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In the matter of the claims of Great Britain against the United States of America before the Bering Sea… Bering Sea Tribunal of Arbitration 1897

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Array       FUR-SEAL ARBITRATION.
IN THE MATTER OF THE CLAIMS OF GREAT BRITAIN AGAINST
THE UNITED STATES OF AMERICA BEFORE THE
BERING SEA CLAIMS COMMISSION.
ARGUMENT FOR THE UNITED
STATES IN REPLY.
WASHINGTON:
GOVERNMENT   PRINTING   OFFICE.
1897.  COl^TEr^TS.
Introductory statement	
As to reflections upon the United States	
Representative statements in the Argument of Great Britain, and comments thereon	
Alleged " Insnlts to flag," and comments	
Comparative unimportance of the claims	
Summary of positions in reply	
The international law applicable here	
The questions ruled by authoritative and positive law, as
settled by treaties, judgments of international tribunals
and of courts	
As applied to the claims	
Scope and interpretation of the convention	
Jurisdiction under ,  22,
Construction in general    	
Prior diplomatic correspondence can not enlarge  23,
No ambiguity; plain reference of specific matters to the
Commission	
Precedents and authorities	
No other claims referred than those specified	
Analysis of convention	
Claims of specified "persons" referred	
Persons in whose behalf Great Britain can not intervene UNDER THE  CONVENTJON	
British subject domiciled in the United States a civil citizen
of latter nation  -	
Term ''British subjects" intentionally omitted	
Evidence of domicile	
Owes obedience to laws of the United States	
And allegience to their sovereign claims	
Page.
1-12
1
8
11
12-19
19-39
19
20
22-39
24,33
23
24,32
66
36,37
40-66
40
41
43
44
45 rtantftflaftfe-
ii contents.
Persons in whose behalf Great Britain can not intervene UNDER THE CONVENTION—Continued. Page.
Great Britain can not make reclamation against the United
States for  46
Limit of Great Britain's light to intervene for protection.. 49
The Treaty of 1815 covers case of  51
Original citizens of United States  even if domiciled, if not
naturalized, in Great Britain, not persons for lohom that
nation can make reclamation j  53-66]
Authorities in British Argument analyzed  54
Such citizens still owe allegiance to sovereign claims and.
extraterritorial laws of United States  59]
Nation of domicile can not make reclamation against country
of original allegiance for injuries suffered in violating such
allegiance and laws  631
The claims here not claims of nation  66,84
Vessels—Registry and flag not material here  68-70J
Vessels—Nationality follows ownership, not ownership nationality .  71-81
Registry by British and American authorities not conclusive against anyone except person securing it  73
It is a municipal regulation only  74
Authorities in British argument analyzed  79
Registry, not effective like a usea letter" or "ship's pass".. 81
The specific claims eliminated because of citizenship,
civil or political  86-93
Compensation or "Measure of Damages"  93-148]
Prospective Catch, loss of Catch, etc  93
Prospective Catch—The Judgment of Geneva  94
Error in opposing argument corrected      94
Prospective Catch—British and American authorities  101
Prospective    Catch—Judgments   of   other   International
Tribunals  105
Prospective Catch—Other judgments of the courts  109
Prospective Catch—Authorities in opposing argument analyzed   110
Compensation— Warnings  116]
No prospective catch  116
Proper measure  1241 CONTENTS. Ill
Compensation or "Measure of Damages"—Continued. Page.
Punitory or vindictive damages  126
Alabama Claims case not in point  126
The charge of wantonness  129
Review of the authorities  J 31
Preposterous claims  133
Experience under other conventions  133
Comparison with precedents  137
Personal claims for damages for false imprisonment, etc  138
Claims for legal services  141
The measure of value of seal shins  141
Interest as damages  143
Interest in lieu of future earnings and the future earnings
also—legal absurdity.  14,')
The law as to interest—authorities  144
The Costs in Sayward Case  148
The Additional Claims "  153
The " Oscar and Hattie" Case 155,477
Observations applying only to law on certain claims 156
The " Pathfinder " in Neah Bay  156
The "Black Diamond" No. 5  158
James Gaudin's "personal" claim  158
The Carolena, Onward, and Thornton as to abandonment by
claimants*  158
Uncertain character of seal hunting  177
no defined " sealing grounds" in bering sea  209
Duration of the sealing season in Bering Sea  228
"Method   for   computing  the   estimated   catch"  discussed   247
The value of seal skins  258
Evidence relating to value of vessels  265
The Carolena  303
The Thornton  305
The Onward  308
The Anna Bed.  310
•   The Grace aud the Dolphin  314
;   The Ada  315 CONTENTS.
Page. I
sonal claims of captains and mates  319 1
carolena  337 1
Thornton  3571
Onward  3641
Favourite  369 1
Black Diamond (1886)  375 1
W. P. Sayward  382 j
Anna Beck  3881
Alfred Adams  3921
Grace and the Dolphin     3951
Ada ,  402 j
i Triumph (1887)  4081
1 JUANITA  414i
Pathfinder (1889)  4181
Black Diamond (1889) and the Lily  423 1
Minnie  437 ]
i Triumph (1889)  442 I
Ariel  447 1
Kate  457 j
Pathfinder (1890)  462 1
Henrietta  466 ]
Oscar and Hattte  477 j
i Winifred  484 j
Wanderer  490 j ARGUMENT FOR THE UNITED STATES IN
REPLY.
INTRODUCTORY  STATEMENT.
Iii submitting their views to the High Commission,
in reply to the argument presented in behalf of Great
Britain, the undersigned will, for the purposes of
orderly and convenient comparison, pursue as nearly
as may be the nomenclature and sequence of subjects
as found in the British argument.
The counsel of the United States conceive that
when their country comes to this place of justice, set
up in a common spirit of good will and friendship
by these two great nations of equal dignity and equal
self-respect, it should find that spirit abiding and manifest not only at the altar but in all the ministers of
the temple.
They assert before the Tribunal at the outset, that
no juridical purpose can be served, either by way of
interpretation of its organic law and rule of action—
the Convention of 1896—or of its enlightment on the
questions of liability or compensation presented at its
bar, by imputations upon the good faith of the United
States, insinuations against the truthfulness of their
ministers, and charges of wantonness and evil motive
against the Government. These pervade the argument
of Great Britain from its introduction until the close of
b s 1 INTRODUCTORY   STATEMENT.
its general discussion.   They are statements of promi- j
nent and impressive irrelevance.    They are at war
with the spirit of arbitration, and the tendency of their 1
influence is against the general acceptance of that policy for the peaceful settlement of international dis- :
putes, through courts of conciliation, which is said by^
good men of all nations to be the universal desire of
advanced humanity and the highest civilization.
There has been, doubtless, some progress toward ;
the accomplishment of that wish, so vigorously pro- I
fessed by some, and so sincerely felt by others.
However that may be, the annals of forensic and
even of judicial discussion in courts of international I
arbitration within the past three and a half decades
have certainly not furnished impulse to the movement. To all who have faith in, and who invoke its
successful issue, such annals seem to teach the lesson
that in our debates in these temples of peace the
advocates of both nations might with jirofit more \
often have recourse-to the gentler lexicons of war.
The tradition of Fontenoy furnishes a better guide
for the . exchange of views between nations met together in courts of conciliation and judgment than
some of their recorded precedents.*
We shall submit later on, when we take up the subject of the interpretation of the treaty and convention,
that the correspondence between the Governments,
fragments of which are referred to and commented on
in the British argument under the caption " Introductory," is entirely irrelevant here.
It was all conducted, and relates to a period prior
to the treaty of Washington of February 29, 1892,
under which the Paris Tribunal afterwards sat and \
made its award, and, of course, many years prior to
the treaty or convention under which this Commis- j
sion sits.
*See   Geneva Arb., vol. 2, p. 203; Id., vol. 3, p. 48x; vol. 4, p. 12, sec. 7. !
Papers, Treaty of Washington. INTRODUCTORY   STATEMENT.
Whatever of controversy or of differences may
have been discussed in the diplomatic correspondence
between the nations, they were disposed of by the
treaty, the award, and the convention. For this and
other reasons, which will be referred to in another
place, the United States objected to its introduction
at the hearing on the Pacific Coast, and declined there
to encumber the record by putting in answering evidence to complete the diplomatic history here which
was so fully set out in the long record of the proceedings of the Paris Tribunal.
The conclusions drawn from the correspondence,
as stated for the information of the commissioners in
the British argument, in so far as they reflect upon
the positions or the conduct of the United States, are
erroneous, and in many respects have nothing whatever to support them in the complete evidence of
both Governments furnished by them as the diplomatic history of the subject-matter in the Paris
record.
Inasmuch, however, as these statements in the
argument of Great Britain will pass into the history
of international affairs, it is proposed to take some
leading ones from that argument as representative of
many and comment upon them briefly, in order that
the whole body of them may go into the proceedings,
challenged by the United States.
In the British argument, at page 6, folio 50, this
statement is made:
(1) This correspondence shows that although the seizures
occurred on the 1st and 2d August, 1886, and information
respecting 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 by the British Government on the 27th
of September, no intimation as to the cause of seizure or any
particulars relating thereto could be obtaiued from the
United States Government until the 12th of April, 1887, and
not before the 11th of July, 1887, did that Government communicate the precise nature of the proceedings. INTRODUCTORY   STATEMENT.
It is to be observed, in connection with the statement italicized, that the implication is that Mr. Bayard,
the American Secretary of State, while having the
information from August 18,1886, wrote to the British
ambassador on November 12, 1886, that he had not
received it, and that he withheld the information,
already weeks and months in his possession, after he
had received the notes of inquiry from the British
ambassador of September 27, 1886, and October 21,
1886, asking for it.
It is submitted that the statement quoted from the
argument of Great Britain has nothing1 whatever to
rest upon in any place in the record or out of it.
Moreover, it appears from the testimony of witnesses
on this record that the mail facilities between Alaska
and the railway mail connections on the Pacific Coast
with Washington were not only very irregular, but
that the time was from ten days to two weeks at this
period; to that must be added the time across the continent by rail from the Pacific.
Secretary Bayard states that he delivered the information desired as soon as he could give accurate and
authentic information.
This was furnished with far more expedition than
is usual, as shown by the diplomatic history of nations.
In all the history of Great Britain's foreign relations
there is not a case where there was as much expedition in like circumstances.
In the Fortune Bay cases, referred to in the British
brief, Mr. Evarts submitted to Great Britain the claims
of the United States, for attacks upon and damages to
twenty-two vessels under the American flag, on August
1, 1879. He received a reply from Great Britain on
April 3, 1880. (Foreign Relations, Great Britain,
1880, vol. 72, p. 1277 et seq.)
In the case of the ship Jones (an ocean ship with
her cargo, worth more than all the property of British INTRODUCTORY  STATEMENT.
subjects involved in this case together), wherein the
British umpire afterwards found, under the Mixed
Commission of 1853, that a British cruiser had seized
a ship sailing under the American flag, without any
probable cause and without a shadow of excuse, our
then Secretary of State, Edward Everett, in 1843,
addressed a letter of complaint to the British Government, setting forth the facts and inviting the immediate attention of that Government to the case. There
was no reply received for three and a half years, and
no excuse was offered for the delay. (Id., vol. 35,
1846-47, p. 655 et seq.)
Nations do not take positions upon facts which
may affect their rights and obligations without deliberation and proper investigation. The presumption
here should be that Secretary Bayard acted in accordance with the usages of nations and the conditions as
they existed. (It was conceded that he so acted in
this matter by Sir Charles Russell, now Lord Chief
Justice of England, in his argument before the Paris
Tribunal.)
The ambassador of Great Britain was resident at
Washington, and outside of all formal communications
or notes verbales, was in informal communication with
Mr. Bayard.
Of such interviews there is, of course, no evidence;
but there is no intimation anywhere on the part of
the ambassador, or of the British Government, that
Mr. Bayard had withheld information, or had not
furnished it with such expedition as was in accordance with usage and the circumstances.
On page 20, folio 20, we find this statement:
(2) 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. INTRODUCTORY   STATEMENT.
And at page 10, folios 10-20, we find this statement as a premise to th§ above:
This correspondence (diplomatic) discloses the following
positions assumed at various times by the authorities of the
United States (U. S., vol. 2, pp. 263, 386, 396):
(a) The vessels seized in 1886 and 1887 were seized and
condemned on the ground that Bering Sea was amare clausum.
(b) Disavowing this ground, the claim was made on September 17,1890, that the United States had exclusive jurisdiction over 100 miles from the coast line of the United
States territory in Bering Sea.
{c) Subsequently on the 14th April, 1891, the United States
Government advanced a new claim that they had property
in, and a right of protection over, fur seals.
The citations given do not, of course, sustain this
imputation.
An intimation to the same effect, though in far less
objectionable form, was made before the Paris Tribunal ; and we content ourselves by referring' to the
treatment of that intimation by the eminent counsel
who there represented the United States, at page 29
et seq. of volume 9 of the American print of the proceedings of that Tribunal.
On the latter part of the first paragraph of (2) above
quoted we make this comment:
Notwithstanding the statement impliedly to the
contrary there made, and expressly made at page 14,
folio 10 ( " Particulars of claims had been formulated
and presented to the United States Government "j, and 1
at page 15, folio 30 ("The claims actually submitted 1
by Great Britain referred to in the notes verbales"), j
Great Britain, in distinct departure from her own
precedents and from the rules of international law in j
such cases, where one nation seeks indemnity from j
another for injury to persons or property, never caused
the claims to be audited or formulated in any manner j
for presentation to the United States, and never presented them.
On the contrary on April 18,1888, as appears by the INTRODUCTORY  STATEMENT.
record, Her Majesty's ambassador formally communicated to Mr. Bayard the following (*Rec, p. 69):
Her Majesty's Government have just received the particulars of the claims for compensation on account of British
sealers seized and warned off by the United States authorities in Bering Sea.
A just assessment of these claims appears to them difficult
without investigation a,nd verification; and they therefore
wish to ascertain whether the United States Government
would be disposed to agree to a mixed commission, etc.
The claims were not presented in any form until
the Paris Tribunal came together in 1893; and in
the meantime negotiations were pending between the
Governments wherein the position of the United
States, claiming jurisdiction to make the seizures in
question, and denying their liability for making
them, was not challenged by Great Britain as the
attitude of a "wanton" trespasser, or as "an insult
to the flag of Great Britain."
On the contrary, without following the practice in
respect of such alleged injuries, which had always
obtained where right was asserted by one and wrong
against it by the claiming nation, of auditing and
presenting the claims, the question of right and
wrong was considered so doubtful that Great Britain
conceded that compensation to British subjects should
remain in abeyance pending the settlement by international arbitration of the question of the jurisdiction of the United States to protect the seals in
Bering Sea.
The great question was the question of that jurisdiction; and so, in Article V i 11 of the treaty of 1892,
creating the Paris Tribunal, the question of the liability of the United States to make compensation for
the seizures was treated in terms as "subordinate,"
which both countries were solicitous "should not interrupt or longer delay the submission and determination of the main questions." INTRODUCTORY  STATEMENT.
It is submitted, therefore, that there is no warrant
for the charge that the United States have failed in
any dutv up to this time; or that their honor or good
faith can be impugned from any standpoint, when
they have so far "failed to make any reparation to
Great Britain" on account "of injuries sustained by
persons in whose behalf Great Britain is entitled to
claim compensation."
Up to this time neither Great Britain nor anyone
has been able to ascertain what these claims are, or
whether they arise from injuries sustained by such
"persons." Unliquidated and unascertained as they
have been, the present convention itself recognizes
that no liability accrued until the decision of the
Paris Tribunal, for such claims are distinctly defined
in Article I, as those "arising by virtue of the treaty
aforesaid, the award, and the findings of the said
Tribunal of Arbitration" (at Paris).
At page 20 of the British argument, folio 5, is the
following:
(3) They (the acts of the United States in seizing vessels in
Bering Sea) 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.
In other places in the opposing argument compensation is claimed from the United States under the
convention and before this Commission for Great
Britain "in her own behalf," distinguishing this as a
national claim in a different sense from those made
by her in behalf of "persons" within her protection.
(Fol. 10, p. 18; fol. 50, p. 13.)
The counsel of the United States have but two
observations to make on the above-quoted paragraph
in connection with the context: INTRODUCTORY   STATEMENT.
(a) In all the history of that great nation the flag
of Great Britain, respected throughout the world for
the power behind it, and more respected by strong
nations of all civilizations for what it represents
besides the force of arms, has never been insulted
with impunity; and never before in her history has
it been suggested by her, much less to her, that the
amends for such an insult could be arbitrated or
referred, or that a money compensation for the act,
assessed by referees of whatever dignity, would be
received as satisfaction.
The irrelevancy of the statement in its bearing on
the question of damages will be considered later on.
(b) The charge that the United States had been
guilty of a breach of faith that is here made was
never intimated in the diplomatic correspondence
between the Governments. Promptly on learning
that a misunderstanding was claimed on the part of
Her Majesty's representative on the subject of seizures, Mr. Bayard, on August 13, 1887, corrected
the misunderstanding, if there was one, and made
this statement in that letter, which is fully justified
by an examination of the correspondence (Rec, 81):
I can discover no ground whatever for the assumption by
Her Majesty's Government that it (his letter of February 3,
1887) contained assurances (quoting from the letter of the
British ambassador) "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.7'
On page 1, folio 5, appears this statement:
(4) Until the year 1886 the United States Government by
no positive act sought to exercise any exclusive jurisdiction
over the waters of Bering 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 seals in Bering Sea outside of such limit. 10 INTRODUCTORY STATEMENT.
The reference to the record opposite this paragraph
does not sustain it. The reference is to the statement
of the British case before the Paris Tribunal, and is
entitled, "Outline of Argument,"
It appears by this record, on the evidence put in
by Her Majesty's Government, that the first ship to
engage in pelagic sealing was an American vess«
that went into the sea in 1884. It was not claimeB
before the Paris Tribunal that any British ship wm
in the sea before that year.
It is not pretended by Great Britain that there waB
any assertion by that nation or her subjects of thm
right to take seals in Bering Sea, as contested bj
the United States, before 188r>; and it appears thaB
the assertion of the right by Great Britain, or by herl
subjects, was not brought to the attention of the Uniteq
States Government or its officers until after the closB
of the season of 1885.
Sir Charles Russell, in his argument at Paris, quote!
the statement of Secretary Blaine as follows, fronl
his dispatch on the subject of British sealing, date«
January 22, 1890, where he says:
Whence did the ships of Canada derive the right to do in
1886 that which they had refrained from doing for more than]
ninety years ?
In all fairness to both nations, after all issues of facj
have been investigated and resolved by the Paris!
Tribunal, it should be stated that from the date ofl
acquirement of Alaska in 1867 until, by reason of wha8
took place, in the year 1885 the question of peiagicl
sealing or the jurisdiction of the United States in thej
premises was not asserted against Great Britain, for thej
simple reason that the latter Government or. its subj
jects had not challenged that jurisdiction or interferes
with the exclusive control by the United States of seal
fishing, as claimed in Bering Sea, at Paris. The jurisl
diction was asserted as soon as substantially infring-ecj INTRODUCTORY  STATEMENT.
Owing to the gravity and magnitude of what is
called in the treaty the " Main Controversy" between
the United States and Great Britain, the international question of jurisdiction, the claims involved
for losses to British subjects have been given an
importance out of all proportion to their significance.
Lifted into view by the supreme feature of the controversy, a few small fishing boats have been the
subject of prolonged negotiation between two great
nations, resulting in the organization of a High Court,
composed of jurists of distinguished position and
learning, to make an assessment of values and pass
upon questions, involving, in the case itself, only
these as subjects.
With the great question taken from under them,
disposed of at Paris, and out of view, it will seem to
whomsoever this record comes, and who masters it,
that the few claims and their subjects, which can be
considered here at all, have been given a most incongruous dignity; and, too, from the outside standpoint,
it has seemed that great fleets have been driven from
the sea by the United States from year to year. This
is true, but they have not been the fleets of Great
Britain. They have been the vessels of citizens of
the United States, in the proportion of loss to that
of the subjects of Great Britain as a thousand to one.
Confusing tins distinction, the public mind has
assumed that all the results of the action of the United
States in Bering Sea (action substantially in respect
of its own shipping and its own citizens) fell upon
British subjects. This also has given a factitious
dignity to these claims. When from the claims
presented here there are thrown out those urged
unlawfully because of their actual ownership by
American citizens, who can not be represented by
Great Britain under this convention, the residuum of
actual British losses will be found small indeed.
11 12 SUMMARY   OF   LEADING  POSITIONS   IN   REPLY.
It is obvious, however, that the smallness of the
amount involved in nowise detracts from the impoa
tance of the international questions.
A sense of their professional duty to the Commisi
-sioners, who have consented to add to the exactinj
responsibilities of the high places they hold in thl
judiciary of their respective countries, that of mastexj
ing and disposing of the international controversj
embraced in this enormous record and its adjuncts
has impelled the counsel for the United States ti
endeavor to aid them with all that conscientiou|
research and analysis on the law and the facts cal
afford.
If, in the result of this purpose, it should seeid
that any excuse is needed for the space taken in gathj
ering and presenting the evidence under the several
heads, with intelligible and orderly references, thai
excuse may be at once found by comparing with thl
record, in any one instance, the statements under anj
caption whatever, in the British argument, treating oj
the facts.
SUMMARY OF THE POSITIONS OP THE UNITED STATES
IN REPLY.
At this place we submit brief synopses or head!
notes of the leading positions taken in the argumenl
of the United States, hereafter presented at length, iq
reply to the juridical positions of Great Britain oil
like subjects.
I.
International law furnishes the standard for thl
interpretation of treaties and conventions and is th(J
law of this Commission. SUMMARY   OF  LEADING  POSITIONS   IN  REPLY.
The scope of the convention in this case is defined
and limited by the language of the convention itself
and the documents, which, by its terms, are made a
part of it by express reference and identification in
its body. The international law of interpretation
applicable here neither requires nor permits any reference to extraneous matter.
The claims referred to this Commission are thus
unchangeably pointed out and definitely described in
the convention, except only as to the amount of each
claim. The names of the "persons" for whom, under
Article I, Great Britain can claim compensation before
this Commission are as unchangeably pointed out by
the convention, except only as to them, so named as
claimants by the convention, the United States are
permitted, and that nation alone is permitted, by a
specific provision, to inquire into their identity, in
defense, as the actual owners of the vessels seized.
13
II.
As to compensation, the United States hold to the
same attitude now that was announced by their counsel before the Paris Tribunal and has been consistently
maintained before this High Commission, namely, that
their liability having been fixed, the Government desires to pay compensation to Great Britain on account
of all persons "in whose behalf Great Britain is entitled to claim compensation from the United States,"
and to pay that compensation at the earliest time when
the proper amount can be ascertained.
Moreover, the United States want no compromise
on the amount of compensation on values, and the
amount of the injury inflicted by them for which they
are responsible under the Paris award. They deprecate any such method of arriving at an award, especially under this convention, where the claim of each
owner is to be found separately. 14 SUMMARY   OF   LEADING   POSITIONS   IN   REPLY.
It can not but occur to anyone, however, when thl
amounts are compared for the same claims made uBj
for the Paris Tribunal with those presented at the heaiB
ing in Victoria, and again when both are compareB
with the claims now presented in the argument, thaB
the claimants do not share these views as to comprcB
mise.
The change of front at Victoria on the measure of
recovery, the evidence of the padding, duplicating
and doubling of claims, the experience of other conB
missions and tribunals with like claimants, which aiB
hereafter referred to, tend to demonstrate that thB
amounts are presented at such preposterous figureB
in order—if they are taken as a basis of calculation
at all—that their reduction of half or more would stiB
give a result out of all proportion to the truth.
III.
A foreigner permanently domiciled in the UniteB
States like the claimant Cooper, although unnaturaB
ized, owes during the duration of his domicile allegil
ance to their Government, obedience to their municil
pal laws, and especially to their national assertion ol
what is variously termed dominion, sovereignty, oil
jurisdiction.
Non constat such a person may owe original allegil
ance to Great Britain, and non constat he puts hffl
ships under a British flag and a British registry, he is]
still a resident of the United States, and so amenabll
to their laws and absolutely bound by their assertion
of sovereignty.
Whatever questions there may be as to violation!
of national dignity, of the flag, and the ship (whollB
questions of dignity between nations), in such casB
he is not a person who can enter any municipal courB
much less an international commission on claims, anB SUMMARY   OF   LEADING   POSITIONS   IN   REPLY.
set up that he is a person "in whose behalf Great
Britain is entitled to claim compensation from the
United States" for injuries which he has suffered in
common with other civil citizens of the United States,
no more amenable to their laws, for doing the same
acts against the policy of the sovereignty and the
laws of their common Government, for which they
have suffered.
Aside from questions having to do with the inviolability of the flag and of the deck, where, on the
high seas, sovereignty is said to be present as upon its
territory on land, there is no doubt by the authorities
that this assertion in its extremest form is one entirely
of national dignity, in respect of the sovereignty itself,
as distinctly distinguished from the claim on account
of the private ownership of a ship made by the
same nation, in respect of a subject or citizen. In no
court before has it been claimed that the immunity
of the flag and of the deck from molestation by
other nations on the high seas carried with it in
courts of admiralty anywhere, or in any international
court ever held, any exclusive presumption of private ownership.
On the contrary, in the courts of England as to
foreign ships, and in the courts of every civilized
nation, passing the question of national dignity, it is
conclusively held that nationality follows ownership.
15
IV.
A citizen of the United States, wherever resident
or domiciled, until he becomes naturalized in Great
Britain, is still bound to his original allegiance to the
United States in respect of—
{a) Their assertion of jurisdiction and sovereignty
over territory or property.
(b) All municipal laws having an exterritorial effect 16
SUMMARY  OF   LEADING  POSITIONS  IN   REPLY.
The right of the nation to protect a domiciled peiB
son, even in time of war, much less in time of peace,!
has never been asserted in favor of such person asl
against his nation of citizenship for the consequences!
of his violation of the law of his country in time of!
peace, or his positive violation of his allegiance in!
time of war.
The maintenance of the rights of domicile in the his
tory of international law, as will be seen, shows—
(1) Frequent assertions of protection in time of!
peace against all other nations except the nation ojw
original allegiance; and in the applicable principles 1
laid down by the authorities this exception wilS
always be found in terms.
(2) In war a person domiciled in a neutral coun.trjB
will be protected in his property and his person, even!
as against his own belligerant country, always pro-1
vided he has not violated the law of his original alle-1
fiance and has not engaged in any hostile act against!
his country. In other words, to be protected by the!
Government of the neutral in such conditions, it must!
appear that he has maintained the status of the Gov-1
ernment of his domicile as to neutralitv.
By these well-settled doctrines of international law,l
by the treaty of Washington, the Paris award, and!
this convention, citizens of the United States, wherever!
domiciled or commorant, are not persons "in whose!
behalf Great Britain is entitled to claim compensation!
from the United States."
The law of "compensation" in cases of this kind is!
restitutio in integrum-.
By the English and American law, and above all, I
by what must be taken in this tribunal as its authority I
in international law, in cases of precise analogy to! SUMMARY   OF   LEADING   POSITIONS   IN   REPLY.
this, prospective profits and loss of catch can not be
allowed to Great Britain by this Commission:
In any case (a) where the United States appropriated the vessel by seizure, or by ultimate proceedings relating back to the seizure; or (b) in any case
of seizure where the United States ordered a release,
if the release was not accepted, or if the facts disclosed
an intention on the part of the claimants to abandon
the property to the United States before the following season.
The theory and presumption must be applied in all
such cases that the claimants had the means and could
have supplied the place of the property seized at the
time of seizure. In other words, the value of the
property seized at the time of seizure is the only
measure of compensation.
In the case of Warnings made by the United States
Government, and actual departure from the sea because of them, a liberal allowance must be made in
the nature of the charter value for the balance of the
sealing season in Bering Sea only. The rules applying here are in principle like those of demurrage, or
like those applying in cases of partial loss. Practically, however, there are but two cases where the
facts sustain any considerable claim as resulting from
Warnings.
VI.
Claims for national injuries, distinguished from
national claims made in behalf of subjects or citizens,
viz, such as may arise from acts in derogation of the
inviolability of the flag, the dignity of the sovereign,
the respect due to the jurisdiction of the sovereign,
and the like, committed on the high seas, or on that
sovereign's territory, are not before this Commission.
Under international law and by international precedent no nation has yet claimed to recover damages
b s 2
17 18 SUMMARY   OF   LEADING  POSITIONS   IN   REPLY.
for such acts, for distribution among claimants, nor has
any nation ever referred such questions to arbitration
ot commissioners for a damages assessment. MoreJ
over, claims for "smart money" or for satisfactions
of national affronts, if any occurred, are not claimsi
of "persons" within Article I of this convention, "in!
whose behalf Great Britain is entitled to claim comB
pensation from the United States."
VII.
There is no warrant in international law for the alB
lowance of punitory or vindictive damages as between
nation and nation. There is no authoritative judgmenB
in the courts of either country which would authorize!
a finding that the United States on the facts in this!
record have been guilty of " wanton injury," bad!
motive, or malice, and the authorities cited in thej
British argument under these heads are not in point.
VIII.
The claims that are presented, which can be heard!
within the terms of the convention, for the most part,!
have been so grossly exaggerated that they are preposterous and extortionate, and wherever such claims!
have been made willfully or corruptly extravagant the!
claimants are entitled to the lowest estimate of com-|
pensation found within the covers of the record.
IX.
By the rules of the common law of the two countries
and of international law, interest, as claimed, can not f
be allowed in the class of cases presented to thisj
Tribunal. THE   INTERNATIONAL   LAW   APPLICABLE.
19
X.
The costs in the Say ward Case can not be allowed,
because (a) they were confessedly disbursements by
Great Britain incurred by that Government in, the
adjustment of an international difficulty; (&) they are
expressly excluded from the Convention in terms by
its reference to the claims referred as those only
embraced and named in the award of the Paris Tribunal, which award excludes this claim,.as do the Proceedings of the Paris Tribunal; (c) the interpolation of
the term "costs in! the Say ward Case" in the schedule
attached to the convention can not control, modify,
or enlarge the express provisions of the convention,
which exclude it; and (ct) it is not a claim embraced
within Article I, namely, "all claims on account of
injuries sustained by persons in whose behalf Great
Britain is entitled to claim compensation," or one of
the "additional claims specified in the fifth paragraph
of the preamble hereto."
INTERNATIONAL LAW APPLICABLE.
SCOPE   AND   INTERPRETATION   OF   THE   CONVENTION.
In this controversy all questions must be considered, weighed, and decided by international law.
In pursuing' their argument under this convention
the United States do not find it necessary, in the ascertainment of what principles of that law are applicable
here, to resort to any sources of authority except
treaties and judgments of international courts, which
are universally held to be of the most binding force,
and judgments and opinions of eminent jurists and
publicists admitted to be authoritative by Great
Britain. 20
THE  INTERNATIONAL  LAW APPLICABLE.
For other sources of light, from the copious learn-'
ing of the world, reference is made, without any futurej
recurrence to them, to the collection of authorities!
found in the exhaustive argument of Mr. Carter before!
the Paris Tribunal, American print, vol. 9, pp. 1-1 Oj
et seq.
Whatever international law may be in its broadest
definition, we have it for application here in positive!
form. Whatever it may be in its application to the!
controversy between these two nations, it is not,!
as Burke said of politics, "The science of circum-1
stances."
The United States do not expect here a different]
application of the rules of international law from those!
which have been applied to their disadvantage in then!
past history, nor will they seek a reversal of those!
rules which they have heretofore successfully invoked!
to their advantage, although their application to the!
present controversy would be unfavorable to them.
THE LAW APPLYING TO THE CLAIMS.
In defining what is meant by i