation they had on the " San Diego " was very
poor, she was old and leaky, and about 30 men had to sleep on
their own blankets upon the floor in a small cabin.
At Sitka, the crew was set free and a few days later, all, but
the master and mate, were taken to Nanaimo by the " Corwin"
and put ashore at 5 o'clock P.M. without any supper, or any
thing else. From there, they had to find their way to Victoria, as best they could, and one of them at least (Harkin), 10
had to leave his bag and bed and what he had as security for
his passage. He did not arrive at Victoria until the 25th
September or the 1st of October.
The master and mate were detained under arrest at Sitka.
On August 25th, a criminal charge was brought against
them of having killed fur bearing animals within the limits of
Alaskan territory and in the waters thereof; on August 28th
they were admitted to bail on their own recognizance to an
amount of $500 each, and finally, on the 6th of September,
placed on trial before a jury, addressed as robbers by the 20
6 & 7. judge, found guilty and both condemned to 30 days imprisonment, and in the case of Capt. Munro, to a fine of $200 in addition.
They were tried separately and both had to retain counsel
at a considerable expense.
When released, they both had to find their way home as
best they could.
The " Onward," her tackle, apparel, boats, cargo and furniture were on August 28th libelled in the Admiralty Court at
Sitka by the United States District Attorney. 30
Her owner appeared by counsel and after trial the property
seized was, on October 4th, condemned and declared forfeited
to the use of the United States.
The seizure having given rise to the diplomatic correspondence previously referred to, the United States Government, on
January 26th, 1887, ordered the vessel to be released.
This order not having been obeyed by the United States
Marshal, to whom it was addressed, additional correspondence
took place and it was not till December, 1887, that Charles
Spring, as owner of the " Onward," was informed by letter of 40
the United States Marshal that her release had been ordered.
The vessel had, in the meantime, remained uncared for on the
beach at Ounalaska and had become a wreck.
Had the seizure not taken place, or had the vessel been
restored in time, her owner would have used her for sealing
in 1887, both on the coast and in Behring Sea.
The " Onward " was built in 1871, of Oregon pine ; she was
galvanized fastened, a good sailor, well kept, put on the ways
on several occasions, for the last time in 1886, when she. was
in first-class condition with brand new sails. 50
Chas. Spring, her owner, values her at least at $4,000 in 1886.
He says she was fully worth that and he would not have sold her
58 to m
THE  ONWARD.
105
R. 853.
for that sum .at any time during 1886. H. J. Cook, an ex
perienced ship builder and owner of ways at Victoria, who repaired the I Onward" in 1878, 1881 and 1886, estimates her
cost at between $4,000 to $5,000.
Orlando Warner places the same value on the ship. r. 855.
Samuel Sea, also a ship builder of large and long experi- r. 856.
ence, who was familiar with the " Onward," values her hull,
spars, sails, stern boat, anchors and everything of that kind at
about $4,500.
10     Alexander Watson, jr., values the vessel at $4,325 to $5,000 R. 858.
without her sealing outfit.
Walter Walker places the value at $4,000.
R. 859.
Her Britannic Majesty claims the following damages as resulting from the premises :—
Value of vessel	
Premium of insurance paid	
Nine canoes at $28	
Twelve guns at $25	
One sextant	
20               Value of other unconsumable sealing outfit as detailed
in Spring's evidence..  ^v>	
30
40
Bedding, 4 at $10.
Estimated value of provisions, ammunition, ship chandlery, etc., remaining over at end of ordinary voyage
Estimated value of articles which were doubtless on
board vessel, but which cannot be specifically men
tioned	
$4,000 00
240 00
R. 809.
252 00
R. 863.
300 00
R. 865.
25 00
262 10
R. 865-
40 00
R. 241,
line 11.
200 00
Cost of defence of Sitka	
Passage of Capt. Munro.   .  ..
do       John Marketich .
Money given to Indians	
Paid Capt. Warren in connection with the presentation
of the claim at Ottawa	
Belyea's charges	
Personal expenses	
Expenses and hardships of crew, 20 men at say $500...
Four hundred skins at $7	
200 00
500 00
50 00
42 00
15 00
152 00
1,000 00
3u0 00
10,000 00
2,800 00
10,192 00
7,000 00
45,570 10
Balance of catch for the remainder of the season of 1886 ;
(nine canoes from August 1st to end of month)
1,456 skins at $7	
Net value of estimated coast and Behring Sea catches
for the year 1887	
For illegal arrest, detention, imprisonment and other
hardships of Munro, master of " Onward," and for
expenses incurred in consequence thereof     $4,000 00
For illegal arrest, detention, imprisonment and other
hardships of John Marketich, mate of " Onward,"
and for expenses incurred in consequence thereof...      4,000 00
R. 870.
R. 870.
R. 74-5.
R, 871.
R. 871.
R. 870.
50
Interest on all above amounts at the rate of 7 per cent per
annum from date of loss until the time of payment.
B s—14 Ap. B. 186.
R. 1302,
line 40.
R. 1302.
R. 1302,
line 60.
R. 1304,
line 31.
App. A. 13.
R. 1326.
1886.
THE "FAVOURITE."
Claim No. 4.
The " Favourite " was a registered British schooner of 80
tons gross.
Towards the end of May, 1886, the " Favourite " sailed from
Victoria, B.C., bound on a sealing voyage to the North Pacific
Ocean, and Behring Sea, fully equipped and provisioned.
Her provision bill amounted to $1,160.34, and the slop chest
to $255.01. io
Her master, Alexander McLean, was instructed by the
owner to remain in Behring Sea as long as the weather would
permit.
She carried a crew of 26 men; 6 white, and 20 Indians, 10
canoes, and one stern boat.
In their answer to the claim of Her Britannic Majesty, the
United States Government admit " that on or about August
" the 2nd, 1886, at a distance of 115 miles from the nearest
"land, the 'Favourite' was hailed by the United States
" revenue cutter ' Corwin' and warned to cease sealing in oo
" Behring Sea and ordered to leave Behring Sea; and that the
"' Corwin' was a public armed vessel of the United States
" acting under instructions of that Government, to seize all
" vessels engaged in killing fur seal in Behring Sea, after giving
" due notice; and that the ' Favourite' when warned and
" notified was engaged in fur sealing or prosecuting a voyage for
" that purpose, and that the action of the said ' Corwin' in so
" warning and notifying the said ' Favourite' was adopted by
"the Government of the United States."
The warning took place about two o'clock A.M. qq
The " Favourite" commenced sealing in Behring Sea on
July the 9th, and at the date of the warning, she had 2151
seals on board, 507 whereof had been transferred from the
" Onward."
The following extract is taken from the log of the " Favourite" under date August the 1st: " Midnight, an American
" steamer spoke us; she had three schooners in tow and gave
"us warning from sealing in Behring Sea. # # # This
" day ends with fine weather and light north wind.    Latitude,
" 55°17
Longitude, 168°17'.
40
From July the 9th, when the " Favourite " commenced sealing in Behring Sea until the night of August the 1st, when
she was warned as above, 24 days, she remained practically in
the same position and took 1817 seals, an average of 75J per
day. She evidently was tempted to continue sealing on the
same ground on the 2nd and 3rd days of August, and her
106 n
THE FAVOURITE.
107
catches for these two days were 118 and 142 respectively.
She then commenced to change ground (no doubt to avoid the
cutters and save the large catch she had already made, and the
507 skins she had of the " Onward,") and lowered only two
days afterwards, viz.: on August the 10th, when she took 125,
and on August the 19th in the Pass, where she took 62 seals.
The " Mary Ellen " and the " Vanderbilt" were sealing in
Behring Sea in 1886; the former until August the 25th, and
the latter until the 30th of the same month; the last lowering
10 day being the 29th.
The " Mary Ellen " with four boats and the stern boat,
lowered her boats after August the 3rd, with the following
result:—
On the 4th, 6 seals ; on the 7th, 92 seals ; on the 8th, 60
seals; on the 9th, 82 seals; on the 11th, 18 seals; on the 15th,
25 seals ; on the 19th, 141 seals ; on the 21st, 58 seals ; on the
23rd, 37 seals, and on the 24th, 30 seals.
Alex. McLean, examined as to how long he had intended
to remain sealing, says :—
20     Q- " Was it your intention to remain sealing for as long as
the sealing would be good ?
A. 1 Yes, sir.
Q. " And as long as there would be seals ?
A. " Yes, as long as I would be justified in. sealing there.
Q. " And you had enough provisions on the vessel to enable
you to do that ?
A. 1 Yes, I believe I had.
Q. " And you could have remained until the 1st of September ?
30     A. " Yes, sir, if the weather would permit."
It being shown that the weather permitted his remaining at
least until the 1st of September, it is submitted that Her Britannic Majesty is entitled to claim for the catch from August
the 4th to September the 1st, 28 days, for which 800 skins in
excess ofthe 187 taken on the 10th and 19th would be a very
low estimate.
As in other cases, legal and other expenses were incurred in
preparing and presenting this claim, prior to the appointment
of this commission.
40     Her Britannic Majesty  claims the following damages as
resulting from the premises :—
Value of estimated catch as above,800 skins
at$7.00  $5,600 00
Proportion of Capt. Warren's expenses at
Ottawa       152 00
Belyea'sbill        250 00
Time and expenses of owner       200 00
$6,202 00
50     Interest on all above items at the rate of 7 per cent from
date of loss until payment.
R. 1333,
line 61.
X. 1325,
ine 10. 1886.
I THE BLACK DIAMOND."
Claim No. 5.
On May 28th, 1886, instructions were issued by the United
States Treasury Department to the Commanders of the Revenue Cutters directing them to seize all vessels sealing in Behring
Sea, which instructions were carried out during the summer
of that year.
In further pursuance of the determination of the United
States to prevent sealing in Behring Sea, the following letter 10
was written from the Treasury Department on the 6th of March,
1886, to the Collector of Customs at San Francisco:—
U.S.'8, 403. " Sir :—I transmit herewith, for your information, a copy of
a letter addressed by the department on the 12th March, 1881,
to D. A. D'Ancona, concerning the jurisdiction of the United
States in the waters ofthe Territory of Alaska, and the prevention of the killing of fur seals and other fur-bearing animals
within such areas, as prescribed by Chapter 3, title 23, of the
Revised Statutes. The attention of your predecessor in office
was called to this subject on the 4th April, 1881. This commu- 20
nication is addressed to you, inasmuch as it is understood that
certain parties at your port contemplate the fitting out of expeditions to kill fur seals in these waters. You are requested to
give due publicity to such letter in order that such parties may
be informed of the construction placed by this department upon
the provision of law referred to."
No doubt similar letters were written to other Collectors
of Customs. It is certain that knowledge of the instructions
was imparted to the Collector of Customs at Ounalaska.
Ap. "B"
p. 376.
R. 1756,
line 30-50.
R. 1757,
line 55.
R. 1758,
line 36.
R. 1756,
line 50-60.
R. 1757,
ine20.
The schooner " Black Diamond" was a British ship of 82 30
tons, registered at the port of Victoria.
In 1886 she was fitted out for a sealing voyage for the North
Pacific Ocean and Behring Sea. She carried a crew of 4 white
men and 17 Indians and had 9 canoes.
After sealing on the coast in the spring she was provisioned
for a voyage to Behring Sea. In taking these provisions, it
was expected that the vessel would not return until the beginning of September, and a sufficient outfit for that period was
provided.
She started for Behring Sea about the 1st June and sealed 40
on the way up, taking 64 seals in that part of the voyage.
She arrived at Ounalaska on the 1st of July. At that place
the Collector of Customs served certain papers on the master
and told him to leave Behring Sea right away.
The representation contained in the papers, as understood by
the master, was that if the vessel was caught in Behring Sea
killing seals she would be confiscated.
108 *■• HOI,
ine 30-60.
THE BLACK  DIAMOND. 109
The master, however, proceeded into Behring Sea and
began sealing. He continued until about the 3rd or 4th of
August. At this time he spoke a vessel one evening and
learned from her that two or three schooners had been seized.
On hearing this news the master immediately started for
home, fearing seizure and having no other reason for leaving.
He gives the following evidence on this point:—
Q. " To what effect were the papers you were served with r. 1757,
by the Collector of Customs at Ounalaska? A. "The papersline 18-
10 represented that if the vessel was caught in Behring Sea
killing furseals she would be confiscated.
Q. " Was there any verbal notice ? A. Yes, I was strongly
advised by the Collector of Customs to go out of Behring Sea,
or I would be sure to be seized.
Q. " What did you do then ? A. I went out into the sea
and began sealing.
Q. " How long did you remain in the sea ? A. I remained
until the beginning of August.
Q. I What day?    A. I do not remember what day; it was
20 somewhere between the 1st and the 3rd and 4th.
Q. " Did you meet with any other vessels ? A. Yes, I spoke
a vessel one evening, and she reported that two or three
schooners had been seized.
Q. " What vessel was it you spoke ? A. That I do not remember. I am under the impression that it was the schooner
' Vanderbilt' of San Francisco.
Q. I Did you know what were the vessels that were seized ?
A. " No sir, I did not.
Q. " Were you told ?   A. I think I found out when I came
30 back to the west coast.
Q. " You were told that two or three schooners had been
seized ? A.I was told that there were three schooners seen
in tow of the cutter.
Q. " What time ofthe day was it?    A. In the evening.
Q. " What action did you take then ? A. I started for home.
Q. I Why did you start for home ? A. I was afraid of a
seizure.
Q. " Had you any other reason to leave the Behring Sea except that of being afraid of being seized ?    A. No, sir, I had
40 no other reason.
At the time of leaving he had taken 763 seals in the sea.     r. 1757,
After leaving; Behring; Sea, he lowered boats near Shumagin J16,   "
00 °     R. 1758,
and sealed but did not make any catch.    The vessel lost the line 10.
remainder of the sealing season following the interruption
above referred to.
Legal and other expenses were incurred in preparing and
presenting the claim prior to the appointment of this Commission.
Her Britannic Majesty claims the following damage as result.
50 ing from the premises:
Estimated catch for remainder of season (9
canoes   from   Aug. 4 to after Sept. 1,)
1,491 skinsat$7 $  10,437 00
Legal and other expenses  250 00
$10,687 00
Interest on above items at the rate of 7 per
cent from date of loss until payment. 1887.
Ap. B. 106.
R. 1132.
R. 1133.
R. 979.
R. 980.
R. 1012.
R. 1013.
R". 1035.
R. 979,
line 24.
R 1095.
R. 1103,
R. HOG,
R. 1096.
R. 1097
THE " W. P. SAYWARD."
Claim No. 6.
The register of this vessel shows she was built in 1882, at
Victoria. Her length was 68 feet, breadth, 21 feet and five-
tenths ; depth, 7 feet and two-tenths. Her registered tonnage
was 64* 11 gross.
Captain Warren testified:—She was built in 1882 of Douglas
pine, her keel being laid in 1881 and the vessel finished in the
spring of 1882. She was well built and cost about $7,000, hull, 10
rigging, &c. In 1887 she had depreciated very little in value;
she had been well kept up; each year she had been hauled up,
cleaned, painted, coppered, bottom painted, top and sides
painted ; she was well cared for right along from 1882 to 1887,
and had a new suit of sails in 1886, one new sail in 1887.
Walker saw the " Sayward" building. Her carrying capacity was 110 tons dead weight. In her construction there were
used natural crooks, Douglas pine and she was treenailed.
McCollough Smith describes the building, of the " Sayward "
in the ship yard of one of her owners.    She was a particularly 20
strong and well built vessel, his estimate of her value was $7,500.
Lewis surveyed the "Sayward" in November, 1883, found
her in good order and seaworthy; fastenings, copper below,
iron above.
Walker saw her in 1887 after being built; she was worth
about $8,000, and in 1886 was worth close on $7,000 ; she was
well taken care of, and there was very little depreciation.
It is claimed therefore that the " W. P. Sayward" was
worth at least $7,000 when seized in 1887.
She left for Behring Sea May 16th, and was outfitted for a 30
full season, to stay until October if necessary. She carried the
British flag. She had 8 canoes, 1 boat; 21 hands all told,
principally Indians. Her master was George E. Ferey, and
Andrew D. Laing was mate. She entered the Behring Sea
about the 1st and was seized on the 9th July by the United
States cutter " Rush," when 50 or 60 miles from the Pribylov
Islands.
The 1 Sayward's" coast catch for 1887 was 1114 skins. They
were shipped to Victoria before she entered Behring Sea.
She had 485 sealskins on board at the time of her seizure.   40
The cutter towed the " Sayward " to Ounalaska, and after
some delay the skins were taken out of the " Sayward," she
was towed with the crew on board into the Pacific, by the
cutter; a quarter-master of the " Rush" was placed on her
and the crew was ordered by the captain of the cutter to proceed to Sitka, where they arrived on the 24th July.
The United States Marshal ordered the master and mate of
the " Sayward " to go up to court; they were then bound
over to appear on arrival of " Rush," and were tried in October, after which they were told to go about their business. 50
110 THE  W.   P.   SAYWARD.
Ill
R. 1098.
R. 1105.
R. 1099.
While waiting for trial the mate got leave from the court
to go to Victoria on his parole to return for trial. This trip
cost the mate $100.
In Sitka the master and mate lived in the jury room, Laing
says: " We could go about Sitka so long as we behaved ourselves."
The vessel, her tackle, apparel, boats, cargo and furniture App. B. 128.
were libelled in the United States District Court at Sitka by
the United States Attorney.
10     Her owner appeared by counsel and after trial, the property
seized was on the 19th day of September, 1887, condemned
and declared forfeited to the use of the United States.
The I Sayward" was in May, 1888, obtained by her owners R. 1147.
after giving a bond conditioned for an appeal to be taken to
the United'States Supreme Court.
The " Sayward " was used for coasting during the months
when there was no sealing, and if she had not been seized, or
if being seized she had been returned to her owners would
have been so employed during the fall of 1887 and following
20 winter.
After the seizure of the vessel the crew were turned adrift
at Sitka, and suffered great hardship in returning to their
homes,
Her Britannic Majesty claims the following damages as
resulting from the premises:—
R. 906.
946.
Fls
Mate's trip to Victoria	
Paid Attorney at Sitka     	
Passage of crew, Fort Simpson to Victoria	
Belyea's charges	
Owner's expenses	
Expenses incurred in bonding "Sayward", &c, say	
Damages to "Saywaid", say         	
Insuiance	
Expenses and hardships of crew, 19 men at $500 each....
485 skins on board at time of seizure, at $6.50	
Bedding	
Articles on board ship, items impossible to enumerate
(not returned)      .   	
40
Balance of catch for the remainder of the season ; eight
canoes and 1 boat from July !) to September 15, 1887,
2,921 skins at $6.50	
Estimated coast catch for 1888, less expenses	
Loss to owner by reason of detention in 1887 and 1888,
when, if in owner's possession, she would have been
coasting November, December and January	
For illegal arrest, detention, imprisonment and other
hardships of Captain Feery, and expenses incurred
in consequence thereof •	
50
v
; illegal arrest, detention, imprisonment and otr
hardships of  A. D. Laing, mate, and expenses
r.urre '. in consequence thereof .       	
j      12 00
100 00
50 00
200 00
750 00
200 00
1,000 00
2,000 00
480 96
9,500 00
3,152 50
40 00
200 00
13,'.)86 50
2,413 00
900 00
4,000 00
4,000 00
1105
1100
114
114
114
1143.
1150.
1147.
App. B. 119.
$ 47,984 96
M
Interest on all the above amounts at the rate of 7 per
cent per annum from date of loss until payment. Ap. B. 112.
a
R. 1133.
R.1134.
R. 1134.
R. 1135.
R. 975.
R. 977.
R. 978.
R. 1030.
1887.
THE "ANNA BECK"
Claim No. 7.
The register of this steam schooner shows that she was
registered at Victoria, British Columbia, in 1881, as a screw
steamer. She was 63 feet and 7 tenths long; 22 feet and 6
tenths broad; 5 feet deep with an engine 7 feet in length.
She had an upright condensing engine built in 1881, registered
nine horse power.
Her registered tonnage was 41*17 gross, her owner was 10
James Douglas Warren at the date of her registration,
Captain Warren, says :—
The "Anna Beck" was bought in 1872 for
,000. In 1881
auxiliary steam power was put in; she was burned to the
water's edge in 1883, rebuilt and the steam power replaced.
She was kept in good condition between that time and 1887,
being thoroughly overhauled once a year. This vessel was
built of Douglas fir with oak stern and rudder posts ; she was
iron fastened, and had a steam pump. To rebuild her, cost
$5,000, and the engine, which cost $3,000, in 1881 was, after 20
being repaired put in. first class order, and placed in her again
in 1883. She had new sails in 1886, which cost about $400.
She could carry 110 tons dead weight and had carried that
amount of coal.
Cook, who worked on this vessel, says she was kept in
good repair and was in good condition in 1885 or 1886, when
he last saw her. He gave his opinion that she would cost $135
per registered ton, supposing she was something over 40 tons.
Walker knew of the rebuilding in 1883. When rebuilt she
had some 18 inches to 2 feet added to her sides, new deck 30
frames, in fact she was built from the water up; as far as her
upper works were concerned she was practically a new vessel.
She was rebuilt of Douglas fir. The condition of the portion
under water was good; he considered her worth in 1883 when
rebuilt between $8,000 to $9,000. Between 1883 and 1887
Walker employed her in the coal trade ; she was kept in good
condition ; she had depreciated very little and would be worth
in 1887 from $7,500 to $8,000.
George W. Cavin rebuilt her; in the rebuilding she was
cleaned. All the burned and bad wood taken away, her 40
staunchions replaced, and everything about her made new, so
that so far as her top was concerned she was a new vessel. She
represented then $6,000 to $7,000. All the old iron fittings
and iron work about the ship were replaced. The value of the
"Anna Beck " just given is exclusive of her machinery.
112 THE ANNA BECK.
113
Lewis surveyed the " Anna Beck " in 1884 for the purpose R. 1036.
of insurance and reported the thorough overhauling this vessel
had received since the fire.
Warner valued the " Anna
tied
without her outfit or
R. 1038.
R. 994.
R. 996.
R. 1040.
machinery at from $5,000 to $6,000 when she was rebuilt.
Richard Bennett, ship builder, helped to rebuild her; the
work done was first class. She was made a deeper and better
vessel than before. Exclusive of engine, machinery and repairs
she was worth $6,^00.
10 Thomson, inspector of boilers, produced the official record of
inspection of this vessel made in 1885, from which it appeared
that she could make 6 miles an hour under steam and that her
machinery was in fairly good order; he explained that while the
registered horse power was nominal, her actual horse power
would be about 15. He valued the boiler, &c, of this vessel at
from $2,600 to $2,700.
Grant, chief engineer of the government steamer " Quadra," R. 1004.
corroborates this evidence.
Andrew Gray, inspector of boilers and engines, estimated R-1019.
20 $2,600 as the cost of putting the engine and boiler in the " Anna
Beck," besides the necessary carpenter work.
It is claimed therefore that the value of the " Anna Beck'»
when seized in 1886 was fully $8,000.
The vessel left the coast about the middle of May, 1887,
with supplies on board to remain in Behring Sea until the
beginning of September. She was fitted out the same way
that she was in 1886; in that year she left the sea on the 19th
August and had supplies left at the end of the voyage.
In 1887 the crew consisted of 20 Indians and 6 white men;
30 there were 10 canoes. The master's name was Louis Olsen,
the mate Michael Keefe ; she had 11 shot-guns and one rifle
and a full supply of ammunition for the season; the Indians had
spears as well; she lost one of the canoes in Behring Sea
about the 30th June; intended to remain out sealing until the
end of August; she entered the sea on the 28th June, on the
30th Olsen lowered his canoes and afterwards he lowered for
a day and a half.
When, on 2nd July,  1887, the "Anna Beck" was seized
by the cutter " Rush "; the British flag was flying on the
40 schooner.    An officer came on board, took the ship's papers
and towed her to Ounalaska, one officer and two men being R    4
placed on board from the cutter.
Olsen giving evidence says:—It was a calm day; smooth
water. They remained 4 or 5 days at Ounalaska, when the
captain of the " Anna Beck " was ordered to go on board the
schooner " Challenge," a small American schooner which had
been seized ; the mate and full crew were ordered on board with
him by Captain Shepherd of the "Rush." On this small
vessel, the "Challenge," there was a full crew belonging that
50 ship;   the "Challenge" was hauled  alongside the   "Anna
R. 1041.
B s—15 114
THE  ANNA BECK.
R. 1044.
Beck" and some of her provisions were put into the "Challenge," by order of Captain Shepherd, who told them to help
themselves and take what was necessary on board that ship;
no provision was made for the comfort of Captain Olsen, for
the mate or men, they all slept on the cabin floor of the
" Challenge." Some Indians also slept in the cabin—12 or
14 men slept in this cabin. The cabin was about 12 feet long,
and 8 feet broad. There were tables in the room. The floor
was very small. The passage to Sitka took about 13 days.
The Indians were given provisions and canoes and a boat 3 10
miles from Sitka, where they started for Victoria, a voyage
of about 700 miles.
A quartermaster named Lawrence had charge of the "Challenge," from Ounalaska to Sitka. The crew of the " Anna
Beck " remained on board the " Challenge," at Sitka, for two
days when the deputy marshal informed them they had to
appear before the judge; they were bound over to appear
before the judge and sent back to the " Rush " in charge of
the United States Marshal to await trial, and after this the
master and mate were in charge of the marshal and slept in 20
the jury room. They slept on the floor in their own blankets,
and remained in confinement until the 10th or 12th September;
they were released from imprisonment and got to Victoria about
the 20th September. The " Anna Beck " had 337 seals when
seized; mostly caught on the voyage to Behring Sea outside
the sea. The ship, her tackle, apparel, boats, cargo and furni-
App. B. 151. ture were libelled in the United States District Court at Sitka
by the United States District Attorney.
App. B. 154.       Her owner appeared by counsel and after the trial the property seized was on the 11th October, 1887, condemned and 30
declared forfeited to the use of the United States.
R. 1044.
Her Britannic Majesty claims the following damages as resulting from the premises :
R. 1061-62.
K. 1141.
App. B. 119.
Value of vessel.
Flag	
List of stores on board the schooner "Anna Beck " when
seized, so far as the captain can recollect	
Slop chest	
4 tanks	
Water casks	
4 shot-guns	
2 rifles	
Gun implements and tools	
Sealing boat and outtit   	
Cooking range	
Premium of insurance paid	
Bedding	
Estimated value of articles which were doubtless on beard
but which cannot be specifically mentioned	
Passage of master.
Passage of mate..
Counsel and other legal expenses in and about the claims
arising out of the seizure 	
Personal expenses in connection with such seizure and
claims	
$ 8,000 00
12 00
960 30
95 00
100 00
10 00
160 00
45 00
9 00
140 00
75 00
572 28
40 00
200 00
50 00
50 00
750 00
250 00
40 *a
10
THE  ANNA BECK.
Expenses and hardships of crew twenty six men at $500
each i  $ 13,000 00
Expenses at Sitka  100 00
337 skins at $6.50 each       2,190 50
Balance of catch for the remainder of the season, 9 canoes,
July 2nd to Sept. 15th, 1887, 3,000 skins at $6.50...    19,500 00
For illegal arrest, detention, and other hardships of
Louis Olsen, master of the "Anna Beck" and expenses incurred in consequence thereof        4,000 00
Ditto as to Keefe, mate of the " Anna Beck "      4,000 00
54,309 08
115
Interest on all the above amounts at the rate of 7 per
cent per annum from date of loss until payment.
3 R. 1359,
line 60.
R. 1360,
line 58.
R. 1363,
line 50.
R. 1364,
line 53.
R. 1360,
line 20.
R. 1360.
L
1887.
THE " ALFRED ADAMS."
Claim No. 8.
The I Alfred Adams" was a British schooner of 69 tons,
registered at the port of Victoria.
In the year 1887, she fitted out for a sealing voyage to
Behring Sea.
Her crew consisted of four white men, one Chinaman and
21 Indians.
She entered the sea on 8th or 9th July and continued seal-10
ing until the 6th day of August. On that day, her position
being latitude 54*52 N. and longitude 167*20 W., she was
boarded by an officer from the revenue cutter " Rush," which
cutter had steamed alongside and lowered a boat, containing a
crew commanded by the first lieutenant.
In the declaration of William Henry Dyer (since dead),
who was master oi the schooner, taken at Victoria on the 1st
September, 1887, and which was admitted in evidence, it is
said:—
" The said lieutenant came on board the said ' Alfred 20
Adams' and ordered me to take the ship's register, log-book,
articles and all others "of the ship's papers on board the
'Richard Rush.' In obedience to his command I took all
said papers and accompanied the said lieutenant on board the
' Richard Rush.' When I arrived on board the ' Rush' the
captain of the 'Rush' asked me what was my business in the
Behring Sea. I replied taking seals. He inquired how many
seals I had. I replied, 1386. He then said he would seize the
ship, take the skins, arms, ammunition and spears. I stated I
did not think the ship was liable to seizure, as we had never 30
taken a seal within 60 miles of Ounalaska, nor nearer St.
Paul's Island than 60 miles south of it, and that we had never
been notified that the waters were prohibited, unless landing
and taking them from the island of St. Paul. He stated he
must obey the orders of his government and that our government and his must settle the matter, and ordered me to
proceed on board the said schooner, and deliver my arms,
ammunition and skins and spears. He sent two boats belonging to the ' Rush ' in charge of the first and second lieutenants of the ' Rush' respectively, and manned with sailors 40
from the 'Rush' who came on board the said schooner. (I returning in company with the first lieutenant.) They took
from the said schooner 1386 skins, 4 kegs of powder (3
triple F and blasting powder), 500 shells, 3 cases caps and
primers, 9 breech-loading double-barrelled shot guns, 1 Winchester rifle, all in good order, and 12 Indian spears, and he
then gave me a sealed letter addressed to the United States
Marshal and the United States District Attorney at Sitka, he
also gave me an acknowledgment of the goods taken, and also
me a  certificate that the said schooner   was   under
seizure ; and after being alongside for about three and a-half
gave
50
116 THE  ALFRED  ADAMS. 117
hours I received orders in writing to proceed to Sitka and
report to the United States District Attorney and Marshal;
we then parted company."
Previously to being seized, the " Alfred Adams" had spoken
the schooner " Kate " of Victoria and had been informed by the
mate of that vessel that the crews, and particularly the Indians,
taken to Sitka on schooners previously seized, had been very
badly treated. The Indians on board the "Alfred Adams"
became very mutinous on learning that they were ordered to
*■" Sitka and declared they would not go, and to avoid further R. 1360,
trouble the master came to Victoria instead, arriving there on
the 31st August, 1887, at about 7 p.m.
This statement is corroborated by the joint declaration of
William Thompson, mate, and Charles Petersen and Edward
Hodgson, seamen (all of whom have since died) taken at Victoria on the 1st September, 1887, which was also received in
evidence.
The certificate referred to in the declaration of the master
is dated August 6th, 1887, signed by L. G. Shepard, Captain
20 United States Marine, and is in the following words :—
" This will certify that I have this day seized the British R 1362,
"schooner  'Alfred Adams,'  of Victoria," British Columbia, Une 50,
" Capt. W. H. Dyer, master, for violation of law  and have
" taken charge of his ship's papers, viz.: register,  shipping
" articles, clearance, bill of health and. log-book, also her arms
" and seal skins."
The report of Capt. Shepard to the Secretary of the Treasury R. 1363,
at Washington, detailing the circumstances of the seizure as
above, was also put in  evidence.    In this report he  says:
30 " When boarded she (i.e., the schooner) had fourteen dead seals
" recently killed but not skinned on deck."
It also appears from an extract from the log of the " Rush," R. 1364,
dated August 6, 1887, that the articles found on board the ship
and transferred to the "Rush" were the following: 1382 seal
skius, 7 double-barrelled B. L. shot guns, 3 B. L. Winchester
rifles, 2 single-barrelled muskets, 3£kegs of powder, 259 loaded
shells for shot guns, 190 empty shells, 110 cartridges (44 for
Winchester rifles), 79 cartridges, 45 small cartridges and 1500
primers, and that the vessel was seized for violation of Sections
40 1955 and 1956, Revised Statutes, and Executive Order, dated
May 4th, 1887.
It appears also from a further extract from the log of the R# 1364
same cutter, dated August 12th, that certain Indian spears and hneS0-
1379 seal skins taken from the " Alfred Adams " on the 6th
August, were delivered at Ounalaska to the United States
Marshal.
Legal and other expenses were incurred in preparing and
presenting this claim prior to the appointment of this Commission. 118
THE  ALFRED ADAMS.
25   00
385 00
Her Britannic Majesty claims the following damages as
resulting from the premises :—
For the illegal boarding, search and arrest
of vessel $2,000 00
Ship's papers	
7 double-barrelled shot guns at $55	
2 single-barrelled muskets at $10        20 00
1 Winchester rifle        35 00
12 Indian spears at $3 each        36 00
1,386 seals skins at $6.50  9,009 00        10
Legal expenses      300 00
Personal do           200 00
Estimated catch for remainder of season, 10
canoes sealing from 6th Aug. to 1st Sept.,
1344 skins at $6.50  8,736 00
$20,746 00
Interest on all of the above items at the rate
of 7 per cent from date of loss until payment. 1887.
THE "GRACE" AND "DOLPHIN."
Claims Nos. 9 and 10.
The register shows that the steam schooner " Grace" was
built in 1881 at Victoria. Her registered tonnage was 83*01
gross. She was 76 feet 5-tenths long, 23 feet and 4-tenths
broad and 8 feet deep in the hold from the tonnage deck to
ceiling at midships.
She was registered in the name of James Douglas Warren.
Ap
116.
Ap. B. 114.
10 The " Dolphin " is shown to have been built in 1882, with a
registered tonnage of 66*24 gross. She was 77 feet long and
22 feet 7-tenths broad, 7 feet 5-tenths deep in hold from tonnage
deck to ceiling at midships, with an engine room 10 feet in
length.
She was registered in the name of James Douglas Warren.
Captain Warren says: Of these vessels the "Grace" was R. 1035.
the larger; they were built about the same time, one after the
other.    The "Grace" was built of Douglas fir and yellow
cedar, with oak stern and rudder posts; copper fastenings :
20 she was treenailed throughout; copper from just above high
water mark down; galvanized iron above that. Cost $16,000
with her engines complete. She had a passenger certificate,
and steam hoisting gear; kept in thorough repair, and was
in good condition in 1887.
The " Dolphin " was built immediately after the " Grace."
She was a better boat; more care taken in the selection of the
material and fastenings; the style of the ship was pretty much
the same; the cost about the same as the " Grace " ; kept in
good condition and was so in 1887.
30 Mr. Walker saw these vessels during construction ; describes
the material; valued the "Grace" in 1887 in the neighbourhood of $12,000.
In 1887, before the "Dolphin" went sealing, he employed
her to carry coal; she was in good condition and was worth
from $13,000 to $14,000 in 1887.
McC. Smith had to do with the building of the " Dolphin."
He describes the'care taken in the building and material
used; built by days' work; coppered, natural crooks of yellow
cedar; valued her at $9,700'exclusive of machinery.
40 He was also concerned with building of the " Grace."
She was larger than the "Dolphin" though not so'good a
vessel; values her at $10,000 clear of machinery, and exclusive of carpenter work in connection with putting machinery
R. 978.
R, 979.
R. 1008.
R. 1009.
R. 1010.
R. 1011-
in.
The " Dolphir
best of the sealing fleet.
was a very strongly built ship—one of the
119
101J 120
THE  GRACE  AND  DOLPHIN.
R.101E
R. 1029.
R. 1030.
R. 996.
R. 998.
R, 1019.
Mr. Warner corroborates the evidence of Mr. Smith as to
the " Grace " and " Dolphin."
George W. Cavin helped to build these vessels; valued hull,
spars, &c, of "Dolphin" at $14,000, in the case of the
"Grace" at $12,000.
Richard Bennett worked on the " Dolphin " and " Grace " ;
The "Grace" cost between $12,000 and $13,000, covering
rigging, sails, anchors, hull and spars. The " Dolphin" cost
$2,000 more.
Mr. Thomson produced the record of the inspection of the 10
1 Grace," March, 1885, showing she could' make 5 miles an
hour under steam;  good  sea-worthy  qualities, fairly  good
engine, good test of boiler, actual horse power 25; valued the
engine and boiler in 1885 at $3,500.
He produced also the record of inspection of the " Dolphin "
November, 1885 ; under steam she could make 4 miles an
hour speed. A good boiler one year old, and engine; duplicate of the 1 Grace's."
Mr. Gray put the cost of the boilers and engines of the
"Grace" and "Dolphin " at $3,100 to $3,200 including the 20
cost of putting them in.
It is claimed therefore that under the circumstances the
value of these vessels when seized was in the case of the
" Grace " $12,000, and in that of the " Dolphin" $13,000.
The | Grace" fitted out for a full Behring Sea voyage, to stay
until October, if necessary, and on May 21st sailed from
Clayquot bound north. W. Petit was master and H. Norman
was mate. She carried 12 canoes and one boat. Her crew
consisted of 6 white men, 24 Indians, and a Chinese cook.
r. nos. On July 17th, 1887, she was seized by officers of the cutter 30
"Rush" at a distance of about 96 miles from the nearest land
and with her crew taken in tow to Ounalaska.
On July 18th, 1887, the commander of the "Rush" reported
to the United States Secretary of the Treasury, the seizure
of the steam schooner " Grace," as follows :—
" On July 17th, in the Behring Sea, lat. 55 deg. 03' N long.
168 deg. 40' W. Cape Cheerful, Ounalaska Island bearing
S. E. £E. 96 miles distant, I boarded and examined the British
steam schooner 'Grace' 76tV? tons register, of Victoria, B.
O, Wm. Petit, master, and J. D. Warren, of Victoria, B.C., 40
managing owner, and found her to be on a sealing voyage.
Had been ten davs in the Behring Sea, and had 769 seal skins
on board. When boarded she had twelve canoes and one
boat out hunting seal. Saw one seal shot and taken into the
boat while we were near her. Counted 12 seals taken on board
the schooner from one canoe and all the canoes contained more
or less seal recently killed. The captain reported taking 90
during the day and 150 the day previous. Seized the vessel
for violation of section 1956 R.S., and two breech-loading
rifles and ammunition for same, for violation of section 1955, 50
R.S., and section 4, Executive order No. 53, dated May 4,1887.
Her crew consisted, of six white men, twenty-four Indians and
one Chinaman. Placed Lieutenant Benham in charge, and after
waiting: seven hours for her canoes to return, sohie of which THE   GRACE  AND  DOLPHIN.
121
had been a long distance from the vessel, took her in tow and
proceeded to Ounalaska."
The master was made prisoner and taken on board theR-112?-
" Rush. "
R. 1143.
R. 1108.
The " Grace-" carried the British flag.
On July 18th, at Ounalaska, all firearms and ammunition
were taken from the " Grace " by the officers ofthe cutter and
arrangements were made to send her to Sitka.
On July 19th the cutter's crew took off 769 seal skins and 4 r. 1107 and
10 sacks of salt from the " Grace. " mo and 1145'
On July 20th the " Grace " was'taken to Sitka in charge of
a United States Marshal.
On his arrival, August 1st, the master was handed over to r. 1127.
the custody of the United States Marshal.
No one had particular charge of the provisions after arrest: R 114C
the men helping themselves generally, and the United States
Marshal himself also took certain articles from the schooner.
The Marshal, on August 7th, ordered the Indians to leave r. 1146.
the schooner, and they went on shore; on  August 8th they
20 were ordered back on the schooner.
On October the 4th the " Rush " arrived at Victoria with R. 1147.
some of the Indians and a number of the white men; the master
and mate who had been under arrest were released on September 9th.
The " Grace, " her tackle, apparel, boats, cargo and furniture
were libelled in the United States District Court at Sitka by
the United States District Attorney on the 13th September, Ai
1887.
Her owner appeared by counsel and after trial the property
30 seized was on the 11th day of October, 1887, condemned and
declared forfeited to the use of the United States.
LPP.
B.,ri
1143
" DOLPHIN.
The  "Dolphin" left Victoria on May  16th,  1887, after r. n4;
having fitted out for a full season's voyage in Behrina; Sea— r nsf
till October if necessary ; Warren, master; Reily, mate ; her
crew and hunters consisted of 7 white men, (1 white hunter),
and 26 Indians; 13 canoes, 1 boat.
She carried the British flag.
On the 12th July the United States cutter " Rush "  seized
40 the " Dolphin"  at  a distance of about 40 miles from the
nearest land, took her arms and ammunition ; put an officer
and two men on board in charge of her, and ordered her to
Ounalaska.
On July 18th, 1887, the commander of the " Rush " reported
to the United States Secretary of the Treasury the seizure of
the steamer schooner " Dolphin, " as follows :—
" Found her to be on a sealing voyage.    The vessel had
been three days in the Behring Sea and had 618 seal skins on
board.    Ten canoes and one boat were out hunting seals at
50 the time.    From the canoes 12 or more dead seals were taken
b s—16 122
THE  GRACE AND DOLPHIN.
on board the schooner while we were near her, and three skins
from seal recently killed were found in the boat.
" Seized the vessel for violation of section 1956, R. S., and
transferred her arms and ammunition on board the " Rush "
viz. : 4 breech-loading rifles, 26 breech-loading shot-guns, 10
muzzle-loading shot-guns, 1 bomb gun, 4 revolvers, 3404
rounds ammunition for breech-loading rifles, 250 rounds
ammunition for shot-guns, 4 kegs powder, 50 lbs. shot, and
other small ammunition."
On the 13th July the United States authorities at Ounalaska 10
took 618 seal skins and 9 sacks of salt from the "Dolphin."
R. 1145.        She was then sent to Sitka in charge of an officer and arrived
there on the 31st July.
With the knowledge and consent of the United States
officer in charge, and while the vessel was on her way to Sitka,
four of the crew left in one of the " Dolphin's " boats for Fort
Simpson.
The marshal, on August 7th, ordered the Indians to leave
the schooner; they went ashore; they were ordered back on
the vessel on August 8th. 20
The master and mate having been under arrest were released
on September 9th.
The " Dolphin," her tackel, apparel, boats, cargo and furniture were libelled in the United States District Court at Sitka
by the United States District Attorney on the 13th September
1887.
App. B. 166. B er owner appeared by counsel, and after trial, the property
seized was on the 11th day of October, 1887, condemned and
declared forfeited to the use of the United States.
R. 1146.
R. 1147.
Her Britannic Majesty claims the following damages as 30
resulting from the premises.
In the case of the steam schooner " Grace " :
R. 1139.
App. B. 120.
Value of vessel
Flag	
3 iron tanks..
12 water casks
12 guns .   .   .
3 rifles	
Cannon .
Gun tools ..
2 boats	
Cook stove
Insurance
Bedding...
Estimated value of articles which were doubtless on board the
vessel but which cannot be specifically mentioned	
Expenses and hardships of crew of 33 men at $500 each     1(
Passage of master and crew	
Legal expenses	
Time and personal expenses	
§12,000 00
12 00
66 00
30 00
480 00
77 50
50 00
11 00
250 00
75 00
848 75
50 00
250 00
,500 00
200 00
850 00
250 00
40 10
20
30
40
THE  GRACE  AND  DOLPHIN. 123
769 skins at $6.50 each  $ 4,098 00
Balance of catch for the remainder of the season, 12 canoes, 1
boat, July 17th to September 15th, 1887, 3,000 skins at $6.50 19,500 00
For illegal arrest, detention and other haidships of Captain
Petit of the "Grace" and expenses incurred in consequence thereof     4,000 00
For illegal arrest, detention and other hardships of mate of
" Grace" and expenses incurred in consequence thereof..    4,000 00
$64,498 25   ■
Interest on all the above items at the rate of 7 per cent per
annum from the date of loss until payment.
In the case of the steam schooner " Dolphin " :
Value of vessel     $14,000 00
Flag	
Ammunition, extra	
Slop chest	
Iron tanks	
Casks	
26 guns at $40 each	
10 muzzle loading guns at $20.
4 rifles at $22.50 each 	
4 revolvers at $10	
Boom gun	
Tools	
Boat	
Cooking stove	
Bedding	
Insurance	
Estimated value of articles which were doubtless on board but
which cannot be specifically mentioned	
Expenses and hardships of crew of 33 men at $500 each	
Passage of master and crew	
Legal expenses ,....
Time and personal expenses	
618 skins at $6.50 <■	
12 00
100 00
50 00
50 00
55 00
1,040 00
200 00
90 00
40 00
60 00
11 00
75 00
75 00
50 00
722 71
250 00
16,500 00
300 00
850 00
250 00
4,017 00
Balance of catch for the remainder of the season, 13 canoes, 1
boat, 12th July to September 15th, 1887, 3,400 skins at $6.50 22,100 00
For illegal arrest, detention and other hardships of Captain J.
D. Warren of the "Dolphin," and expenses incurred in
consequence thereof       4,000 00
For illegal arrest, detention and other hardships to mate of
" Dolphin," and expenses incurred in consequence thereof.    4,000 00
$68,897 71
Interest on all the above amounts at the rate of 7 per cent per
annum from date of loss until time of payment is also
claimed.
R. 1140.
App. B. 120.
■t -——--«——.
1887.
THE "ADA.'
jtjii.
R. 757.
R 1212.
R. 787.
R. 787.
R. 1283.
R. 787.
R. 1245,
line 50.
R. 1213,
line 25.
R. 1214,
line 10.
R.
1227-9
R.
1846.
R.
787.
R.
788.
R.
788.
R.
788.
R.
1214,
line 10.
R. 788-9.
R. 789.
R. 1216,
ine 20.
R. 790,
ine 10.
Claim No. 11.
The I Ada " was a registered British schooner of 77*48 tons
gross.
On or about the 16th June, 1887 she cleared from the port of
Victoria for Behring Sea on a sealing voyage.
Her master was James Gaudin, and C. A. Lundberg was
mate and hunter.
She had seven canoes, one sealing boat and the stern boat.    10
She had a crew composed of eight white men and fourteen
Indians ; one of the white men was also a hunter. She was
fully provisioned for four or five months. Provisions would
have lasted until November. The master intended remaining
in Behring Sea until after the 15th September.
As to the outfit, Gray, the owner who was called as a witness
was unable to distinguish between what was used for the coast
trip and the Behring Sea voyage.
Apart from a large number of items which cannot be classified, there were paid for provisions $1,357 ; for guns and rifles,
$787.50 ; for boats, $406.57; for ammunition, $606.93; and for 20
ship chandlery, $436.16.
The " Ada" entered Behring Sea on the 16th July, and on
the morning of 25th August she was seized, while carrying the
British flag, by the United States revenue cutter, the " Bear."
At the time of the seizure the canoes and boats were out
sealing, and on being signalled for, came back with 38 seals.
The day of the seizure was a good sealing day.
The "Ada" had 1876 seal skins on board at the time of
the seizure, all but five taken in Behring Sea after 15th July.
Immediately after the seizure, a prize crew of four men was 30
put aboard the schooner and she was towed to Ounalaska by
the cutter. At Ounalaska the vessel was searched, and in
spite of the master's protest, her papers, cargo, guns, &c, were
removed. Also the captain's private log which they never
gave back, although the seizing officers had given their word
of honour to do so.
The crew was afterwards compelled to take her to Sitka,
under threat of being left on the beach, taking the captain
prisoner to Sitka, and hauling the ship on the bank and letting
her rot there. 40
They arrived at Sitka on the evening of the 5th September,
and four or five days afterwards the crew was released and
later on taken to Nanaimo on the " Rush."
124 1
THE   ADA.
125
From Ounalaska to Sitka (25th August to 5th September) r. 121c
they had only a couple of days bad weather, and while they *
remained at Sitka the weather continued to be fine.
The following account of what took place at the time of the
seizure at Ounalaska and at Sitka is taken from Lundberg's
evidence, page 787 and following :—
" The lieutenant of the ' Bear' came on board of us and
asked for the ship's papers, and the captain handed them to
him.    Then, he told us that we were violating the laws of the
10 United States, and we thought we were not. He asked what
we were doing there, and we told him that we were sealing,
and the captain pointed to the flag—the English flag flying at
the mast-head. The officer went back to the cutter and shortly
afterwards he returned to us with seven or eight men and
started in to make ready to take us in tow and told us we were
seized. I told him, and so did the captain, that our boats were
out sealing. He stopped for a while and told us to signal for
the boats, which we did. We got the canoes on board; they
had 38 seals.    It was just 8.30 a.m., they had gone out about
20 6 a.m.
"The ship was taken in tow by the 'Bear' and a prize
crew left on board : the lieutenant and three men. The cutter
made for Ounalaska, where we arrived subsequently. They
anchored us there all night. The next morning they took
guns and money and everything from us and put it on board
the ' Bear.' They searched the whole of the vessel right
through; they took skins out and salt, not the provisions.
Before the arms and money were taken the captain wrote out
a protest that nothing was to be taken out of the ship.    The
30 lieutenant took the papers and kept them. After they had
taken out the skins, Captain Healy stood on the wharf and
asked for the log book ; our captain said that he had no log
book for the ship but only a private log. Captain Healy said :
I want to see it. Our captain said : If you will give me your
word of honour to give it back to me, I will get it out ? He
said then : Hand it here. My captain told me to go down and
get it, and I handed it to him, and he handed it to Captain
Healy, but never got it back. Both I and my captain asked
the captain and lieutenant on board the ' Bear' to return it,
40 and they would not give it back.
" When everything was out he told the captain to take the
schooner to Sitka, and. the crew refused to go; they wanted to
know who was going to pay them for taking her down. The
master reported what they said to Captain Healy. The latter
pointed over to the other vessels seized the year before, and he
said : Do you see those three rotten British hulks, there ?
Take her down to Sitka, or else I will haul her over there and
let her rot, and I will put your crew on the beach and take
you down in one of the cutters as a prisoner to Sitka.    The
50 captain said to the crew: Do you hear what that man says ?
What are we to do ? There was nothing said for a while, and
they consulted amongst themselves and the captain came again
and asked : Are you willing to go or what is it going to be ?
They said they would go to Sitka.
" The Indians were all on board ofthe 'Ada' and went
from Ounalaska to Sitka. There was a petty officer from
one of the cutters. We were towed out by the 'Bear.' I
think it was nine days' passage between Ounalaska and
Sitka.
(0 "At first we were not allowed to go on shore. The captain
went ashore and the crew remained on board.    The Indians
91,
45. R. 1215.
126
THE  ADA.
were all told to stay on board for a while until we got further
orders. The crew and myself were compelled to stay on board
the schooner at Sitka four or five days, or something like that.
There was a special policeman on board in charge of our vessel
and he remained there mostly all the time. After four or five
days or a week, when the first steamboat with mail came up,
the captain came and told us that we were to quit the schooner
and that he was going away. He said that the crew was
acquitted but the vessel had to remain.
" We had nothing to go away with.    We applied to the 10
Governor for means to get away.    We were at Sitka until the
25th September and lived on board ; after four or five days we
could go
lere we liked.    We were
eating
all our own
ship's food. I think some of the provisions were taken charge
of by the constable. I saw him taking provisions but not
when he was on duty ; it was afterwards, after we were liberated. We asked for the loan of a gun to shoot for food, but
could not get one. We were taken before the judge ; I was
asked some questions. After a week had run out we could
not get away as we had no means to pay our passage. We 20
finally got away on the ' Rush.' We had to go and make
application to judge Dawson ; he told us that we could get
away on the ' Rush' but he did not know when she was going.
That was after we had stayed on board ten days; we had had
no more provisions at all. I went up and asked him how it
was going to be because the Indians were running after me.
I had no control Over anything as long as it was that way. I
do not know who took the things away; I had no command
over the crew nor over the provisions. He said there were
enough provisions on board to last us as long as we were at qq
Sitka. I said I did not know where the provisions were, but
that there was no more on board of the schooner. There was
some biscuit in the hold that the Indians had, and then we had
to sell our clothes, what little we had. We sold everything
we had, right down to our boots before we got away, and
finally the ' Rush' took us on the 25th September and arrived
at Victoria on the 4th October."
James Gaudin, the master, gives evidence to the same effect,
and adds:—
"We waited at Sitka until instructions were received as to
what they were going to do with us. We attended the court 40
day by day, and each day we were told to wait until instructions arrived. I think that the ' Allie I. Alger' and the
steamer ' Ancon' arrived at Sitka on the same day. They
brought an order from Washington to release the crews. We
arrived at Sitka on the evening of the 5th September, and it
was on the evening* of the 8th that the ' Ancon' arrived. I
left the next day. I gave the purser of the ' Ancon' my
note for my ticket to raise the money. When orders came
from Washington to release the crews I made an application
to the judge and asked him what he was going to do with our 50
men, and it was then decided that they were to go down on
the ' Rush.' The ' Rush' had not arrived at Sitka at that
time. Subsequently she brought them down to Nanaimo.
This was not their home."
1293. In September, 1887,the "Ada," her tackle, apparel, boats,
cargo and -furniture were libelled in the United States District
Court at Sitka, by the United States District Attqrney. THE  ADA.
127
An appearance by counsel was filed, and after trial, the pro- R. 1297.
perty seized was, on October 11th, 1887, condemned and declared forfeited to the use of the United States.
As a result of the seizure and .forfeiture of his vessel the R. 1230.
owner was completely ruined.
The " Ada" was built in 1882 in Yokohama. Her frame, r. 784-5.
keelson and cabin fittings were of kieki. The wood work of
the cabin was of the same material, and she was planked with
Oregon fir. She was copper-fastened to her water line. Chas.
10 A. Lundberg, who saw her every day during the course of construction says all the work was first-class. He was present
when the contract for building was made in Yokohama, and
says that the amount for the hull and spars was $5,500, and R. 785.
for balance of fittings, running gear, hawsers and upholstering,
$2,000.
James Gaudin, the master, examined the " Ada" before
leaving for Behring Sea and found her in perfect condition.
He says she was the best sealing vessel in "Victoria at the time.
When the "Ada" came to Victoria in 1887, Gray, her
20 owner, was offered $9,000 for her—without any provisions—by
Mr. Siewerd. In reply Mr. Gray said that he would not
take $10,000 for the ship.
Siewerd says the " Ada" was well built, well found and in r. 1242.
good condition, and thinks she was well worth eight or nine
thousand dollars.
Richard Collister, for thirteen years Inspector of Hulls for r. 1312
the Dominion Government in British Columbia, and who previously was a ship-builder in Liverpool, surveyed the " Ada "
in April, 1887, for Lloyds' underwriters, and made a thorough
30 examination of her. In his opinion, from his knowledge ofthe
value of ships and the cost of ship-building in Victoria, the
I Ada" was then worth fully $l>,000.
1212.
1213.
. 786 & 1225.
le 30.
The claim of Captain Gaudin for personal damages for arrest
in the year 1887, needs special mention, as amotion to dismiss
it on the ground that such claim was not properly within the
terms of the Convention, was made at the hearing. This claim
was, by mistake on the part of the agent of the owner of the
"Ada," not included when the other claim in connection with
the vessel was submitted. Captain Gaudin thought that it had
40 been so included and it was only on seeing the printed list of
the British claims that he discovered that such was not the
case. He immediately requested that his claim might be added
to the list. Her Majesty's Government caused inquiry to be
made into the circumstances of the delay and after such inquiry
decided that his application should be granted and that his
claim should be pressed.
On the 7th June, 1894, Sir Julian Pauncefote wrote to Mr.
Gresham, stating :—
" I have now the honour to transmit herewith, by direction
50 of Her Majesty's Principal Secretary of State for Foreign .emsiszjp
R. 1228.
1228-9 and
R. 1297.
R. 1847.
128 THE  ADA.
Affairs, a complete list and summary of those claims, together
with memoranda of the additions and amendments made since
their original presentation."
The memoranda referring to the case of the " Ada " was as
follows:—
" Claim of the master, Captain Gaudin, for personal loss and
damage, 3,000 dollars.
" This claim was, by a mistake on the part of the agent of
the owner of the 'Ada,' not included when the other claims
in connection with this vessel were entered. Captain Gaudin
thought that it had been so included, and it was only on see-10
ing the printed list of the British claims that he discovered
that such was not the case. He at once requested that the
omission might be rectified, and his claim added to the list,
and Her Majesty's Government, after causing an inquiry to be
made into the circumstances of the case, decided that his application should be granted.
" Captain Gaudin's claim has accordingly been added to the
schedule of the claims entered with respect to the schooner
'Ada'."
No objection to this claim being included was raised on 20
behalf of the United States and in the negotiations which subsequently took place for the settlement of the question of compensation by the payment of a lump sum, this particular case
was included with the claims to be settled by that lump sum.
A reference to the terms of the present Convention shows that
they are broad enough to include this as well as other personal
claims; the words in the schedule being simply—
" Personal claims, 1886.
: "     do do     1887."
It is submitted that this claim is clearly within the terms of 30
the Convention.
Her Britannic Majesty claims the following damages as
resulting from the premises :—
Value of vessel $ 9,000 00
Flag  12 00
Premium of insurance paid  120 00
Boats and canoes      466 57
13 guns, 6 rifles  787 50
Bedding, 8 at $10 each   80 00
Estimated value of provisions, ammunition, ship chandlery, &c., which would have remained at the end of
the voyage     500 00 40
Estimated value of nautical instruments, chronometer,
quadrant, sextant, compasses, &c  350 00
Estimated value of other unconsumable sealing outfit,
and of articles which were doubtless on board vessel
but which cannot be specially mentioned  600 00
Passage of Captain Gaudin    F0 00
Expenses and hardships of crew, 22 at say $500 each     11,' 00 00
Cost of defence at Sitka (  500 00
Paid Warren in connection with presentation of claims
at Ottawa  152 00
Paid Mr. Pooley, ditto  25 00
Belyea's charges      '   750 00 lagan
THE   ADA.
Personal expenses of owner from Yokohama     $   500 00
1876 skins seized on board schooner at $6.50     12,194 00
Expenses and hardship of crew (22 men at $500 each)     11,000 00
Estimated catch (7 canoes, 1 hunting boat and a stern
bont sealing from 24th August to 15th September,
inclusive), 1064skins at $6.50         6,916 00
For the illegal arrest, detention and other hardships of
James Gaudin, master of the "Ada," and expenses
incurred in consequence thereof $3,000
For the illegal arrest, detention and other hardships
of C. A. Lundberg, mate of the "Ada," and
expenses incurred in consequence thereof   3,000
      6,000 00
$ 61,003 07
Interest on all the above items at the rate of 7 per cent
from date of loss until payment.
129
BS—17
49
JJigP 1887.
THE "TRIUMPH.5
HI
R. 1396,
line 41.
R. 1406,
line 60.
R. 1399,
line 50.
R. 1397,
line 10-20.
Et. 1397.
Claim No. 12.
The I Triumph " was a British schooner of 15 tons, registered at the port of Victoria.
In the year 1887, she was outfitted for a voyage to Behring
Sea with the intention that she should remain until the end of
September.    On that point the owner says:—
" Q. In a general way are you able to say to what extent 10
you outfitted and provisioned the vessel ? A. All I can say is
this, of course I calculated that the schooner would stay up
there until pretty late in the season—that was in September.
I gave the captain particular orders, I want you to hunt there
until the last, until you are driven out of the Sea, and, of
course, I gave them what I considered a good five months'
provisions and the proof of it was that the schooner came back
pretty well provided with provisions after the trip."
The witness Smith also says :—
1 To the best of my judgment I should think that there were 20
plenty of provisions for the crew we were carrying to last us
until the beginning or middle of October."
And he goes on to say that when they arrived on the coast
they had plenty of provisions left. They there gave the Indians
who were landed, 7 or 10 sacks of flour; 3 or 4 boxes of
biscuits ; several pounds of sugar, and landed a balance over
and above that at the store of Mr. Byrnes on their return to
Victoria.
The " Triumph " left Victoria for the Behring Sea about
the 20th or 21st of May, with a crew consisting of master and 30
mate and 8 Indians.    She carried 4 canoes and no stern boat.
Sealing was engaged in on the way to Behring Sea and about
54 skins were taken.
On the 4th August, when lying becalmed at the mouth of
Ounimak Pass, at breakfast time, the Indians reported a
steamer in sight. This turned out to be the revenue cutter
" Rush."    A lieutenant from tht; cutter came onboard.
The following statemeut of what occurred is taken from the
evidence of Smith, mate for the voyage :—
" The first question he asked was why we did not have our 40
ensign up ; and the captain told the lieutenant that he did
not know that he was a revenue cutter, and the lieutenant
ordered us to hoist our colours immediately, which we did.
He then entered the cabin and demanded the log book and
the papers belonging to the ship, which were handed to him.
He made some entries in his own private book and asked the
captain what his business was ; the captain told him that we
were bound on a sealing voyage into Behring Se^,.    I believe
130 THE TRIUMPH. 131
then that he went back to report to the captain of the cutter,
and he immediately returned and searched the vessel.   A man
went down in the ship's hold and I went with him, and he
turned over the provisions and took the skins out of salt and
counted all that we had on board.    He made me open the
water barrels
" Q. Did he ask*you if you had any rifles on board ? A. He
asked if we had rifles on board and the captain told him that
we had only one rifle on board and no ammunition.    He then
10 entered the cabin again and told us that Captain Shepard had
a right, according to our log, to seize us then and there, and
also what we had on board the vessel as the seals were caught
within the limits of the United States jurisdiction.    We did
not understand that, and the captain asked him how it was.
He took out our North Pacific Ocean chart and  drew line
across the southmost capes of Alaska to the southmost point
of the Aleutian Islands, and he drew the line and claimed all
the water within that line as being American territory.    And
he claimed all the seals that we had onboard that were caught
20 within that limit. He said that as we were working on shares
they would give us the chance to take the vessel home.    He
demanded an answer from the captain, and asked him what he
intended to do; the captain told him that he had orders from
his owners to proceed to Behring Sea and finish the voyage ;
that was not sufficient and the lieutenant insisted upon an
answer; the captain declined to give it to him. The lieutenant
returned on board the revenue cutter and the revenue cutter,
steamed close alongside of us, and Captain Shepard hailed us
from the bridge, saying that if he saw us in Behring Sea after
30 this warning he would seize us on sight."
The lieutenant also told the master of the " Triumph " that R. 1398,
the   schooners,   "Grace,"   "Dolphin,"   "Anna   Beck"   andv
" Sayward " had been seized.
After this occurrence, the vessel remained becalmed for
some time.    Some of the Indians who understood English had *
heard the statement of Captain Shephard and began to feel
uneasy. They demanded an immediate return home. The
captain and the mate talked the matter over and the captain explained that he had some information as to possible sealing r ^98,
40 grounds away in the west, and after that when the Indians de-line48-
manded a return, the captain told them the same story, and
that he would try to hunt on some sealing ground where he
would not be in danger of seizure.
He also promised the Indians that if they would finish the
voyage, he would give them as a bounty, the amount of the
advances previously made to them.
The Indians being thus pacified, the vessel took a westward
course and entered Behring Sea.
Hunting operations were begun on the 5th August and con-
50 tinued until the 25th, inclusive, when the vessel began her return voyage.
The witness Smith gives the following evidence with reference to that matter:—
" Q. What made you leave the Behring Sea on the 24th or r. 1399.
25th of August, as you have stated ?—A. Being off the regularlme 30-4°*
sealing ground, and from what I have been given to understand from the captain, that seals were scarce and the Indians 132
THE TRIUMPH.
R. 1400,
line 40.
R. 1401,
line 55.
were afraid of seizure, and they thought it best to save what
we had on board, and the captain concluded to come home;
in fact, the Indians refused to launch the canoes on the last
day of our being there."
" Q. What kind of weather did you have for the few days
before the 24th or 25th of August, the time you left ?—A.
So far as I can recollect, I was 21 days engaged in the business;
we launched 17 days out of that—that will give a pretty good
idea of what kind of weather we had.
| Q. But the two or three days before you left what kind of 10
weather did you have ?—A. The  vessel lay becalmed, foggy,
no wind to drive her one way or the other."
It should be noted here that the witness was afterwards recalled and produced his book containing a record of the daily
catch of seals in Behring Sea, from which it appears that from
the 5th to the 25th, inclusive, the vessel had 19 lowering days.
He also says that on the 25th they took 33 seals, but that
as a general thing there were not many seals on the ground
over which they had been hunting.
Legal and other expenses were incurred in preparing and 20
presenting the claim prior to the appointment of this Commission.
Her Britannic Majesty  claims the following damages  as
resulting from the premises :
Illegal boarding and search of vessel    $ 2,000 00
Proportion of Warren's expenses to Ottawa        152 00
Time and expense of owner.             200 00
Belyea's charges           250 00
Estimated catch if schooner not interfered with (4 canoes sealing from 5th August to 15th September, inclusive less
486 skins actually taken) making 419 at $6.50     2.723 50
$ 5,325 50
Interest on all above items at the rate of 7 per cent from date of loss until payment.
30 1889.
THE "JUANITA."
Claim No. 13.
The I Juanita " was a British schooner of 40 tons registered
at the Port of Victoria.
According to the evidence of Clark, the master, she was well
fitted for sealing. This statement is verified by the schedule £•» 1339>
„ . . Iinelandl353.
put in evidence of the articles comprising the provision and
outfit, the total value of which amount to the sum of $2,254.65.
10     In the month of January,   1889,  she was outfitted for a
sealing trip on the coast and afterwards received additional ime'% '
supplies and outfit for the Behring Sea voyage which she contemplated taking in pursuit of seals.
Her crew consisted of 14 Indians and 4 white men, including the master. She carried 7 canoes and the stern boat.
She was provisioned for a voyage which would last well into
October or November and the master intended to stay until R 1341,1.1,
1 ^14Q   1    *27
the 10th September as had been arranged with the  owner
before leaving.
20     She sailed from Victoria for Behring Sea in the first part of R 1339
May, sealed on her way up and reached the sea on the 2nd!-42-
July.
She immediately commenced sealing and lowered boats for
the first time on the 10th.   She kept away from the good R 1341,
grounds during the first part of July fearing seizure.    Her 1354,1/33.
catch on the 30th was the largest of the month, viz.: 159 seals.
On the 31st July, about daybreak, when the schooner was
on the sealing grounds and flying the British flag, the United R 1539&1341
States revenue cutter "Rush" came alongside and the com-
30 mandina: officer hailed the vessel and sent a boat on board.
The officer in charge of the boat asked if there were any skins
on board, and when he received an answer in the affirmative,
asked where they were taken, and was told principally in the
Behring Sea. He reported to the commanding officer of the
" Rush," who ordered him to seize the vessel and skins. The
skins were transferred to the " Rush." The seizing officer also
took the ship's papers, and the spears of the Indians, and asked
for their guns. The Indians, however, hid the good guns and
passed up some old ones, which the seizing officer did not R. 1340.
40 take.    There were 13 or 14 spears taken.
The commanding officer of the " Rush " at the time gave
to the master of the schooner a letter dated 31st July, 1889,
certifying that the " Juanita " had been seized for violation of
section 1956, Revised Statutes of the United States, and that
her ship's papers, consisting of registry and clearance, had
been taken possession of by the seizing authorities.
133 R. 1349.
134
THE JUANITA.
After the seizure, the master of the schooner was ordered
to go to Sitka, but came to Victoria instead.
The boats were not lowered for sealing after that date, but
two seals were taken on the way down.
The ship got back to Victoria about the end of August and
was laid up until the opening of the next sealing season.
Legal and other expenses were incurred in the preparation
and presentation of the claim prior to the appointment of this
Commission.
Her Britannic Majesty   claims the following damages as 10
resulting from the premises :—
Illegal boarding, seaich and arrest of vessel $ 2,000 00
Value of skins taken from ship at time of seizure, 622 skins at
$11       6,842 00
14 spears at $3 each        42 00
Ship's papers   25 00
Beiyea's charges  250 00
Time and expenses of owner  200 00
Estimated catch if schooner not interfered with (7 canoes and
1 boat and stern boat sealing from 31st July to 15th Sep- 20
tember, inclusive) 2102 skins at $11    23,122 00
$ 32,481 00
Interest on all above items at rate of 7 per cent from date of loss until payment. 1889.
THE "PATHFINDER."
Claim No. 14.
The | Pathfinder " was a British schooner of 70 tons.
She was purchased at Halifax, N. S., and was the first of the
Et. 1504,
ine 40.
fleet used in sealing* which came around the Horn.    Her cost -„
° K. 104,
to her owners when she arrived at Victoria was about $6,500. line 45.
In 1886, she went on a sealing voyage to Behring Sea and r. 293, line 1.
took 1460 seals.
10     She was fitted out for the season of 1889, with the intention
that she should remain during the whole season.    It was left R. 1505,
to the discretion of the master to determine how long he could
stay, having regard to the condition of the weather.    She was R 1506,
provisioned for a voyage to continue until October.
She carried a crew of 20 men and had five hunting* boats R 767, line 1.
, , & R. 1503,
and a stern boat. line 20.
The I Pathfinder " reached the sea about the 1st of July, r. 767,
and carried on sealing operations until the 29th.    On that day  ne   '
about 10 a. m. she was seized in lat. 57*24 N. and long. 171*55 R. 1503,
20 W., by the United States revenue cutter " Rush," for violation
of Section 1956 of the Revised Statutes of the United States.
The seizing officer removed from the vessel the following
articles, viz :—853 seal skins;  7 shot guns ;  4 Winchester r. 767,
rifles; 300 cartridges, 5 boxes of shells, and the salt which me   '
was on board.    He also took possession of the ship's papers, R ir03
consisting of certificate of Registry and clearance. line 20-
The seal skins, guns, rifles and other articles removed from
the " Pathfinder" were taken to Sitka and there proceeded
against at the instance of the United States' District Attorney
30 and such proceedings were had that they were afterwards condemned and forfeited to the government of the United States
and sold and became a complete loss to the owner.
The shot guns were worth $55 each, and the rifles $26 each. R. 1505,
b line 30-50.
After the seizure, one ofthe quartermasters from the " Rush "
was put on board, and the vessel was ordered to proceed to R lg03
Sitka, instead of which, however, she came to Victoria. line 52.
It appears that some of the hunters had hidden two or three
guns which were left on board.
On the way out of the sea, the schooner lowered three boats r. 758, line 1.
40 and took 50 seals.
Ud to the time of seizure the vessel had experienced fair R- 768,
" line 20-30.
weather, though there were some rough days. It took five or
six days to get out \ f the sea and during all that time the
weather was fine.
135 line 10-60.
R. 77 9
line 10.
136 THE  PATHFINDER.
The day on which the "Pathfinder" was seized is described
by Bissett as a " splendid day," and the schooner at that time
was located among an unusually large quantity of seals.
This is corroborated by Byers, one of the hunters on board
the vessel at the time.
Legal and other expenses were also incurred in connection
with the preparation and presentation of the claim, prior to
the appointment of this Commission.
Her Britannic Majesty claims the following damages as
resulting from the premises : 10
For illegal boarding, search and arrest of vessel  $2,000 00
7 shot guns at $55 each  385 00
4 rifles at $26 each  104 00
Ship's papers  25 00
854 skins seized, at $11 each  9,394 00
Legal expenses  250 00
Time and expenses of owner  200 00
Estimated catch if schooner not interfered with (5 boats
a and stern boat sealing from 29th July to 15th September, inclusive) 2024 skins at $11 each     22,264 00
$34,622 00 20
Interest on all the above items at the rate of 7 per cent from
date of loss until payment. 1
1770,
ne 10.
1993.
1889.
THE "BLACK DIAMOND."
Claim No. 15.
The " Black Diamond " was a British schooner of 82 tons r. isi3,
registered at Victoria.    At the date of the seizure hereinafterline G0'
mentioned; she  was owned and registered in the name' of i
Morris Moss, having been conveyed to him by bill of sale duly ]
registered and dated the 10th November, 1888. R i8C9.
In the spring of 1880 she was fitted out for a sealing voyage
10 to Behring Sea ; her master for that voyage was Owen Thomas,
and mate, Alexander Gault; she carried 10 canoes and one
boat.    She had provisions sufficient to last till the latter end r. 1767,
of October, and was in every way equipped for a successful ^ne,^0
voyage.
The schooner entered   Behring Sea on the 6th and had R 1767,
her first sealing day on the 10th July; on that day she took
76 seals.
On the 11th July, between 12 and 1 p.m., she was seized by r i§04:_
the United States revenue cutter " Rush " being then about 29
20 miles from the nearest land and being at lat. 56*22 N., long.
17C-25 W.
Owen Thomas describes the seizure as follows :—
At the time the cutter was sighted the boats were all out,
but they were all in before the cutter got alongside ; " they r. 1767,
saw the cutter just as well as I did, and they made for the hne.eo.
schooner right away." The boats took 55 seals that day ; it
was a good sealing day ; " they would have had 100 more, I
believe, if they had been left alone. It cleared up nicely. It
was thick as could be all the morning."    We were carrying R. 1768,
30 the British flag at the time of seizure. lme 10*
Q. " What took place when you were boarded ?
A. " Well, he came alongside, and he says to me, ' Well, R. 1768,
Captain,' he says, ' I have caught you right in the act.'    Sayslme 15'
I,  ' Whats that' ? Says he, ' Catching seals.'    ' Well,' says I,
' that is what I am here for,' and he jumped on deck and he
asked  me to show my papers,  so I did, and he wanted to
take them away, and I wouldn't give them to him ; he went
on deck and waived his handkerchief, and the cutter came
along again, and another boat's crew and another officer, and
40 he went aboard, and he came back again. Then he ordered
the skins taken out ofthe hold, the 76 I had salted, and he went
aboard there again. Then he came .back and the master of
arms with him. He asked me again for the papers; says I,
' I will show them to you, you can copy them off, but I shan't
deliver them to you.' He says, ' You must give them to me;'
says I, ' I won't give them to you,' and he told the master at
arms to bust the locker, and so he did."
They took the 76 salted skins and two sacks of salt, and
left the seals killed that day on the deck.    They then put a
50 man from the " Rush" on board and told the master to proceed
b s—18 137 138
THE  BLACK  DIAMOND.
R. 1769,
line 1.
R. 1804.
R. 1825,
line 54.
to Sitka, who told them if they wanted the vessel at Sitka, to
put a crew aboard, and they put one man aboard ; then the
cutter left. The master did not proceed to Sitka ; he was told
there was a British man-of-war at Ounalaska, and he went there.
The next day was calm and he could not move, caught about
11 seals from the vessel that day. They did not lower a canoe
after they were seized, except to pick up those 11 seals; there
were plenty of seals around the vessel when they killed the 11.
Four days after they were seized they reached the bay outside
Ounalaska; they went there without losing any time. 10
The master further testifies :—
"I had been told there would be a British man-of-war
there, and I wanted to get some satisfaction before I left the
sea about their seizing my vessel. I couldn't get to Ounalaska,
the wind died away right in the bay there, and I ascertained
from a schooner coming out that there was no British man-of-
there ; then I went right out of the sea that day and
proceeded to Victoria."
The Indians told the master that if he did not go to Victoria,
they would put the "Rush's" man out ofthe way, so he went 20
to Victoria to save trouble.
The officers from the " Rush " had taken away the Indians'
spears; and guns were on board but the Indians were not
good shots, and not accustomed to using guns, and the means
were not on board of making more spears.
The stern boat would have gone out in the afternoon of the
day of the seizure, as it would have on any good sealing day.
The duties of the deck hands would not have prevented them
from going out.
■ Captain Shepherd's report of the seizure states that on July 30
11th, lat. 56*22 N. long. 170*2i W., the west end of St. George
Island, bearing N.E. f N., 29 miles distant, " I seized the British
" schooner ' Black Diamond' of Victoria, B.C., Owen Thomas,
"master, for violation of law, section 1956, Revised Statutes
" of the United States.
" She entered Behring Sea on July 3rd, and when boarded
" was found to have on board 76 fur seal skins in salt, and 55
" dead fur seals, recently killed, and not skinned, on deck, all
" of which the cap'ain reported to have taken July 10 and 11.
" Her crew consisted of five white men all told and 20 Indians, 40
" including one woman, of the Ahauset tribe of Vancouver
" Island. When boarded Captain Thomas declined to exhibit
" or surrender the vessel's papers, and Lieut Tuttle (by my
" order) was obliged to break open a locker in the cabin to
" obtain possession of them.
"The fur skins and arms, viz., a rifle and 20 Indian spears,
" were taken on board the ' Rush ' for better security, and I
" placed the vessel, officers and crew in charge of seaman J.
" Hankanson of this vessel, with instructions to proceed with
"her to Sitka, and on arriving at that port to report to the 50
" United States District Attorney of the District of Alaska,
" and to deliver to him the vessel, the persons of Captain
" Thomas and mate Gait, and to set the crew at liberty."
Captain Shepherd in his evidence given at Sitka, states as
follows:—
" When the schooner " Black Diamond " was first sighted
she was ' hove-to' under her foresail, with one or more canoes in THE  BLACK  DIAMOND.
139
the water, supposed to be hunting for seal. As we approached
she took up her canoes, made all sail and stood by the wind
to the south and west. The Captain declined to obey our order
to ' heave-to' or stop, until our guns were prepared for running
out to fire on him, and when boarded the Captain recused to give
up or exhibit his vessel's papers, and we were obliged to break
open a locker in the cabin to obtain possession of them."
The seal skins, spears, rifles and other articles removed from
the " Black Diamond" were taken to Sitka and there pro-
10 ceeded against at the instance of the United States District
Attorney, and such proceedings were had, that they were
afterwards condemned and forfeited to the Government ofthe
United States and sold and became a complete loss to the
owner.
Legal and other expenses were also incurred in the preparation and presentation of the claims prior to the appointment
of this Commission.
On account of the illegal seizure the voyage of the " Black
Diamond " was completely broken up.
20     Her Britannic Majesty claims the following damages as
resulting from the premises :—
Illegal boarding, search and arrest of vessel        $2,000 00
76 skins actually seized at $11  836 00
20 spears at $3  60 00
1 rifle  30 00
Ship's papers  25 00
Belyea'sbill  250 00
. Personal expense and trouble of owner  200 00
Estimated catch if schooner  not interfered  with   (10
30 canoes and one boat sealing from 11th July to 15th
September inclusive); 3,500 skins at $11       38,500 00
$41,901 00
Interest on all the above items at the rate of 7 per cent
from date of loss until payment.
H
_^ P^1
App.
197
I
R. 1818,
line 40.
R. 1815,
line 53.
R. 1817,
line 65.
R. 1816,
line 47.
R. 181<
line 1.
1889.
THE "LILY."
Claim No. 16.
The " Lily " was a British schooner registered at the port
of Victoria, British Columbia. She had formerly been known
as the "Alfred Adams," but by Order in Council dated 25th
March, 1888, under the provisions of Section 21 of the Statute
49 Victoria, her name was changed to the " Lily." Her
tonnage was 69 tons.
The owner was Morris Moss and he as well as the master 10
and mate are dead, and no member of the crew could be found
to give evidence. The statement of facts relating to the seizure
was brought to the attention of the Commission through the
means of a statutory declaration made by Morris Moss, the
owner, on the 19th November, 1889^ and the further declaration of John Reilly, the master of the " Lily" at the time of
seizure, dated 11th September, 1889, together with extract
from the official log of the seizing cutter and other document
tary evidence.
The " Lily" carried a crew of 5 white men and 25 Indians. 20
On the 20th May, 1889, she cleared at the Custom house,
Victoria, for a fishing and hunting voyage in the North
Pacific Ocean and Behring Sea. She entered Behring Sea on
the 25th July.
On the 6th August, 1889, whilst she was in the sea, being
in lat. 55*29 N.; long. 166*15 W., at a distance of about 66
miles from the nearest land, the United States revenue cutter
" Rush " overhauled the schooner. She was boarded by the
1st lieutenant, who asked how many skins were on board,
which information the master did not give him. The officer 30
then stated that he wanted to see the schooner's papers.
The master refused to acknowledge his right to seize the
schooner for sealing on the high seas. The 1st lieutenant
then returned on board the " Rush" and after a short time
came back accompanied by another boat of the cutter, commanded by the 2nd lieutenant. Both officers came on board
and demanded the surrender of the schooner and asked at the
same time for the ship's papers. This the master refused at
first and then the 1st lieutenant said that unless the papers
were given up at once, he would take them by force. The 40
master then yielded and handed the papers, consisting of certificate of registry, coasting license and clearance, to the officer.
The lieutenant then ordered the boats' crews to search the
schooner which they did and found and took away 338 seal
skins, all in good order.
140 THE LILT.
141
The seizing officer also demanded that the master should
give him the salt on board, saying at the same time it would
be useless for him to refuse, as he could take it by force. The
master then told him to go ahead and help himself, and two
sacks were taken away. Two letters were given to the
master by the officers. One was a sealed letter, the contents
of which were unknown to the master at the time of making
the declaration, but the other stated that the " Lily " had been
seized for a violation of the United States laws. The schooner
10 was then ordered to Sitka, but, instead, came to Victoria,
where she arrived on the 1st September at seven o'clock in
the evening.
It also appears that the spears of the Indians were taken r. p. isie,
"away at the same time. lineL
The seal skins, spears and other articles removed from the
schooner " Lily" were taken to Sitka, and there proceeded
against at the instance of the United States' District Attorney
and such proceedings were had, that they were afterwards
condemned and forfeited to the government of the United
20 States, and subsequently sold, and became a complete loss to
the owner.
Legal and other expenses were incurred in the preparation
and presentation of the claim prior to the appointment of this
Commission.
30
Her Britannic Majesty claims the  following damages as
resulting from the premises:—
For illegal boarding, search and arrest of vessel $ 2,000 00
Ship's papers    25 00
25 spears at $4 each  100 00
333 seal skins at $11  3,663 00
Belyea's charges  250 00
Time and expense of owner  200 00
Estimated catch if schooner not interfered with (12 canoes
sealing from 6th Aug. to 15th Sept.) 2576 sldns atSll. 28,336 00
$ 34,574 00
Interest on all the above items at the rate of 7 per cent
from date of loss until payment.
J 1889.
THE "MINNIE."
Claim No. 17.
R. 1436,
line 42.
R. 1410,
line 68.
R. 1438,
line 58.
R. 1436,
line 70.
R. 1437,
line 14.
R. 1450,
line 30.
R. 1442,
line 43.
The schooner " Minnie" was owned by Victor Jacobson.
She was a new vessel built at Victoria in the year 1889 ; and
registered as a British vessel, 60 or 70 feet long, 20 feet broad
and 6J feet deep. Register tonnage 49*66 tons. She was
built by her owner especially for seal hunting and was in every
way adapted for that business.
She was fitted out by her owner in 1889 for a sealing voyage
to Behring Sea.
Jacobson says he intended to stay in Behring Sea until 10
10th or middle of September. He had stayed there the year
before in a small schooner, and in the " Minnie," being a larger
vessel, he was not scared with the weather ;_he had provisions
on board sufficient to last him until the middle of October.
Her hunters were particularly good men, both the Indians and
whites.
The schooner sailed for Behring Sea on the 26th May, having
on board eight canoes and two sealing boats, her crew consisted
of 5 white men and 16 Indians. On the way up to the sea
they caught 153 seals. She entered Behring Sea on the 27th 20
June and hunted until the 15th July, up to which time she
had 418 seals including those caught on the way up to Behring
Sea. On that day in latitude 55*11, N., and longitude 165*55
W., she was seized by the United States revenue cutter
" Rush."
The seal skins on board and two guns and a musket, were
taken; also 20 Indian spears, a quantity of salt and the ship's
papers.
A man from the " Rush" was placed on board the vessel
and she was ordered to proceed to Sitka, and on arrival to 30
report to the United States District Attorney for Alaska, and
deliver the master of the vessel and the mate Mag*nesen, as
prisoners to him.
Captain Jacobson, describes what he did after the seizure
as follows:—
" Q. After being seized did you make up your mind to* go to
Sitka as you had been ordered to ?   A. No.
"Q. What did you decide to do ? A. Well, we talked the
matter over, with Magnesen and the other crew, and we
decided like this: I had just built the vessel, she stood me 40
about eight or nine thousand dollars ; if I had gone to Sitka I
would have lost my vessel; If I had gone to Victoria I would
also have lost her. So we concluded to stay here to get some
more seals and then go home, and I said if I get took again,
I am just as well off as I am now, so we made up our minds
142 H4B
THE MINNIE.
143
to go in, in some corner out of the v/ay where the man-of-war
would not find us again, and if he did find us I would be in the
same fix I was before ; no worse.
" Q. You had nothing more to lose? A. Nothing more. I
had lost it already if I went to Sitka.
" Q. You expected of course to be arrested at Sitka ? A.
The young man who handed me the documents told me and
Magnesen, I don't think I could read English at that time,
what we did not understand he read it for us, that we should
10 be arrested as soon as we landed in Sitka and the persons and
papers to be handed over to the marshal.
" Q. You did not care to be arrested ? A. I did not care,
myself, for anything in those days.   I was not going to give up.
" Q. For what part of Behring Sea did you make ? A.
Well, to the north-east, and the safest corner I thought to be
out of the way from being* caught again.
" Q. Had you ever been there ? two years before, you had
beeu to Behring Sea?    A. Two years before, yes.
" Q. Had you been in that corner ? A. No, it was a great deal
20 out of the way, and I thought the man of war had no business round there.
** Q. "DidTy^u expect to find many seals there ? A. Well,
we hunted round and picked up~a few straggling ones there.
""Q". You remained uhtiljwhat time ? A. About the 17th, I
think\   ' W e came out of the Passln August.
"Q. And~in the" meantime you sealed ? A. Yes, up to a
few days before we came out, we sealed right along."
Further on he adds:
" Q. How did you manage to seal after you had been seized ?
30 A. Well, I had some more guns and I made some new spears:
right the next morning* I had two ready before daylight and
made the rest during the day.
" Q. How many guns had you left? A. That I do not remember. ' I may have had ten guns, but I cannot say for certain I don't remember how many I might have had, one for
each boat or so."
Theodore Magnesen, mate and navigator on board the
" Minnie," after describing the voyage to Behring Sea and the
circumstances up to the date of the seizure, says:—
40 I After the seizure we talked the matter over, and we came
to the conclusion that we were not going to leave Behring Sea
unless we were towed out.
" Q. Did you c('me to the conclusion of remaining on the
sealing ground where you were? A. No ; we steered towards
the pass until evening, and in the evening we went up to the
northward and steered to the north-east.    #    #    #    #    #
I We didn't seal afterwards on the day of seizure. The day,
or two days, before seizure we caught the biggest catch we
had, 74.    It was the biggest catch of seals we made.
50 " Q. On the day following seizure where did you proceed ?
A. Went up northward. It dropped calm, and they lowered
the next morning, and they went out with their guns. Cap-
taih Jacobson wasnxing up spears when they were out.    The
R. 1143,
line 24.
R. 1137,
line 40.
R. 143S,
line 1.
iey came oacK again
tl
iey
Indians were not out very long.    T
could not find any seals, and they were not much use with the
shot-guns.    They were good hunters with spears."
And further on, he says:
"When ordered away, we were about latitude 55° 10'North
and about 167 longitude West.     Then we steered towards
60 Unimak Pass for probably twenty miles.
R. 1438,
line 20.
J R. 1439,
line 60.
R. 1447,
line 08.
R. 1450,
line 20.
144
THE  MINNIE.
" Q. On the same day ? A. Yes, until evening; we kept
going to the pass until evening, then we steered up here (indicating) to the north-east, and the next day we lowered boats
and got a few seals, I cannot say how many, probably 18 or
20, and then we worked up here, and done the rest of our
sealing by Anak Island.
"Q. Give the latitude and longitude. A. About 55° 40'
latitude North, and longitude West 163° 40'. We saw Anak
Island on several occasions, and it was bearing north-west to
west, 20 to 40 miles off.    That is where we done our sealing." 10
He proceeds:
" We came out of the Pass on the 17th of August, when
we quit sealing, I should think, on the 12th. We remained
always about the same place, viz., near Anak Island ; never
left that place until we started for home. From the 15th July,
until we left Behring Sea, we took 483 seals.    *&    #    #
" Q. Did you find good sealing ground near Anak Island,
where you remained?    A. No, sir, seals were scarce.
ltX[T~Whj did you leave to come out?    A. Well, the Indians refused to work; in fact, that was the second time they 20
refused to work.
I Q. Why ? A. There were no seals to speak of, and they
were in fear of coming in contact with the cutter again.
1 Q. What kind of hunters had you ? A. We had very
good hunters, we had the pick of two tribes : the Nitnat
and some of the Dodger Cove tribes. The white men were
also good hunters.
" Q. For what time did you intend to remain in Behring Sea ?
A. I should think we would have remained until the 14th
or 15th September. 30
" Q. Was there any talk when you left for Behring Sea as
to the time you would have remained ? A. The talk
between me and Jacobson was that we were going to have
2000 seals, and that we would not come out before we got
them.
" Q. Was there any mention ol the catches having been made
in Behring Sea in September the previous year ?    A. Captain
Jacobson had stayed some time in September the year before.
lie came out some time in September, and the next year I 40
went as master, I came out in September.
" Q. Did you find any seals in September ? A._Yes_sir, I
done well in September ; I got over 300 seals in September."
'"~Q. Well, if you had not been ordered Trom" Behring Sea,
would you have gone towards Anak Island ? A. No, sir^we
would not have sealedjfhere, it is" not a good seajjng' ground.
'nj^Where would you have gone ? A._We would have
remained there on the sealing ground about 55° 10'or 15' latitude N. and_about 167° longitude W.
" OjTThat is well known to  be  a  good  sealing ground ? 50
A. Yes, sir, Captain Jacobson had been there two years before,
and   he knew  all  about  it. We  had very  fine weather in
August."
Further on he says :—
" The seals were very scarce ; he took a small catch every
day, and we worked very hard to get them."
Jacobson says they also got eight sea otters.
Captain Shepherd in his report to the secretary of the treasury, dated August 9th, 1889, says :—
" July the 15th, I seized, latitude 55° 11' North, longitude 50
165° 5d'*W., west end of Unimak Island, bearing S. E. by E. ratal
THE MINNIE.
145
52 miles distant, the British schooner " Minnie ", Victor
Jacobson, master and owner.
" She had been in Behring Sea since the 27th of June and
was found tqhaye 418 fur seals on board, about 200 of which
the captain admitted had been taken in Behring Sea.
" I placed the vessel and her officers in charge of seaman
Swanston of this vessel with instructions to proceed forthwith
to Sitka, and on his arrival at that port to place them in charge
of the United States District Attorney for the District of
10 Alaska, and to set her crew, viz.: 3 white men and 16 Indians, at liberty."
The same fact is entered in the log of the " Rush ".
The seal skins, spears, and other articles removed from the r. 1450,
" Minnie ", were taken to Sitka and there proceeded against ne   '
at the instance of the United States district attorney, and such
proceedings were had that they were afterwards condemned
and forfeited to the Government of the United States, and App. b. 270.
sold, and became a complete loss to the owner.
20 Legal and other expenses were also incurred in preparing
and presenting the claim prior to the appointment of this
Commission.
Her Britannic Majesty claims the following damages as
resulting from the premises :
30
For illegal boarding, search and arrest of schooner.
20 spears at $3	
1 gun	
1 gun	
Ship's papers	
Belyea's charges     	
Time and expense of owner	
2,000 00
60 00
65 00
10 00
25 00
250 00
200 00
App. B. 290
420 skins actually seized at $11       4,620 00
Estimated catch if schooner had not been interfered with
(8 canoes and 2 boats from 15th July to 15th September, less 483 skins actually taken), 3017 skins at $11..  33,187 00
$40,407 00
Interest on all the above items at the rate of 7 per cent from date of loss until
payment.
BS—19
J App. B. 226.
R. 1419,
line 30.
R. 1421,
line 45.
R. 1419.
R. 1420,
line 10.
R. 1420,
line 41.
1
1889.
THE "TRIUMPH."
Claim No. 18.
The schooner "Triumph" was a British vessel of 106,tons
register. She was purchased in Nova Scotia in 1887, and
cost, laid down at ^Victoria, the sum ofl$8,250. After arrival
at that port she was coppered at a cost of $1,117.
In 1888, she went upon a sealing voyage to the North
Pacific Ocean and Behring Sea and made a catch of 2500 skins,
1803 whereof were taken in Behring Sea. 10
The outfit for the season of 1889 was obtained partly at San
Francisco and partly at Victoria, the expenditure at the
former place being $2,975.19, and at the latter $1,428.58.
Advances were made to the crew, amounting to $1,692.51.
The total investment, therefore, which was at stake in the
sealing voyage of 1889 was $15,425.23.
In outfitting it was the intention that the voyage should last
as long as the master, Daniel McLean, could possibly remain
in the sea.
On that point the evidence of Mr. Baker, one of the owners 20
is as follows :—
" Q. I believe that you did outfit the vessel in the very best
way ? A. Yes, we gave her everything that it was possible
to give her.
" Q. Did you give him any instructions as to the time that
he should stay in the sea? A. Well, of course, I am not
really positive as to instructions, I was simply one of the
partners managing the affairs of the schooner, and a, good
deal, necessarily, would be left to McLean's discretion because
it was he that got me to go into that venture. Naturally, I 30
would be guided by his report as to the circumstances when
he was to return. But it was distinctly understood between
him and myself that he would remain there to the very last
of the season that he could catch seals, so as to ascertain, if
possible, how long that season really did and could last.
" Q. Was there any understanding at all to that effect ?   A.
Yes, he was to remain there until late in September.
" Q. That was fully understood ? A. Fully understood between him and me. In fact he wanted to know something
about what became of the seals after they left the sea, includ- 4Q
ing the Pribyloff Islands. He wanted to go a little voyage of
discovery to a certain extent, and trace them and probably do
some sealing at the same time.
"Q. It was mentioned between you, or understood, that he
could stay there until pretty late in September ? A. Oh, yes.
The previous year he had come back on the 10th of September, and he had everything on board that would enable him to
stay there until the end ef the year for the matter of that.
" Q. In 1889 ?   A. Yes.
146
i THE triumph. 147
" Q. He had an amount of provisions to get home in the
latter part of September? A. Oh, yes, to the end of the
year."
The " Triumph " carried a crew of 32 white men, including r. 1422,
the master, eight hunting boats and the stern boat.
She cleared in the spring of 1889, for a sealing voyage to the r. 1418.
North Pacific Ocean and Behring Sea, and entered Behring
Sea on the 4th July and commenced sealing. Between that R. 1430,
date and the 11th she took 72 seals. On the 11th of July,
10 when she was in Lat. 56*05 N.; Long. 171*23 W., at about
8.30 a.m., she was hailed by the United States revenue cutter
I Rush," a boat was lowered from the cutter in command of
Lieutenant Tuttle, who boarded the schooner, demanded the
papers of the vessel and after reading them proceeded to
search the vessel. Finding no evidence of seals on board, the
officer informed the master that orders.had been issued by the
Secretary of State under the proclamation of the President, instructing the  commanding officer of the revenue cutter to
20
seize all vessels found sealing in Behring Sea. The officer
also said that if he should again find the schooner with skins
on board that he would seize and confiscate the vessel and
catch. He further stated that he had already seized the
" Black Diamond " and that she had been sent to Sitka.
Under terror of the threats and action of the officer, the
master immediately discontinued his voyage and proceeded to
Victoria, arriving there on the 28th July.
There is a special question arising in this case to which
reference should be made. Twenty-two shares of the schooner
were registered in the name of one Daniel McLean, who, it
30 was alleged was naturalized as an United States citizen, in
the year 1882.
This becomes immaterial, as it was proved by the evidence r. 1955,
for Great Britain that he had been re-naturalized as a British R.ei956,
subject before he acquired an interest in the Triumph. k 1957,
line 35.
Another question rai3ed was that before the commencement
of the season of 1889, Baker had entered into a contract with r. 1452,
Liebes & Co. to sell his catch at $6.25 a skin, and it is claimed
that no more can be recovered.    A sufficient answer will be
found in the fact that the contract with Liebes  & Co. was r 145^
40 subject to certain conditions which were of an onerous nature, Rnep4i454.
namely the sending of a steamer to some point near Behring
Sea, to take a transfer of the " Triumph's " catch and bring it
to Victoria.    This condition was made necessary through fear
of seizure.    It would therefore, be manifestly unjust for the
United States Government to claim the benefit of a contract
which would never have been entered into if they had not
committed and threatened to repeat acts now declared by the
Paris Tribunal to have been a breach of international law.
— R. 1433,
line 27.
148
THE TRIUMPH.
Again, it is contended by Great Britain that the United
States being wrong-doers cannot take advantage of a contract
of this kind to lessen the damage payable on account of the
tortious act complained of.
In consequence of the breaking up of the voyage, Baker
determined to abandon the sealing business and sold the vessel
and equipment at a very large loss to the owners. It is
submitted that in assessing the amount of compensation to be
awarded, this fact should be considered. The evidence shows
that the schooner and sealing outfit was actually sold for $9,000. 10
Legal and other expenses were incurred in preparing
and presenting the claim prior to the appointment of this
Commission.
Her Britannic Majesty claims the following damages as
resulting from the premises:—
Illegal boarding and search of the vessel	
Legal and other expenses ,  .
Time and expense of owner	
Estimated catch (8 hunting boats and stern boat froir
11th July to 1st October) 3,500 skins at $11	
Interest on all the above items at the rate of 7 per C6nt.
from date of loss until payment.
$ 2,000 00
250 00
200 00
38,500 00
20
40,950 00
M
lA 1889.
"THE ARIEL."
Claim No. 19.
The "Ariel" was a British schooner of 91 tons, registered
at St. John, N.B.
In 1889, she was outfitted for a long season. The master
says that in the spring it was his intention to try the October
sealing in Behring Sea, and he outfitted to remain for that
period. At the beginning of the voyage he made a special
10 agreement with his crew to that effect. This latter statement
is corroborated by the testimony of Smith and Gerow, who
were hunters on board the " Ariel."
The determination to so remain in the sea was based upon
information which had, prior to the time of sealing, been
obtained by the master and hunters from the crews of whaling
vessels and other sources.
^0 The "Ariel" carried a crew of 22 whites, 2 Indians and a
Chinaman, and had 6 hunting boats, one hunting canoe and
another canoe used as a stern boat. The hunters were first
class men.
The vessel left Victoria for Behring Sea on the last day of
May or early in June, and entered the Sea on the 13th of July.
Before entering the sea, the seals caught on the coast were
transferred to the schooner " Wanderer " at Shumigan Island
or Sand Point.
On the 30th July, about 6 a.m., the American revenue
30 cutter " Rush" came alongside the schooner, which was
then among the seals and had run up the British flag, and
sent officers on board to examine and search the vessel. Inquiries were made as to the number of crew on board, the time
of their entering Behring Sea, and the number of seals taken.
The officer of the " Rush " also warned the schooner that
if caught with fresh skins on board they would be seized.
On account of the fear inspired by the action of the cutter, the
boats did not go out at the usual hour in the morning. The
seals, however, were very plentiful about the ship ; the
40 witness Smith says, they were thicker than he had ever seen
them before at any one time. Therefore, about 9 or 10
o'clock in the morning, after the cutter had left, it was
thought the boats could make a catch without being observed
by the steamer though its smoke was still in sight. The
orders were to remain near the schooner. Some of the boats
in their eagerness to .catch seals got out of sight.    On the
149
R. 1459.
line 50.
R. 1460,
line 3.
R. 1467,
line 50.
R. 1485,
line 10.
R 1487,
line 50.
R. 1488,
line 20.
R 1484,
line 60.
R1487,
line 50.
R. 1490,
line 21.
R. 1487,
line 50.
R. 1494,
line 30.
R. 1460,
line 30.
R. 1461,
line 16.
R. 1461,
line 30.
R. 1461,
line 37.
R. 1461,
B. 1462.
R. 1467,
line 64.
R. 1484,
line 5.
R. 1462,
line £2. 150
THE  ARIEL.
R. 1483,
line 65.
R. 1488,
line 60.
R. 1489,
line 55.
R. 1480,
line 25.
R. 1463.
R. 1463,
line 50.
R. 1463,
line 10.
R. 1464,
line 50.
other hand, others remained on board most of the day through
fear. The witness Gerow says that but for this circumstance,
he would have got 30 or 35 seals that day, instead of his
actual catch of 5 or 8. Notwithstanding these interruptions
the schooner took 120 seals that day.
On the 1st August a thick fog came up at times ; the boats
were all out, but in the evening one of them did not return,
having been lost in the fog. On the 2nd August a strong
breeze was blowing and the schooner started a search for the
boat.    The wind afterwards   increased to  a gale,
missing
10
20
obliging the vessel to heave to for the rest of the day. The 3rd
August was still stormy and so was the 4th, and the whole of
that day and the 5th was spent in looking for the boat. On
the 6th August the boats were out and got three seals only.
The 7th was a fine day and the boats took 65 seals. On the
8th which was a rainy day and thick weather, the schooner
"LillieL." was spoken and reported news of the missing
boat. On the 9th the boats were out and took 26 seals. The
10th was a lowering day, but the weather was not such that
the boats could go far from the ship, and only 15 seals were
taken. On the 11th the boats were out all day and took 45
seals. The 12th was also a lowering day and the boats were
out most of the time and brought in 25. No sealing was
done on the 13th. The 14th was a lowering day with 14 seals
for the day, and on the 15th, 111 seals were taken and 12 on
the 16th. On the 17th the wind was south-west and the
weather foggy. The vessel was lying under mainsail—1 seal was
shot from the deck by James Shields and many others were
seen from the vessel during the day. On the 18th, the entry
in the log of the schooner reads:
" First part of the day moderate breeze with fog at times
Boats out and returned at 10 a.m. with no seals except Walker
who brought in one. At 11 a.m. spoke the schooner ' Mary
Delio ' again. They report that 12 vessels had been seized up
to the 12th August, many of which are Victoria vessels, among
them being the ' Black Diamond' ' Minnie ' ' Pathfinder'
' Viva,' ' Mary Taylor,' &c, also the schooner ' Lottie'
which picked up our lost boat and men. Have now decided to
leave the sea at once at it is quite clear that many seizures will
be made this season, perhaps all the vessels that remain in the 40
eea. The schooner ' Mary Ellen' is reported to have thrown
overboard 700 seal skins while the cutter ' Rush' was running up on her, which probably saved her from being seized."
30
R. 1467,
line 30.
R. 1484,
ine 10.
The "Ariel" passed the 19th in Four Mountain Pass, working her way out of the sea. She also was there, with light
variable winds, on the 20th, and on the 21st got clear of the
Pass and made for Victoria.
It was the intention of the captain, if he had not been inter,
fered with in July, to have sealed during the season to the
W. S.W. of the Pribylov Islands, working from that position 50
around to the W. N.W., and finally to the W., within a radius
of from 60 to 120 miles of the Islands. But after having
been warned on the 30th July, the master says that this course THE   ARIEL.
161
was changed, and from that time forward the schooner left the
good sealing grounds and orders were given to the boats to
keep ahead of the vessel which was working slowly to the
south in order to be near the Pass and ready to leave the sea
at once if the cutter should again appear in sight. This evidence R. 1490
is corroborated by the witnesses, Smith and Gerow.
Legal and other expenses were incurred in preparing and
presenting the claim prior to the appointment of this Commission.
line 21.
1ft     Her Britannic Majesty  claims the following damages as
resulting from the premises :—
Illegal boarding and search of the vessel $   2,000 00
Legal and other expenses.  250 00
Time and expense of owner  200 00
Estimated catch (6 boats and 1 canoe, from 30th July to
1st October, less the 485 skins taken after warning),
1,601 skins at $11       17,61100
$20,061 00
Interest on all the above items at the rate of 7 per cent
from date of loss until payment. 1889.
THE "KATE."
Claim No. 20.
R 1394
line 44.
R. 1377
line 60.
R. 1376 and
1395.
R. 1378,
R. 1386,
line 2.
The | Kate " was a registered British schooner of 58 tons.
In 1889, after sealing on the coast the schooner entered
Behring Sea on July 24th, for the purpose of sealing, being
fully equipped and provisioned.
She had eight canoes and one stern boat, four white men
and the balance of the crew were Indians. Neal Moss and
Alexander Reppen were respectively master and mate. 10
1378, line 20. On August 13th, the | Kate " was ordered out of Behring
Sea by the United States revenue cutter " Rush." She was
then in latitude 54*45 N., and longitude 165*50 W. On that
date the following entry was made in her log:—
" 13th August, at 6 p.m., sighted a steamer ; wind increasing with heavy sea. At 7 p.m., sighted the revenue cutter
' Rush,' pumps light, and was spoken by her ordering the
schooner out of Behring Sea.    Hove to during the night."
A heavy south-westerly breeze was then blowing and the
vessel immediately made for Unimak Pass. 20
Reppen says:—
" The same day we were seized we were going north.
" Q. So that day you were not making for Unimak Pass ?
" A. We turned right around, we steered for Unimak Pass
after we were ordered out.
" Q. Every day after you were warned out, your course bore
in the direction of Unimak Pass as fast as you could. A.
Yes, couldn't do it' any faster on account of weather and wind.
We were becalmed one day, then we had nasty weather and
fog-" 30
Neal Moss gives evidence to the same effect by referring to
the entries in the log.
In thus making for Unimak Pass they lowered and took
seals as follows :—On August 14th, 10 seals; on August 15th,
57 seals; on August 16th, 1 seal shot from deck.
The vessel came through the Pass on August 18th, and on
her way to Victoria, where she arrived on September the
10th, she stopped at three different trading stations. She
could as well have stopped there fifteen days later. 40
She landed provisions at one ofthe trading stations and had
a quantity left when she arrived at Victoria.
The schooner would no doubt have remained in Behring
Sea until the end of September, had she not been ordered out.
In this connection Neal Moss says:—
" Q. Now, tell me, Captain, what were your instructions as
to the time you should stay in the sea. A. My instructions
were to stay there as long as the weather would permit.
152
R. 1386-7.
R. 1378-9.
R. 1388.
R. 1379.
R. 1381.
R. 1380,
line 28.
R. 1387. THE  KATE. 153
Q. " As a matter of fact what caused you to leave when you
did leave?    A. On account of being afraid of seizure if seen
" Q. Any other reason ?   A. No, not that I know oi.
" Q. If it had not been for your warning would you not have
gone or would you have gone ? A. We would have stayed
there.    We had a lot of provisions and water, and everything.
" Q. Was there anything in the state of the weather to drive
you out of there ? A. No, not then. It was all right. We
10 might get a day's blow, but then we didn't mind that. I expected lots of fine weather after that day."
See also Reppen's evidence on the same point. R. 1385,
line 58.
Legal and other expenses were incurred by the owner, in
preparing and presenting the claim prior to the appointment of
this Commission.
Her Britannic Majesty claims the following damages as resulting from the premises :—
Belyea's charges $       250 00
Time and expense of owner  200 00
20 Estimated catch if schooner not interfered with (8 canoes
and 1 stern boat, from 13th August to 1st October,
less 68 skins actually token after warning), 1,994 at
$11       21,934 00
$22,384 00
Interest on all the above items at the rate of 7 per cent
from date of loss until payment.
,
b s—20
3 18»0.
R. 781-2.
R. 821.
R. 781,
822-3.
R. 823.
THE "PATHFINDER."
Claim No. 21.
r. 821-3. In March, 1890, this schooner was engaged sealing in the
neighbourhood of Neah Bay, with a crew of white men, and
equipped with five boats and a stern boat. One Marvin, now
dead, was captain, and one Alex. Reppen was mate.
On 26th March, while off Cape Flattery, her rudder was
damaged and she put in Neah Bay for repairs.
R. 782, & 822.     The repairs were completed and she intended to leave the
next morning.   Neah Bay is about 20 miles from the sealing in
ground.
Early in the morning of the 27th, an officer from the United
States cutter " Corwin " boarded the " Pathfinder," examined
her papers, seized the vessel, sent a crew on board with a tow
line, and towed her from Neah Bay to Port Townsend, a distance of about 60 miles; the voyage lasted from 6 a.m. till
noon. Port Townsend is out of the sealing ground. On the
way and while at Port Townsend an officer from the cutter
remained on board the " Pathfinder."
The crew were kept on board (though some of them asked 20
to go ashore) the whole of the 27th, the 28th and part of the
29th, when the schooner was released.
The following telegrams were exchanged in connection with
{he arrest and release of the " Pathfinder" :—
r. i8io. On 29th March,  1890, C. L, Hooper, commander of the
" Corwin," telegraphed to the Secretary of the Treasury at
Washington :—
"I found at Neah Bay to-day British schooner 'Pathfinder.'
Escaped from steamer ' Rush' after seizure in Behring Sea
last year.    Have detained and brought her to this place and qq
transferred to custody of collector of customs pending advice
from the department."
On the same day C. M. Bradshaw, collector of customs at
Port Townsend, telegraphed to the Secretary of the Treasury
at Washington:—
"Am detaining British schooner ' Pathfinder ' and waiting
instructions; please advise."
On the same date again, G. B. Tichnor, Assistant Secretary
of the Treasury, telegraphed to the collector of customs at
Port Townsend :— 40
"In the year 1887 the department in a case quite similar,
but in some respects stronger, for the department decided that
the vessel could not be held. In view of that precedent,
without now reviewing the principles upon which it proceeded,
I direct release of the ' Pathfider.' "
154 THE PATHFINDER.
155
The schooner was accordingly released. If she had not been
interfered with she would have resumed sealing on the 27th
of March, and no doubt would have continued for 6ome time,
but under the circumstances she went to Victoria.
The locality in question was always considered a good sealing
ground, the best in that vicinity ; it was much frequented by
sealing vessels at that time of year. It was the time of year r.
when seals were caught in that neighbourhood. Most of the
sealers go there every year and very good catches are made.
10 During the time that the " Pathfinder " was detained under
arrest the weather was good, and other vessels lowered their
canoes from day to day.
Had the " Pathfinder " not been interfered with she would
no doubt have caught at least 100 seals.
782 & 607.
Legal and other expenses were incurred by the owner in
preparing and presenting the claim prior to the appointment
of this Commission.
Her Britannic Majesty claims the following damages as resulting from the premises :—
29
Illegal boarding, search and arrest of the vessel ..
Estimated catch, 100 seals at $15	
Personal and legal expenses	
$   2,000
1,500
200
$3,700
Interest on all the above items at the rate of 7 per cent
from date of loss until payment.
J R. 1650,
line 40.
R. 1667,
line 60.
R. 1661,
line 45.
R. 1662,
line 20.
li
1892.
THE "HENRIETTA."
Claim No. 22.
The " Henrietta " was a British schooner built in the year
1886, registered at the port of Victoria, 52*6 ft. long, 19*6 ft.
in breadth and 5 ft. in depth ; her registered tonnage was 30*52.
At the time of seizure hereinafter mentioned, the schooner
was owned by Charles Spring and James Fell.
In the spring ofthe year 1886, the "Henrietta " started for
a sealing voyage to the North Pacific Ocean and Behring Sea. 10
Her master was Micajah Pinckney.
She carried three boats and eight canoes when she cleared
from Victoria, but before entering Behring Sea she left six of
her canoes at Tonki Bay.
On the 4th September, 1892, whilst in the open waters of
Behring Sea, 70 miles from land she was boarded by an officer
from the United States ship " Yorktown." Captain Pinckney
describes what took place as follows:—
" We were flying the British flag. The boarding officer
demanded the ships papers. After I objected he said that he 20
was there for that purpose, and he was bound to have them ;
then after I gave them to him, he wanted the guns ; after he
gbt the guns, he ordered my white crew into the boats'and
took them away in the ' Yorktown.'
" All but myself and the cook were taken. An officer from
the ' Yorktown' remained on board with six men, with
instructions to make sail towards Ounalaska. The weather
was very rough at the time and the ' Yorktown' could not
take us in tow. The schooner sailed to Ounalaska in charge
of the ' Yorktown's' officer. We arrived at Ounalaska on 30
the 5th September.
" Q. Did anything take place at Ounalaska ? A. Well the
officer was on board. He went on board of his own ship and
he left a couple of men on board to take charge ofthe schooner,
and then the officer of the ' Corwin' came on board. He said
that the vessel had been turned over to him ; that he would
put a watchman on board and not allow anyone to go onshore
from on board the vessel.
" Q. What took place next ? A. Well, I think that it was
the next day, Captain Hooper sent for me. Previous to that 40
he sent for the cook ; then after the cook came back he sent
for me, and on going on board he said that he had been informed that I had violated the customs laws, and that he was
going to tow me to Sitka, and put me before the United States
District Court, and if I got clear he would tow me to Victoria.
" Q. Were you told before that day that yon were arrested
for having violated the revenue laws? A. The officer that
boarded us did not say that, he wanted to count the skins, and
I said why not let them be until we get in ; he said, I want
to get them ready so as to.turn them over to the British man- 50
of-war. ,
156 THE  HENRIETTA.
157
" Q. Giving you to understand what ? A. He gave me to
understand in our conversation that we would be turned over
to the British man-of-war.
" Q. But he didn't say in any way nor in expressed terms
that you were seized for having violated the modus vivendi f
A. Well, when I objected to being seized, I told him that the
modus vivendi had expired as I understood at the end of May,
and he said that it had been renewed ##-*■* On the
9th of March, the " Corwin" came alongside, took us in tow, R. 1663.
10 and proceeded towards Sitka, still leaving the prize crew on
board. After leaving Ounalaska the tow rope parted in a gale
and we were ordered to sail to Sitka, which we did. The
schooner arrived at Sitka on the 20th September.
" The next day, Captain Hooper took the skins off and took
them ashore. There were 420 skins, and then the schooner
was turned over to the United States Marshal, who sent a man
on board and took charge of her."
The  master remained on  the schooner for a day and then
went ashore; after his arrival at Sitka he was not interfered
20 with personally.    He remained there for 2 days and then went
to Victoria. He had no money to pay his passage, but arranged
to pay it at Victoria.
The crew were kept at Sitka, both Indians and white men.
The master does not know what became of the Indians after
the skins were taken from the ship.
When the master left Sitka, the crew were in jail.    He was
at the jail the day before he left and saw them.    He thinks
they were put in there to prevent  them from going away on
the   steamer   in   which   he   went   to   Victoria,   viz:—the
30 I Coquitlam."
The master paid $50 to go to Victoria, and he incurred a R. 1664.
small expense at Sitka. He says that he went to Victoria to
report to his owners, where he remained until the following
July, when he heard that his vessel was released. He then proceeded to Sitka again, and found that the authorities had
received orders to release the vessel, but they refused to deliver
her to him, and she was not actually released until the 23rd
November, 1893.
Her master further says that whilst at Victoria, he incurred
40 an expense of about $600 from the time he got down in September until he got back to Sitka in the following July, and
that this was outside of his passage money which cost him $50
each way. After the vessel was delivered to him he was
delayed for some time, and sailed from Sitka about the 20th
or 23rd January, in the " Henrietta " and arrived in Victoria
on the 17th February, 1894.
Being asked what caused this delay, he answered:—
" Well, we had no provisions, and had no way to get any."
He states that the vessel was looking pretty well bleached ;
Kn her rigging had been lying on her and the rain and frost put
it in bad condition.    He had to get a new foresail and a lot of
running gear.    He got away as soon as he could.
Whilst at Sitka he incurred considerable expense both on
personal account and in getting the ship in order. His personal expenses amounted to $148. R. 1665.
R. 1666.
m
R. 1667.
R. 1671.
R. 1670,
line 35.
R. 1672,
line 52.
R. 1674,
line 60.
R. 1675.
158
THE  HENRIETTA.
The 420 skins that had been seized were delivered back to
him a few days after the vessel was returned; they were somewhat gnawed by rats. They were gnawed all round the edges
where they were piled. He was compelled to dispose of 105
skins to purchase provisions necessary to take the vessel to
Victoria. He borrowed on these skins two sums : $469.15
and $56. A portion of which was used to purchase provisions, ropes and chains, and the balance for the crew. He
produced an inventory of the provisions and other articles
found on board the " Henrietta" when she was delivered i o
backhand states that eight guns and one rifle had been taken
and that they were damaged when they were returned. Three
boats had been taken; which were in good condition at the
time but they were returned in bad condition, much broken
and worn out. They were no good whatever ; they had been
used at Sitka with the consent ofthe United States authorities;
hired out to any person that wanted them. This was proved
by the production of the orders to give the boats to the parties
requiring them.
The vessel when she was delivered back had a good many 20
worm holes in her below the water mark, where the boats had
chafed the paint off; no care had been taken of her.    Before
the seizure, when at Tonki Bay, Pinckney had beached her
and examined her bottom and found no worm holes then.
The vessel had not been copper painted and her centre
board was badly damaged. Her running gear was quite
rotten ; her upper sails were all right except the main top
mast stay sail which had been left down in the hold was
mildewed and rotten and of no value.
Pinckney further says :— 30
" Q. Was the ' Henrietta' in a seaworthy condition in
November, 1893 ?
" A. Well, she managed to get down here (Victoria). She
was leaking a good deal when she was turned over to us; we
had to keep pUmping very often.
" Q. But it was not necessary to make any repairs when
you did start down ?
" A. No, I thought we could keep her afloat.
" The skins were damaged by rats to the extent of about $3
each or something like that." 40
Thomas J. Hampton was cook on the " Henrietta " at the
time of seizure, and was left on board until she arrived at
Sitka, where he remained until January, 1894; he could not
get away, having no money, and remained on the vessel all
the time.    He testifies :
" Q. Were you occupied a part of the time ? A. When the
mail boat would come in from Port Townsend we could go
ashore and work a few hours to keep in existence by fishing
and selling fish to the soldiers and men-of-war stationed there;
we used to make an existence that way." 50
" Q. Did you try to get your passage down ? A. Never
could get enough money ahead to get a passage down ; it cost
$30 steerage passage. The mate, one seaman and myself remained in this manner, and came back in the vessel to Vic- THE  HENRIETTA. 159
toria; the others had left before. The Indians had left previously in an American schooner to Port Townsend. They
took their canoes with them. They left about June or July,
1893.    They stopped all winter on board the " Henrietta."
William Ebmeier, a seaman on board the "Henrietta"
states that after the seizure he was transferred to the " York-
town" and taken to Ounalaska; thence on board the " Corwin"
to Sitka. Whilst he was on board the " Yorktown," he was r. ig76.
called into the cabin, put under oath by the chief officer, and
10 questioned. Six ofthe crew were thus examined. They were
questioned about going into Behring Sea ; and as to what the
vessel had been doing from the time they left the coast until
she was seized.
Whilst at Sitka, the news came that the steamer " Coquit-
lam " was coming there and the crew tried to get a passage;
they had the promise of a passage, but the Sheriff came on
board with a warrant and took them into the jail and shut
them up and kept them there; all the crew were shut up>
except the master and cook, until after the steamer " Coquit.
20 ]am " left the wharf. If they had not been so shut up they
would have had a passage down. The purpose of keeping
them was that they were wanted for the trial. After the
steamer left they were put under their own recognizances to
appear at the trial.
Csesar Doering, a boat steerer on the " Henrietta," after cor- R. 167
roborating the evidence of Ebmeier, states, that he remained
at Sitka about five or six months ; that he was lucky enough
to get a passage with the Captain ofthe "City of Topeka" to
Victoria.    He had not a cent to pay for his passage; none of
30 the crew had any money. He had to work his passage down.
He afterwards borrowed $30 to pay the fare of Henry Jacob-
son, another of the crew.
James Fell, who was part owner of the "Henrietta" in R 174
1892, saw the vessel after she came back from Sitka, between
the 22nd and 26th March, 1894.    She was in an unseaworthy
condition.     He  said :—" She was just what you might call a
patch-up to get down here (Victoria) and no more; everythin
was worn out."
*g
The price asked was $1,500.    Fell took some of the guns
ou
tof her, a chronomet er and a lot of sundries.    He sold the
"Q. What was worn out, especially? A. Well, her sails
40 and ropes, and they told me they had to borrow ropes from
the cutter to get her down with ; she had no paint on her. I
cannot say anything about the worms, but she was leaking
very badly. I had to pump her out every morning. I neglected it one Sunday and she was terribly by the head; in
about another 24 hours she woul 1 have sunk. About two or
three days after I saw her, I got a party to go down and look
at her. He wanted her for immediate use and I asked him a
price, and he said to put her in a seaworthy condition-at once
would cost a great deal more than she was worth, and he
50 would have nothing to do with her."
1748,
eight guns and a rifle all damaged for $1,00. liue 20- 160
THE  HENRIETTA.
R. 1733.
R. 1734,
line 50.
R. 1737.
R. 1650,
line 60.
The vessel was afterwards sold by the Sheriff of Victoria on
an execution issued at the suit of McQuade & Sons against
Charles Spring. His interest, only, was sold under the execution for $1,000 to Charles Hackett.
Charles Spring says he was managing owner of the " Henrietta." She was in very good condition when she left for her
sealing voyage in 1892 ; he saw her at Kyuquot when she
was leaving.
Spring at this time was trading at Kyuquot and spent
nearly the whole of his time there. He heard of the seizure 10
from Captain Pinckney when he came down from Sitka in
1892. He was not in Victoria when Captain Pinckney went
to Sitka in July, 1893, and he had no idea that Pinckney was
intending to go there. Spring was then at Kyuquot attending
to his business; he did not authorize Captain Pinckney to take
delivery of the vessel nor did he receive any letter from him
whilst he was there (Sitka), in 1893.
Spring was not at Victoria when the " Henrietta" came
back; he was still at Kyuquot. She was repaired when he
came back. 20
Spring further says that he would have used the " Henrietta "
during the months of December, January and February in the
coasting trade, and for that purpose she would have been worth
$250 to $300 a month, and after that he would have fitted her
out for sealing for the year 1893 ; and he further states that he
himself was put to considerable personal expense in the
matter.
William Turpel, a ship-builder, states that he knew the
"Henrietta" in 1891, when he hauled her on his marine railroad and repaired her. He gave her on that occasion a 30
general overhauling; made new bowspirit, new main mast;
put a new shoe on her, caulked her and did everything that
was necessary. The repairs cost about $290. She was then in
first class condition. He states that at that time she would be
worth about $4,000. She was seemingly very nearly new and
in good condition. She was a shallow vessel, not very deep in
the hold, but a good vessel.
With the view of ascertaining whether the " Henrietta"
had been guilty of a breach of the revenue laws of the
United States, her crew were examined on oath by the officer 40
of the I Yorktown " as above stated, and from information so
obtained the commander of the revenue cutter determined instead of prosecuting the " Henrietta " under the terms of the,
modus vivendi or for a breach thereof to proceed against her
for a fancied infraction of the revenue laws, of which as a
matter of fact she was not guilty, and accordingly, on the 6th
September, 1*92, Captain Hooper served upon the master of
the " Henrietta" a notice as follows :—
" gir,—In the discharge of duty I have to inform you that
the schooner under your command is this day seized tor viola- 50
tion of the United States Customs laws.    She will be  taken THE HENRIETTA. 161
in tow by this vessel and carried to Sitka, Alaska, to be brought
to trial before the District Court at that place."
Commander Evan3 on September 7th, 1892, wrote a letter R. 1651.
of instructions to Mr. Johnson, United States District Attorney,
at Sitka, stating that Captain Hooper would deliver to the Collector of Customs at Sitka to be by him given into his jurisdiction, the British schooner " Henrietta," seized for violation of
the Revenue laws of the United States; that he would also
deliver to the Collector of Customs the affidavit of six of the
10 crew ofthe " Henrietta" taken by him, also to be turned over
to him. "If the case of the 'Henrietta' for violation ofthe
Revenue laws should be dismissed, she may then be turned
over to the British authorities at Victoria to be prosecuted for
violation of the modus vivendi."
And on the 10th September, 1892, Captain Hooper reported
the seizure as follows:
" Upon examination, the ' Henrietta' proved to be about R. 1652.
31 tons, and to have on board 420 fur seal skins taken in
Behring Sea.    On or about the 20th June, 1892, she had at
20 Tonki Bay, Island of Afognak, transferred about 150 fur seal
skins, her coast catch, to the British schooner ' Kate' of
Victoria, British Columbia, receiving from her at the same
time and place coal, flour, biscuit and other stuff. Upon
ascertaining all the facts in the case, I (Capt. Evans) directed
Captain Hooper, of the cutter ' Corwin' to seize the
'Henrietta' for violation of sections 2867 and 2868, Revised
Statutes of the United States, and to proceed with her to Sitka,
and there to deliver her, etc., to the Collector of Customs.
#    #    #    -&    #   I5 at the same time made a declaration of
30 seizure against her for violation of the modus vivendi and sent
the same to the District Attorney with a request that in case
of failure to condemn her on the charge of receiving and
transferring cargo in violation of the Revenue laws, she be
turned over to the British authorities at Victoria for trial
under the modus vivendi."
It may here be noted that there was no ground whatever
for seizing the vessel for a breach of the Revenue laws. The
facts alleged in the seizing officer's report were utterly insufficient to lay a foundation for such a seizure. The acts said to
40 have been committed by the ' Henrietta' constituted no
breach of such laws, and even if they did, clearly did not
authorize a seizure of a British registered vessel on the high
seas.
On the 22nd September, 1892, the United States Attorney
for the District of Alaska libelled the "Henrietta" in the
United States District Court in and for the District of Alaska.
The charge was that on the 20th June, 1892, within the limits
of the Alaska collection district in Tonki Bay, certain goods
were unladen from the schooner " Kate " and received on board
50 the schooner " Henrietta," and that on the same date she had
entered Tonki Bay, and had failed to report at the office of
any Collector of Customs, and that the " Henrietta " had transferred certain seal skins on board the schooner " Kate."
bs—21 162
THE HENRIETTA.
R. 1668,
line 59.
R. 1652,
line 49.
R. 1653,
line 10.
Process was issued on this information and the vessel arrested
thereunder.
The master retained counsel, Messrs. Hughes & Hastings, of
Seattle, to defend the case, and a very considerable expense
was incurred in the defence ; a number of witnesses were
examined, and on the 9th October, 1893, it having become
apparent that the proceedings against the vessel could not be
sustained, the United States Attorney moved to dismiss the
libel and to discharge the vessel, her boats, tackle, apparel and
furniture. -£Q
Diplomatic correspondence took place between the Governments of Great Britain and of the United States from which it
appears that the latter Government admitted that the proceedings against the vessel had been improperly taken and compensation should be made.
On the 10th February, 1893, Mr. Foster wrote to Sir Julian
Pauncefote stating that charges were made against the
" Henrietta" for violation of sections 2867 and 2868 ofthe
Revised Statutes of the United States, relating to Revenue
laws, and the schooner was thereupon delivered to Captain 20
Hooper of the " Corwin " with instructions to take her to
Sitka for trial upon the latter charge, and in case of failure to
condemn her upon the charge of violating the Revenue laws,
she was to be turned over to the British authorities at Victoria
for trial for violation of the modus vivendi, and stating that so
far as he knew the trial had not then taken place.
On the 15th February, 1893, Sir Julian Pauncefote wrote to
Mr. Foster stating :—
" You expressed no opinion on the statements of facts contained in your letter, but I should be much surprised if 30
you did not share my views of the extraordinary proceedings
which it discloses, as in my opinion no doubt canbe entertained for a moment of the illegality of the detention of
the 'Henrietta' at Sitka. I venture without further instructions from my Government to submit the following obser-
vations to your attention. The seizure of the ' Henrietta'
in Behring Sea, 70 miles from land, was only warranted on
the condition that the vessel should be delivered to some
British authority as provided in the modus vivendi, but the
vessel having been seized under that power, was then forcibly 40
drawn within the jurisdiction of the United States for the
purpose of enabling a totally distinct charge to be preferred
against her."
He then points out that there was no foundation for the
charge of breach of the revenue laws nor justification for
seizure on that head, and says—" In view of the above consideration and of the indisputable fact that the seizure of the
' Henrietta' was only warranted by the modus vivendi, and
for the purpose of handing her over, as therein provided to
the British authorities, I trust that you will move the Presi- 50
dent to order that the vessel be dealt with in accordance with
that international agreement."
In reply, Mr. Foster wrote Sir Julian Pauncefote, on the
21st February, stating that he had communicated a copy of his
I THE HENRIETTA.
163
letter to the Attorney General with the recommendation that
the vessel be handed over to the proper British authorities
for trial u