CONTENTdm
Behring Sea Claims Commission. Argument for the United States in reply
British Columbia Historical Books Collection
Behring Sea Claims Commission
United States
iv, 496 pages : tables ; 33 cm
application/pdf
BEHRING SEA CLAIMS COMMISSION ARGUMENT FOR THE THE UNITED STATES IN REPLY HON. SIR CHARLES HIBBERT TUPPER, K. C. M. G., Q. C. BERING SEA CLAIMS COMMISSION. ARGUMENT FOR THE UNITED STATES IN REPLY. WASHINGTON: GOVERNMENT PRINTING OFFICE. 1897. CONTENTS. Page. Introductory statement 1-12 As to reflections upon the United States 1 Representative statements in the Argument of Great Britain, and comments thereon 5 Alleged " Insults to flag," and comments 8 Comparative unimportance of the claims 11 Summary of positions in reply 12-19 The international law applicable here 19-39 The questions ruled by authoritative and positive law, as settled by treaties, judgments of international tribunals and of courts 19 As applied to the claims 20 Scope and interpretation of the convention 22-39 Jurisdiction under 22,24,33 Construction in general 23 Prior diplomatic correspondence can not enlarge 23,24,32 No ambiguity; plain reference of specific matters to the Commission 25 Precedents and authorities 27 No other claims referred than those specified 32 Analysis of convention 33 Claims of specified "persons" referred 36,37 Persons in whose behalf Great Britain can not intervene UNDER THE CONVENTION 40-66 British subject domiciled in the United States a civil citizen of latter nation 40 Term "British subjects" intentionally omitted 41 Evidence of domicile 43 Owes obedience to laws of the United States 44 And allegience to their sovereign claims 45 ii contents. Persons in whos'e behalf Great Britain can not inteb.- VENE UNDER THE CONVENTION—Continued. Page. Great Britain can not make reclamation against the United States for 46 Limit of Great Britain's right 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 whom that nation can make reclamation 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 63 The claims here not claims of nation 66,84 Vessels—Registry and flag not material here 68-70 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 bike a "sea 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 124 CONTENTS. Ill Compensation or "Measure of Damages"—Continued. page. Punitory or vindictive damages 126 Alabama Claims ease not in point 126 The charge of wantonness 129 Review of the authorities 131 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 skins 141 Interest as damages 143 Interest in lieu of future earnings and the future earnings also—legal absurdity 143 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 I Pathfinder " in Neah Bay 156 The "Black Diamond," No. 5 158 James Qaudin'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 22S "Method for computing the estimated catch" discussed 247 The value of seal skins 25S Evidence relating to value of vessels 265 The Carolena 303 The Thornton 305 The Onward 308 The Anna Beck 310 The Grace and the Dolphin 314 The Ada 315 IV CONTENTS. Page. Personal claims of captains and mates 319 The Carolena 337 The Thornton 357 The Onward ' 364 The Favourite 369 The Black Diamond (1886) 375 The W. P. Sayward 382 The Anna Beck 388 The Alfred Adams 392 The Grace and the Dolphin 395 The Ada 402 The Triumph (1887) 408 The Juanita 414 The Pathfinder (1889) 418 The Black Diamond (1889) and the Lily 423 The Minnie 437 The Triumph (1889) 442 The Ariel 447 The Kate 457 The Pathfinder (1890) 462 The Henrietta 466 The Oscar and Hattie 477 The Winifred 484 The Wanderer 490 ARGUMENT FOK THE UNITED STATES IN REPLY. INTRODUCTORY STATEMENT. In 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 ti*uthfulness 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 prominent and impressive irrelevance. They are at war with the spirit of arbitration, and the tendency of their influence is against the general acceptance of thatpol-' icy for the peaceful settlement of international disputes, 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 professed by some, and so sincerely felt by others. However that mav be, the annals of forensic and even of judicial discussion in courts of international 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 profit 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 Commission sits. *See Geneva Arb., vol. 2, p. 203; Id., vol. 3, p. 48x; vol. 4, p. 12, see 7. Papers, Treaty of Washington. INTRODUCTORY STATEMENT. Whatever of controversv 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. argument of Great Britain wi however, as these statements in the 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 obtained 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 nothing 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 verbuies, 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 the 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 a,mare 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"), and at page 15, folio 30 ("The claims actually submitted by Great Britain referred to in the notes verbales"), Great Britain, in distinct departure from her own precedents and from the rules of international law in such cases, where one nation seeks indemnity from another for injury to persons or property, never caused the claims to be audited or formulated in any manner 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 and 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 liabilitv 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 bv 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 VIII 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 duty up to this time; or that then 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. Promptlv 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 bv 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 tvro Governments on general questions involved, no further seizures would be made by order of the United States Government." 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. b S 2 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 vessel that went into the sea in 1884. It was not claimed before the Paris Tribunal that any British ship was in the sea before that year. It is not pretended by Great Britain that there was any assertion by that nation or her subjects of the right to take seals in Bering Sea, as contested by the United States, before 1885; and it appears that the assertion of the right by Great Britain, or by her subjects, was not brought to the attention of the United States Government or its officers until after the close of the season of 1885. Sir Charles Russell, in his argument at Paris, quotes the statement of Secretary Blaine as follows, from his dispatch on the subject of British sealing, dated 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 fact have been investigated and resolved by the Paris Tribunal, it should be stated that from the date of acquirement of Alaska in 1867 until, by reason of what took place, in the year 1885 the question of pelagic sealing or the jurisdiction of the United States in the premises was not asserted against Great Britain, for the simple reason that the latter Government or its subjects had not challenged that jurisdiction or interfered with the exclusive control by the United States of seal fishing, as claimed in Bering Sea, at Paris. The jurisdiction was asserted as soon as substantially infringed. 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 Pails, 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, O O J ' X 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 this distinction, the public mind has assumed that all the results of the action of the United States in Bering Sea (action substantial^ 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 then 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 importance of the international questions. A sense of their professional duty to the Commissioners, who have consented to add to the exacting responsibilities of the high places they hold in the judiciary of their respective countries, that of mastering and disposing of the international controversy" embraced in this enormous record and its adjuncts, has impelled the counsel for the United States to endeavor to aid them with all that conscientious research and analysis on the law and the facts can afford. If, in the result of this purpose, it should seem that any excuse is needed for the space taken in gathering and presenting the evidence under the several heads, with intelligible and orderly references, that excuse may be at once found by comparing with the record, in any one instance, the statements under any caption whatever, in the British argument, treating of the facts. SUMMARY OF THE POSITIONS OF THE UNITED STATES IN REPLY. At this place we submit brief synopses or head- notes of the leading positions taken in the argument of the United States, hereafter presented at length, in reply to the juridical positions of Great Britain on like subjects. I. International law furnishes the standard for the interpretation of treaties and conventions and is the 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. 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 then 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 iniury 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. 13 14 SUMMARY OF LEADING POSITIONS IN REPLY. It can not but occur to anyone, however, when the amounts are compared for the same claims made up for the Paris Tribunal with those presented at the hearing in Victoria, and again when both are compared with the claims now presented in the argument, that the claimants do not share these views as to compromise. 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 commissions and tribunals with like claimants, which are hereafter referred to, tend to demonstrate that the amounts are presented at such preposterous figures in order—if they are taken as a basis of calculation at all—that their reduction of half or more would still give a result out of all proportion to the truth. A foreigner permanently domiciled in the United States like the claimant Cooper, although unnaturalized, owes during the duration of his domicile allegiance to their Government, obedience to their municipal laws, and especially to their national assertion of what is variously termed dominion, sovereignty, or jurisdiction. Non constat such a person may owe original allegiance to Great Britain, and 11011 constat he puts his ships under a British flag and a British registry, he is still a resident of the United States, and so amenable to their laws and absolutely bound by their assertion of sovereignty. Whatever questions there may be as to violations of national-dignity, ofthe flag, and the ship (wholly questions of dignitv between nations), in such case he is not a person who can enter, any municipal court, much less an international commission on clahns, and 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 ofthe 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 admiraltv 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. 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. 15 ^31 16 SUMMARY OF LEADING POSITIONS IN REPLY. The right of the nation to protect a domiciled person, even in time of war, much less in time of peace, has never been asserted in favor of such person as 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 history of international law, as will be seen, shows— (1) Frequent assertions of protection in time of peace against all other nations except the nation of original allegiance; and in the applicable principles laid down by the authorities this exception will always be found in terms. (2) In war a person domiciled in a neutral country will be protected in his property and his person, even as against his own belligerant country, always provided he has not violated the law of his original allegiance 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 Government of his domicile as to neutralitv. By these well-settled doctrines of international law, by the treaty of Washington, the Paris award, and this convention, citizens of the United States, wherever domiciled or commorant, are not persons "in Avhose behalf Great Britain is entitled to claim compensation , from the United States." V. The law of "compensation" in cases of this kind is restitutio in integrum. By the English and American law, and above all, by what must be taken in this tribunal as its authority 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 3 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 or commissioners for a damages assessment. Moreover, claims for "smart money" or for satisfaction of national affronts, if any occurred, are not claims of "persons" within Article I of this convention, "in whose behalf Great Britain is entitled to claim compensation from the United States." VII. There is no warrant in international law for the allowance of punitory or vindictive damages as between nation and nation. There is no aiithoritative judgment 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 the 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 compensation 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 be allowed in the class of cases presented to this Tribunal. THE INTERNATIONAL LAW APPLICABLE. X. The costs in the Sayward 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; (V) 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 ofthe Paris Tribunal; (c) the interpolation of the term "costs in the Sayward Case" in the schedule attached to the convention can not control, modify, or enlarge the express provisions of the convention, which exclude it; and (c?) 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 INTERPfiETATION 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. 19 20 THE INTERNATIONAL LAW APPLICABLE. For other sources of light, from the copious learning ofthe world, reference is made, without any future 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—10 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 circumstances." The United States do not expect here a different application of the rules of international law from those which have been applied to then* disadvantage in their 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 international law by consent, Phillimore gives the following: (1) The,consent of nations is evidenced by the contents of treaties, which, for this as well as for other reasons, constitute a most important part of international law. (2) The consent of nations is also evidenced by the decisions of the prize courts and the tribunals of international law sitting in each country. (See I Phillimore, XLIX, p. 46, and id., p. 55, LVII, with very full consideration of authorities from Lord Stowell down—English and American.) Vattel divides the authentic sources of international law into voluntary, conventional, and customary laws. Wheaton divides the voluntary law of nations into conventional law and customary law, the former being introduced by treat}?', and the latter by usage; the former by express consent, and the latter by THE INTERNATIONAL LAW APPLICABLE. tacit consent between nations. (Sir Sherston Baker's Halleck on International Law, Vol. I, 3d ed., p. 52.) See Id., Vol. I, p. 59, citing decision of mixed commission : Greater weight is justly attributable to the judgments of mixed tribunals, appointed by the joint consent of the several States between which they are to decide, than to those of admiralty courts established by, and dependent in some measure on, the instructions of a single State. The municipal laws of particular States can be referred to only as particular admissions of general principles against the State enac/iu// them. (Sir Sherston Baker's Halleck, Vol. I, p. 59.) The law of nations is absolutely independent of municipal laws. (Opinion of arbitrators, Papers relating to Treaty of Washington, Vol, 4. pp. 59-104; award, id., p. 51.) And Phillimore savs (Int. Law. Vol I, sec. 55, p. 54) of the public documents of a nation that— These furnish decisive evidence against any State which afterwards departs from the principles which it has thus deliberately invoked, and in every case thus clearly recognize the fact that a system of law exists which ought to regulate and control the international relations of every State. (See "Santa Cruz," I <' Rob. Adm.. 61; Poison, Law of Nations, sec. 3: 1 Halleck, p. 60.) There can be no better summiug up from all the authorities on this subject than the following: In the present imperfect state of international law, which recognizes the obligatory force of no written code, and acknowledges no permanent judicial expositor of its principles, we must necessarily resort to the precedents collected from history, the opinions of jurisconsults, and the decisions of tribunals, in order to ascertain what these principles are, and to determine what are the proper rules for their application. Some of these principles and rules have been settled for ages, and have the force of positive laws which no one- will now venture to dispute or call into question. (Sir Sherston Baker's Hallei-k, Vol. I, p. 59.) 21 22 INTERPRETATION AND SCOPE OF THE CONVENTION. Decisions of municipal courts are received with the same limitations as above given as to municipal laws; i. e., they are taken against the nation of decision. (I Halleck, p. 61.) Of text writers the same rule. The works of text writers, when there is a general concurrence of views (I Kent Com., Vol. I, p. 19), but particularly if the text writers and authority be of the country asserting the contrary doctrine, the. authority should be received. (Sir Sherston Baker's Halleck on Int. Law, Vol. I, pp. 60-61.) In the language of Phillimore: If the authority of Zouch, of Lee, of Mansfield, and, above all, of Stowell, be against the demand of England; if Valin, Domat, Pothier, and "Vattel be opposed to the pretensions of Prance; it (iiotius and Bynkershoek confute the claim of Holland, Puffendorf that of Sweden; if Heineccius, Leibnitz, and Wolff array themselves against Germany; if Story, Wheaton, and Kent condemn the act of America, it can not be supposed (except, indeed, in the particular epoch of a revolution, when all regard to law is trampled under foot) that the argumentum ad patriam would not prevail; at all events, it can not be doubted that it ought to prevail, aud should the country, relying upon such authority be compelled to resort to arms that the guilt of the war would rest upon the antagonist refusing to be bound by it. (Phillimore Int. Law, Vol. I, sec. 60; Triquet et al. v. Bath, 3 Burr. B., pp. 14-80; I Halleck, p. 61.) INTERPRETATION AND SCOPE OF THE CONVENTION. Before proceeding to a consideration of the treaty or convention under discussion, some settled rules regarding the interpretation and scope of treaties are here cited. Regarding treaties like this for the peaceful settlement of disputes, Sir Sherston Baker's Halleck on International Law (3d edition, Vol. I, p. 467) says: If the contending parties have agreed to abide by the decision of these referees, they are bound to do so, except in INTERPRETATION AND SCOPE OF THE CONVENTION. 23 cases where the award is obtained by collusion, or is not confined iritliin the limits of the submission. It is usual to specify, in the agreement to arbitrate, the exact questions which are to be decided by the arbitrators, and if they exceed these precise bounds and pretend to decide wpon oilier points than those submitted to them, their decision is in no respect binding. Thus, the award of the King of the Netherlands, on reference by treaty, in 1827, of the question of the northeastern boundary of the United States, not being a decision of the question submitted to him, but a proposal for a compromise, was not regarded as binding either upon the United States or Great Britain, and was rejected by both. * * * The meaning of treaties of every kind is to be ascertained by the same rules of construction and reasoning which we apply to the interpretation of statutes and private contracts. (I Kent Com., p. 1 74: Wheaton Elements Int. Law, Pt. III. chap. 2, sec. 17, and p. 355; I Halleck, p. 206.) To go outside of the treaty in search of conjectures is to endeavor to elude it. (Vattel, Le Droit des Gens, Liv.II. (*h. XVII, sees. 263-298; Halleck, Vol. I, sec. 39, p. 297.) Greanleaf says (Greenleaf on Evidence, Vol. I. p. 321): When parties have deliberately put their engagements into writing in such terms as import a legal obligation, without any uncertainty as to the object or extent of such engagement, it is conclusively presumed that the whole engagement of the parties, and the extent and manner of their undertaking, was reduced to writing; and all oral testimony of a previous colloquium between the parties, or of conversation or declaration at the time when it was completed or afterwards, as it would tend in many instances to substitute a new and different contract for the one which was really agreed upon, to the prejudice, possibly, of one of the parties, is rejected. The first maxim of Vattel is: It is not allowable to interpret what has no need of interpretation, for when a treaty is conceived in clear and precise terms, and the sense is manifest, and leads to no absurdity, there can be no reason for refusing the sense which is naturally presented and manifest. To go elsewhere in search of 24 INTERPRETATION AND SCOPE OF THE CONVENTION. conjectures is to endeavor to elude it. (Vattel, Le Droit des Gens, Liv. II, Ch. XVII, sees. 263-298; Halleck, Vol. I, 297.) The whole treaty must be considered together, and an interpretation given to each particular expression so as to agree with the tenor of the whole instrument. (Vattel, supra; Halleck, Vol. I, 298.) Vattel says: In order to obviate all difficulty it is necessary that the arbitration articles should' precisely specify the subject in dispute—the demands of the one, the objections of the other * * * if then the sentence be confined within these precise grounds the disputants must' acquiesce in it. (Ohitty's Vattel (Phila.), p. 277.) 11 is clear that the scope of the treaty or convention is to be limited strictlv to the conferring powers of the instrument. The decision by arbitrators must be disregarded when the tribunal has clearly exceeded the powers given to it by the instrument of submission. (Hall on International Law, 4th Ed., p. 379.) There being no obscurity or ambiguity in this convention, reference to notes verbales or diplomatic correspondence, or any other extraneous matter, is not permitted, to enlarge its scope, as is attempted to be done in the British argument regarding the claims to be considered under it. If there were obscurities on the face of the treaty itself, the rule is perfectly well settled as to contracts, and treaties that the first resource for enlightenment must be to read all the parts of the treaty or contract together for a solution of the difficulty, and the second, to search the contract or treaty for any reference to extraneous matters which may give enlightenment. The presumption is that the provisions of a treaty are intended to be harmonious, and nothing short of clear proof of intention can justify any interpretation of a single provision which brings it into collision with the undoubted intention of the remainder. (Hall on Int. Law, 4th Ed., pp. 353-354, and see p. 350.) It INTERPRETATION AND SCOPE OF THE CONVENTION. In this case there is express reference to the findings of fact of the Paris Tribunal as disclosing, defining, and limiting the claims which are referred to the Commissioners. Those findings are made a part of this Convention. (See Sedgwick Stat. Const,p.229.) A reference in a statute to a prior statute, a document, or a map makes it part of the statute. (See cases cited by Sedgwick.) It appears by this record, as well as by Protocol XLI (Paris Commission, Vol. I, U. S., p. 43). that Her Majesty's Government prepared every word and line of that finding, and that it was substituted for the proposed finding submitted by the United States. Article IX of the award shows the same thing. That award being made, by a settled rule of construction, a part of this convention, by express and definitive reference, by date and article, in the thud preamble thereof, we find that the claims and the persons in whose behalf Great Britain may claim compensation before this commission are limited by Article I, and by every subsequent article referring to the claims. '' Each claim," and'' on account of any claimant" appear throughout. And all refer back to Article I, and so back to the Award and Finding of facts for description and limitation of the subjects referred to the Commission. This being so, by a settled rule of international law, applicable to the interpretation of treaties as against the nation presenting the draft of the subject of this reference, the construction, in case of dispute, must be taken most strongly against that nation. Hugo Grotius lays down the rule that "the inter- 25 pretation must made against th« >arty winch drafted the conditions: lUt contra eumfiat interpreta- tio, qui conditiones elocutus est.'" And Vattel says: Here is arulewhichcuts short all chicanery: If he who could and should express himself plainly and fully has not done so, B S 4 26 INTERPRETATION AND SCOPE OF THE CONVENTION. so much the worse for him; he can not be permitted subsequently to introduce restrictions which he has not expressed. It is the maxim of Boman law, "An obscure contract harms those in whose power it was to lay down the law more clearly." The equity of this rule is self-evident; its necessity is not less obvious. There can be no assured convention, no firm and solid concession, if they can be rendered vain by subsequent limitations, which ought to have been announced in the act, if they existed in the intention of the contracting parties. (Papers relating to the Treaty of Washington, vol. 5, p. 13, Berlin Arbitration.) By a parity of reasoning such nation can not enlarge the scope of the draft. This Commission is as clearly limited by the schedule of British claims before the Paris Tribunal, and these specifically and with exact precision described, from page to page inclusive, in the "Finding" referred to in Article I and the preamble of this Convention, as if that schedule were set out in the body of the Convention. Article I refers to a schedule which purports to be a summary, but it also refers in terms to the findings of fact for the full and detailed statement of what is referred to the Commission, and the findings of fact are, we repeat, expressly made a part of the Convention by referring back to the preamble, where those findings are identified with as much effect as if embodied. The authorities unite in declaring that the ordinary rule of interpretation of contracts and statutes applies to the interpretation of treaties. The rule has added emphasis when the international compact is entered into among nations whose organic law requires the ratification of the compact by more than one branch of the Government. This aspect of that question was exhaustively discussed by arbitrators and by counsel in the Paris Tribunal. It arose out of the proposed finding of INTERPRETATION AND SCOPE OF THE CONVENTION. 27 facts, and that discussion explains the reason why, under Article VIII of the treaty of February 2.9, 1892, conferring upon the arbitrators power to find questions of fact involved in the claims of the one nation against the other, they avoided finding any fact essentially involving a conclusion of liability. One question discussed and avoided in the finding was whether the arbitrators had power under the reference of Article "\T III to find that any act of the United States or of Great Britain was "wrong." Another question discussed was, whether a finding of fact might cover the question of how the question of citizenship would affect the question of liability. These findings were all avoided, first, because, by the proper and strict construction of Article VIII, the tribunal had no power to find facts on which a Hability or an escape from liability would directly follow; and second, because no representative of the United States, without the concurrence of the Senate, could by consent enlarge its scope. (See colloquy—Sir Charles Russell's argument for Great Britain, U. S., vol. 13, pp. 46—56, inclusive.) It is therefore especially true here that arbitrators, or commissioners, always limited to the powers and to the subjects in express terms referred to them by a' treaty or convention, have not the power to enlarge its scope or by interpretation and construction to make what is known in domestic jurisprudence as judicial-made law. The construction contended for in the argument of Great Britain is a menace to the convention itself. This is a reference of specific claims, and in this respect is unlike certain claims conventions, and is like others. . Under the claims convention between the two countries of February 8,1853 (Treaties and Conventions 28 INTERPRETATION AND SCOPE OF THE CONVENTION. between the United States and other powers, Ed. '89, pp. 445—6), there was referred to the Commission in terms: Article I. * * * All claims on the part of corporations, companies, or private individuals, citizens of the United States, upon the Government of Her Britannic Majesty, and all claims on the part of corporations, companies, or private individuals, subjects of Her Britannic Majesty, upon the Government of the United States, which may have been presented to either Government for its interposition with the other since the signature of the treaty of peace and friendship concluded between the United States of America and Great Britain, at Ghent, on the 34th of December, 1818, and which yet rema ined unsettles, as well as any other such claims which may be presented icitliiii the time specified in Article III, etc. It has been frequently held, under such a conferment of power, that the commissioners may judge of then* own jurisdiction on the question of citizenship; but it is equally clear, and was held under that commission, that, as to all claims which had not been presented to either Government since the treaty of 1814, or which were not presented within the time specified in Article III, the Commission had no jurisdiction. By the treaty of Washington, Article XII, a commission was created to which was referred: All claims on the part of corporations, companies, or private individuals, citizens of the United States, upou the Government of Her Britannic Majesty, arising out of acts committed against the persons or property of citizens of the United States during the period between April 13,1861, and April 9,1865, inclusive, not being claims growing out of the acts of the vessels referred to in Article I of this treaty (Alabama Claims), and all claims, with the like exception, on the part of corporations, etc., subjects of Her Britannic Majesty, upon the Government of the United States, arising out of acts committed against the persons or property of subjects of Her Britannic Majesty during the same period, which may have been presented to either Government for the interposition of the other, and which yet remain unsettled, etc. (Id., p. 484.) 1 INTERPRETATION AND SCOPE OF THE CONVENTION. It proceeds like the Convention of 1853, providing "for any other such claims as may be presented" within a certain time. On the general reference, the jurisdiction to decide as to who were subjects or citizens was undoubted, but on the specific limitation as to the class of claims, in that they must have arisen between April 13, 1861, and April 9, 1865, and in that they must not be claims growing out of the acts of the vessels referred to in Article I, it is clear that there could be no jurisdiction whatever in the commission. Like conventions with similar provisions as to citizenship were entered into by the United States with France January 15, 1880; with Spain February 11-12, 1871; with Mexico July 4. 1868; and with Great Britain July 12, 1822 (Id., pp. 356, 418, 700, 1025), for the purpose of ascertaining and determining the amount of indemnification due to the citizens of the United States under the decision of the Emperor of Russia (referred to in the opposing argument). Articles II and III of that treaty provided for a method of ascertainment of the average value of certain property, and having ascertained that, it was provided that the Secretary of State should furnish the Commissioners a list of this and other private property for which the citizens ofthe United States claimed indemnification under the award of the Russian Emperor, thereby limiting the jurisdiction of the Commissioners by a specific list. (Id., p. 420.) The history of the Alabama treaty and arbitration is especially instructive in this connection, because of its broad conferment of jurisdiction and its bearing on the contention of Great Britain here that that Government may present a national claim as distinguished from those presented on account of its subjects. (Id., p. 478.) 29 30 INTERPRETATION AND SCOPE OF THE CONVENTION. embrace t , anc over the le conferment of so much of these point we submit. Articles I, III, and pL, ..... jurisdiction upon the arbitrator: articles as is necessary to c~ (Id., pp. 479, 481-2.) Article I. Whereas differences have arisen between the Government of the United States and the Government of ut of the ^ given rise s the "Alabama Claims' stil Her Britannic Majesty, and own ojusu, gnming oi acts committed by the several vessels, which have g to the claims generically known as Britannic Majesty has authorized her enipotentiaries to express, in a tri for b And whereas hei *h Commissioners ligh Commissioners and plenipotentiaries to express, in a •iendly spirit, the regret felt by Her Majesty's Government )r the escape, under whatever circumstances, of the Ala- ama and other vessels from British ports: Now, in order to remove and adjust all complaints and laims on the part of the United States, and to provide for the speedy settlement of such claims which are not admitted by Her Britannic Majesty's Government, the high contracting parties agree that all the said claims growing out of acts committed by the aforesaid vessels, and generically known as the "Alabama Claims," shall be referred to a tribunal of arbitration to be composed of five arbitrators, to be appointed in the following manner, that is to say: One shall be named by the President ofthe United States; one shall be named by Her Britannic Majesty; His Majesty the Bang of Italy shall be requested to name one; the President of the Swiss Confederation shall be requested to name one, and His Majesty the Emperor of Brazil shall be requested to name one. # # # # # Article VIII. * * * The said tribunal shall first determine as to each vessel separately whether Grea.t Britain has, by any act or omission, failed to fulfill any ofthe duties set forth in the foregoing three rules, or recognized by the principles of international law not inconsistent with such rules, and shall certify such fact as to each of the said vessels. In case the tribunal find that Great Britain has failed to fulfill any duty or duties as aforesaid, it may, if it think proper, proceed to award a sum in gross to be paid by Great Britain to the United States for all the claims referred to it. * * * Article X. In case the tribunal finds that Great Britain lias failed to fulfill any duty or duties as aforesaid, and does not award a sum in gross, the high contracting parties agree that a board of assessors shall be appointed to ascertain and determine what claims are valid, and what amount or. INTERPRETATION AND SCOPE OF THE CONVENTION. amounts shall be paid by Great Britain to the United States on account of the liability arising from such failure, as to each vessel, according to the extent of such liability as decided by the arbitrators. * * * The members thereof shall subscribe a solemn declaration that they will impartially and carefully examine'and decide, to the best of their judgment and according to justice and equity, all matters submitted to them, and shall forthwith proceed, under such rules and regulations as they shall prescribe, to the investigation of the claims which shall be presented to them by the Government of the United States, and shall examine and decide upon them in such order and manner as they may think proper. * * * The decision of the assessors shall be given upon each claim in writing, and shall be signed by them respectively. Now, in order to determine by juridical ascertainment what was covered by the phrase "generically known as the Alabama Claims," (thus not specifically described as here) reference was had by the tribunal to the authoritative and certified record of the action of the Joint High Commission which framed the treaty, stating the questions to be submitted to the Arbitrators. (This will be found in Appendix No. 1 hereto.) The conferment of jurisdiction was certainly broad enough to cover national claims in the case, but before the hearings of the Geneva Arbitration were opened, and as soon as the American case was presented, Great Britain intimated the purpose of that Government to withdraw from the arbitration, on the ground that the national claims were not properly before it; and then by the assent of the United States the arbitration was saved by an order eliminating the national claims of the United States from the protocol, Great Britain holding that the tribunal had no jurisdiction in the premises. (See Protocols I, III and its Annex, V, VI, and VII, Papers Relating to the Treaty of Washington, Vol. 4.)* Page 160. * The British counsel insisted, too, that the only ships which appeared in the proceedings of the High Joint Commission were the Florida, 32 INTERPRETATION AND SCOPE OF THE CONVENTION. In the light of the foregoing authorities and this history, we reproduce here the question propounded in the opposing brief as follows: The first questions, therefore, are, What are the claims, and in whose behalf is Great Britain entitled to claim compensation*? (Pol. 10, p. 14.) The answer there set'down is attempted to be given from the diplomatic correspondence between the Governments, including notes verbales, extending from October 21, 1886, down to 1890, and from the domestic correspondence between the claimants and the Government of the Dominion of Canada—the United States having no diplomatic relations with that Government—and which, by the way, was never brought to the attention of the United States. After considering these means for interpreting a convention which confessedly contains no ambiguity, this conclusion is reached on those premises in the British argument (p. 18): 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 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. The answer of the quoted supra is this: The "claims" are such as.axefspeciricairy c United States to the question lescribed Alabama, Georgia, &nA*SKenoMdbah-t and that these hecame "generically" known as the "AlaJ^fl/m.ffi'Claims." (See British argument, Papers relating to the Treaty of Washington, Vol. 3, p. 260, par. 3.) Ana later, on that ground the connsel for Great Britain declared to the Arbitrators "in the^most explicit manner" (thus suggesting a purpose not to he bounfL^f to "withdraw," as in the case of the national claims) that claims iu respect of vessels not specified in the case ofthe United States among those for whose acts the United States asked the Tribunal to hold Great Britain, are not, in the view of Her Majesty's Government open to argument or discussion "since, they can not properly be taken into consideration by the Arbitrators for any purpose whatever." (Id., p. 261.) INTERPRETATION AND SCOPE OF THE CONVENTION. as referred to the Commission in and by the convention of February 8,1896, and the "persons in whose behalf Great Britain is entitled to claim compensation" are those specifically named in that convention as the persons who presented the claims at Paris, unless and except— (a) The United States establish that another person in any case is the "actual" owner who is a citizen of the United States—an exception provided for in the convention itself. It is not doubted at all that a representative of a deceased claimant or his assignee could present the claim, but in such case he would stand in all respects as to rights and disabilities as the original claimant would have stood under the convention. 33 For the ascertainment of the jurisdiction of the Commission over the subject-matter the Convention of February 8, 1896, consists of three documents:* (1) The convention standing detached, which does not disclose what claims are referred to the Commission, or how they "arise," or what they are, and is unintelligible on the question of jurisdiction without reference to the other two documents which are named in it. (2) The treaty signed at Washington on February 29, 1892, named in it; and from this it appears that the claims referred to the Commission must be claims "arising" under that treaty; that is, the Commission is limited to the consideration of claims for injuries that arose out of the assertion of the claim of the United States to jurisdictional rights in the waters of Bering Sea with reference to seals, which is the subject- matter of that treaty. * In connection with the argument on construction to follow, the Commissioners will be furnished the Treaty of 1892, the Findings of Fact, and the Schedule—pp. 1 to 60, inclusive—therein referred to, and the Convention of 1896, printed together in convenient form, to be referred to for accurate comparison with the progress of the argument. B S 0 34 INTERPRETATION AND SCOPE OF THE CONVENTION. Clearly, here is a limitation which prevents this Commission taking cognizance of any claim for injuries committed by the United States generally, as, for instance, on a merchant ship or a whaler on the high seas, which would have been cognizable under the conventions of 1853 and 1871. (3) The Award and the Findings of the Tribunal of Arbitration are found specifically referred to in this convention by date, and especially find there specified certain Findings of Fact; and so the "claims" must "arise" as well by the Award and the Findings of Fact as by the Treaty; and in this award and findings of fact so referred to as defining what this Commission shall take cognizance of (a limitation in addition to that which we have seen attached by the reference to the Treaty of 1892), we find our way to the carefully prepared schedule of claims, prepared by Great Britain and sworn to by the claimants, of which this Commission is given jurisdiction in this inquiry. The subject-matter of that finding—to which apt relative words and repetitions refer throughout the finding, article by article—is stated in No. 1 of the Findings of Facts, and is this: These 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, pp. 1 to 60, inclusive, etc. Thus, throughout every paragraph of the findings, in each one continuing, as in Finding 1. Thus in— 1. (ft) Questions as to the value of "the said vessels or their contents, or either of them, and the question as to whether the vessels mentioned in the schedule to the British case, or any of them, were wholly or in part the actual property of citizens," etc. (V) It being understood that it is "open to the United States to raise these questions or any of them interpretation and scope of the convention. 35 if they think fit in any future negotiations as to the liability of the United States Government to pay the amounts mentioned in the schedule TO THE BRITISH CASE." 2. That the "seizures aforesaid," with the exception of the Pathfinder seized at Neah Bay, were made, etc. 3. (ft) "That the said several searches and seizures of vessels were made by public armed vessels of the United States," etc. (b) "That the alleged acts or offenses for which said several searches and seizures were made were in each case done or committed,"- etc. (c) "That the said fines and imprisonments were for alleged breaches of the municipal laws of the United States," etc. (No reference to "fines and imprisonments" appears anj^where except between pages 1 to 60, inclusive, of the British case.) 4. No reference to the subject-matter. 5. "That the district courts of the United States in which any proceedings were had or taken for the purpose of condemning any vessel seized as mentioned IN THE SCHEDULE TO THE CASE OF GREAT BRITAIN (pp. 1 to 60, inclusive) had all the jurisdictions and powers of courts of admiralty, including the prize jurisdiction," etc. It follows that, as to everything except "Additional claims," the convention of 1896 confers jurisdiction upon the Commissioners for three purposes only: (1) To determine the amount of each claim appearing by the British schedule (pp. 1 to 60, inclusive), the amount being the question on which the finding in express terms declined to pass. (2) To determine as to the liability of the United States on account of "each" claim of each person for injuries, as set down in the British schedule (pp. 1 to 60, inclusive). 36 INTERPRETATION AND SCOPE OF THE CONVENTION. (3) To determine the question of liability of the United States which might be raised on account of "whether the vessels mentioned in the schedule" (pp. 1 to 60, inclusive), or any of them, were wholly or in part the actual property of citizens of the United States. Finding I, last paragraph, clearly points out that the question for the future negotiations of the Governments is only as to the liability of the United States "TO PAY THE AMOUNTS MENTIONED IN THE SCHEDULE to the British case." Article 3 of the Convention provides that the Commissioners shall "hear" only questions of fact u not found by the Tribunal of Arbitration^ and, of course, to ascertain what was found, and what is therefore excluded from the cognizance of the Commissioners, can only be ascertained by the findings themselves, here again, referred to as a part of the Convention, as has been seen. The claims, then, referred by the Convention, are no part of them, claims of vessels, but are "claims" on account of "persons," "arising" by the treaty, the award, and the findings of fact. The word "arise," in pointing the way to the description of the particular claims to be referred, as used in Article I of the Convention, is clearly used in the sense of "having then* originals," "presenting themselves," "appearing from."* The only other sense in which the term can be used in connection with the context would be that of I cause " or " creation," which would give to the sentence the meaning that the claims for injuries were caused or created by the treaty, the award, and findings, which of course would be absurd. These claims are of persons, as ascertained by the findings, by the schedule (pp. 1 to 60, inclusive), and by the convention of 1896. "Latham's Johnson's Dictionary, "Arise," 3; Crabb's Synonyms, p. 291; Wehster. "Arise," 2'. L INTERPRETATION AND SCOPE OF THE CONVENTION. 37 Article I of the Convention names the claims as "claims on account of injuries sustained by persons." Article III provides that the Commissioner shall determine, etc., in respect of "each claim," and "assess the compensation if any to be paid on account thereof." Article VIII uses this language: "The amount awarded to Great Britain under this Convention on account of any claimant shall be paid," etc. Turning now to the schedule of claims of persons presented before the Paris Tribunal, found by the finding, and of the persons who presented them as claimants, the following is the list and the nature of the claim of each, as set out in "schedule (pp. 1 to 60, inclusive) of the British case." The details are omitted of the several items that go to make up the claims, except in one case, which is used for illustration of every other claim. The amounts are omitted because the findings did not pass on amounts, and their assessment was referred, in consequence, to the Commissioners by clause second of Article III of the Convention. Claimant and sworn owner. Schooner. (1) William Munsie Carolena Items of claim without amounts, as follows: "Value of vessel, value of outfit, insurance, wages of crew, passage of crew, passage of mate, personal expenses, legal expenses, estimated seal catchfor 1886, total claimed by owner with interest at 7 per cent to date of payment." (2) James Douglas Warren. Thornton Similar details. 38 INTERPRETATION AND SCOPE OF THE CONVENTION. Claimant and sworn owner. (3) (±) (5) (6) (7) (3) (9) (10) (It) (12) (13). (14) (15) fl6) (17) (18) (19) (20) Schooner. Gut- Charles Spring... Charles Spring... Thomas H. Cooper Thomas H. Cooper Thomas H. Cooper Thomas H. Cooper Gutinan & Frank, man as the owner, Frank as equally interested in the results of the sealing voyage. James J. Gray George Byrnes Charles E. Clark " Richard Hall, William J. Goupel, Hans Halgeson, partners as Hall, Goupel & Co. j William Munsie ) Frederick Carnie ) Edgar Crowe Baker Daniel McLean..... Bosine Gibson ( Onward Favourite W. P. Sayward Grace Anna Beck ... Dolphin Alfred Adams. Ada .... Triumph Juanita. Similar details. Do. Do. Do. Do. Do. Do. Do. Do. Pathfinder John 0. Blackett Morris Moss Morris Moss.. John M.Taylor Samuel W. Bucknam Bela B. Lawrence Charles Spring Victor Jacobson William Munsie J Triumph No. 2.. Black Diamond Lily Ariel Kate Minnie Pathfinder (second claim). Do. Do. Do. Do. Do. Do. Do. Do. Do. INTERPRETATION AND SCOPE OF THE CONVENTION. 39 The claims of persons other than owners are scheduled as follows: Claimants. Nature of claim. David Monroe Master of Onward.. Illegal arrest and imprisonment. Margotich Mate of Onward Do. Hans Guttormsen. Master of Thornton. Do. Harry Norman Mate of Thornton... Do. James Ogilvie .... Master of Carolena. Do. James Black Mate of Carolena... Do. W arren Master of Dolphin.. Sufferings and losses; navigating four vessels from TTnalaska to Sitka. John Beilly Mate of Dolphin Sufferings and losses. George P. Ferey... Master of Sayward.. Do. A. B. Laing Mate of Sayward... Do. Louis Olsen Master Anna Beck.. Do. Michael Keefe Mate Anna Beck... Do. W. Petit Master of Grace Do. C. A. Lundberg... Do. No claims are made in behalf of any other person. In schedule 1 to 60 in the cases of Morris Moss, "owner" of the Lily; of Byrnes, owner of the Triumph, and of Bucknam, as owner of the' Ariel, and in those cases only, claims are set up in general for the crew and hunters, but only for their share in the estimated future catch, which, in the details of each of those claims, made by the owner, is included in the claim of the owner, and so stated. Not only are there no other persons named as claimants, but there are no other claims of persons mentioned, described, or suggested in the schedule of claims referred to this Commission, or in any paper referred to or connected with either the treaty, the award, the findings of fact, ,or the Convention. Hence, there is no jurisdiction of such claims, which are presented for the first time, in the whole history of the subject, in the British argument. 40 CLAIMANTS—BRITISH, DOMICILED IN UNITED STATES. A "lump sum" for persons in general not named or suggested in the schedule—for crews and others whose names are not mentioned anywhere—will not do under this convention, and the new position of Great Britain advanced at page 56 of the argument can not be maintained. This brings us to the following proposition: There are two classes of "persons" among these claimants, who, by the settled and adjudicated principles of international law, are not "persons in whose behalf Great Britain is entitled to claim compensation from the United States." These are: (1) Original subjects of Great Britain still owing that nation a qualified allegiance (in respect of sovereignty and certain exterritorial laws), but who by domicile in the United States; without naturalization, owe allegiance to the sovereign claims of the United States and obedience to their municipal laws. (2) Citizens of the United States, alleged to have been domiciled in Great Britain, who had not become naturalized in Great Britain, but who owed allegiance to the United States, obedience to the jurisdiction asserted by the authorities of its sovereignty—executive, legislative, and judicial—and obedience to their exterritorial laws. And of these in their order. (ONE CLAIMANTS WHO WERE ORIGINAL BRITISH SUBJECTS, BUT DOMICILED IN THE UNITED STATES. In respect of some of the schooners, there are two owners in this class, as to one of whom there may be CLAIMANTS BRITISH, DOMICILED IN UNITED STATES. doubt, but in respect of all claims presented in behalf of Thomas S. Cooper, as owner, the fact of his domicile in the United States is conclusive against them. The British argument assumes (p. 38-39), and especially from the letter of Secretary Gresham, which is there imported into this case for the firsl time, that the omission of the words "British subjects," in Article I of the Convention, as defining those for whom Great Britain might present claims under the Convention, was a means of enlargement of jurisdiction rather than of limitation. As a matter of fact, that description was eliminated, for the reason that its use, and the similar use of terms importing the original citizenship of a claimant, had in all prior Conventions been productive of much embaiTassment to the Commissioners. Running through the proceedings of the Mixed Commissions of 1853 and 1871 it will be seen that claims were constantly presented in behalf of persons who were technically British subjects, because never naturalized in this countrv, and yet who had established legal domiciles in the United States. The same difficulty had arisen under all the other Mixed Commissions which have been before referred to. In such cases it was insisted on the one side that such a description of persons could not be eliminated from the convention, although at the same time it- would be admitted that a person legally domiciled in a country at the time his claim arose, though not naturalized, could not recover against the country of his domicile, before such commissions, or against any .other country, by virtue of his original citizenship of the country of his original allegiance Under the Mixed Commission of 1853 the term "British subject" was in such case eliminated from the convention, by construction, by the British umpire, Bates, in the Lauranfs case; the umpire holding that b s 6 41 42 CLAIMANTS—BRITISH, DOMICILED IN UNITED STATES. the term "British subject," although correctly describing the political status ofthe claimant, was not intended by the convention of 1853 to mean that a British subject domiciled, though not naturalized, in Mexico, and who had thus become civilly subject to the laws and the sovereignty of that country in its foreign rela- tions with countries other than Great Britain, could urge his political status, of original allegiance to Great Britain, as a claimant against the United States for injuries suffered at their hands in Mexico. Under the Mixed Commission established by the treaty of Washington of 1871, and which finished its labors in 1874, the question came up on demurrer of the United States in the Barclay case, and it was there held on the broad conferment on the Commissioners of jurisdiction by the treatv of Washington (it appearing by his statement of claim that he was a resident of the United States, and therefore domiciled there) that the demurrer must be overruled on the ground that Barclay was a "British subject" within the language of the Convention; but in that . case it clearly appeared, as strongly urged by the British counsel, in point III of his brief, that the claimant Barclay had, while domiciled in the United States, been as "faithful to the United States as any loyal citizen," the principle being that he had been loyal to the sovereignty of his domicile and obeyed its municipal laws.* In consideration of these difficulties under prior commissions, therefore, the framers of the present Convention provided, in effect, that the claims to be presented would only be those that Great Britain j|||iguld be entitled to present under the rules of inter- * See report by Her Maj esty's agent, of the Mixed Commission, presented to both Houses of Parliament, 1874, and published in Parliamentary Papers under the title "North America, No. 2" (1874), page 297. CLAIMANTS—BRITISH, DOMICILED IN UNITED STATES. national law, and the term "British subjects," as defining claimants, was omitted by express intention. There is no question whatever as to Thomas H. Cooper having been during all the period in question, and up to the close of the sitting of this commission at Victoria, legally domiciled in the United States. The fact of residence in New York and San Francisco for more than forty years continuously was testified to by Warren and by Cooper. (See Record, pp. 940, 1267, 1836-37, 941, 951.) The United States did not choose to call out anything farther regarding the undoubted fact of that residence, and Great Britain did not seek to explain it. It was found by the testimony that Cooper was a married man and had resided in the United States and made his home at San Francisco for more than thirty-five years continuously, and that he had never been to Victoria but three times, and then only for a few days at a time on visits. It is universally held that residence unexplained is conclusive proof of domicile. • Dicey states the rules of evidence as follows (see Dicey on "Conflict of Laws," American notes by J. B."Moore, 1896, p. 132): (1) A person's presence in a country is presumptive evidence of domicile. (2) When a person is known to have had a domicile in a given country, he is presumed, in absence of proof of a change, to retain such domicile. (3) Besidence in a country is prima facie evidence of the intention to reside there permanently {animus manendi), and in so far evidence of domicile. See cases, and see Sir W. Scott, so often quoted on this subject: "Time is the grand ingredient in constituting domicile." (The Harmony, 1800, 2 C. Rob., 322; see Dicey, p. 137, note.) "Residence is prima facie evidence of domicile." (Sir Sherston Baker's Halleck, Vol. I, p. 421.) 43 jMr 44 CLAIMANTS—BRITISH, DOMICILED IN UNITED STATES. Phillimore on Domicile, page 146, says: Every man is viewed by the law of nations as a member of the society in which he is found. Besidence is prima facie evidence of national character, susceptible, however, at all times, of explanation. If it be for a special purpose and transient in its nature, it shall not destroy the original or prior national character, but if it be taken up animo manendi, then it becomes a domicile, superadding to the original or prior character the rights and privileges, as well as the disabilities and penalties of a citizen, a subject of the country in which the residence is established. (Cited in arguments with Dr. Phillimore in Uhdes case, in report of decisions, Commission for the Settlement of Claims between Great Britain and the United States, U. S., 1856, p. 445.) To the same effect see "The Indian Chief," Rob. Adm. Reports, 3—12, and collection of authorities, and then* analysis in Dana's Wheaton, sec. 322 et seq., showing the British and American authorities in harmony. In I Binney's Report (p. 349), domicile is defined as "residence at a particular place accompanied with positive or presumptive proof of continuing there for an unlimited time." The logical positions of Great Britain as to Cooper are these: (a) That his ownership of the vessels seized must be taken as conclusive. (In this we fully agree, but on other and distinct grounds from those taken by Great Britain.) (b) That although domiciled in the United States since boyhood, and for nearly half a century, because he was not naturalized, and because he was an original British subject, he could, under the municipal laws of Great Britain, take out a British registry for his ships, and put them under the British flag. (c) That so domiciled, by virtue of such registry and flag alone, in direct violation of the municipal laws CLAIMANTS BRITISH, DOMICILED IN UNITED STATES. 45 ofthe United States of exterritorial force, and in direct violation of their criminal statutes, also of exterritorial force, and in direct defiance of the. national claim and assertion of jurisdiction over the sealing waters of Bering Sea (a sovereign claim made authoritatively by all the branches of the Government) he could send his vessels to take seals in those waters. (cfy That concurrently with his, the vessels of Cooper's neighbors in San Francisco, who were native- born citizens of the United States, protected no more than himself by the laws of the United States, having been sent by them to take seals in the same waters, may be seized and condemned, under those laws, while at the same time their owners, his neighbors and fellow-citizens of thirty-five years, witness his fleets go and come, and take seals with impunity. (e) That if in these circumstances the United States enforced the law alike and with equal hand upon the propertv of all then citizens of San Francisco, be he a citizen by domicile or like his neighbors by nativity or naturalization, that Cooper, by reason of his original political allegiance and by having put his vessels in a British registrv and under a British flag, is a person on account of whom, for these penalties that he has suffered, and while still retaining his American domicile, Great Britain can claim compensation from the United States. We affirm that no such monstrous doctrine can be tolerated for a moment. In such circumstances the citizen by domicile (for that is what he is) can not lay aside his character as a "national" of the United States whenever he sees fit to defy the same sovereignty and the same laws that protect him, by asserting his original political allegiance and the fact that he has not gone through the form of naturalization. Much less can he call upon the country of his I; 46 CLAIMANTS—BRITISH, DOMICILED IN UNITED STATES. original allegiance to make reclamation for Mm against the nation of his actual allegiance for what he has suffered for violation of the latter's laws. We quote from the language of Secretary Fish, in his letter to Mr. Bachiller of April 8, 1874 (2 Wharton's Dig., sec. 215), the principle involved: It would be a monstrous doctrine, which this Government would not tolerate for a moment, that a citizen of the United States who might deem himself injured by the authorities of the United States could, by transferring his allegiance to another power, confer upon that power the right to inquire into the legality of the proceedings by which he may have been injured while a citizen. Protection can not be invoked by domiciled foreigners, except for discrimination and arbitrary acts "as distinguished from penalties and punishments incurred by the infraction of the laws of the country within whose jurisdiction the sufferers have placed themselves." (2 Wharton's Dig., sec. 189, p. 434, and authorities.) And 1 Kent, p. 76: "Domicile is the test of national character." Lord Stowell (I Dod. Adm., p. 224, The Ann): A person domiciled in another country is to be taken as a subject of such country. * * * He can not take advantage of both characters at the same tinie. Bluntschli (Int. Law codified, sec. 394): Certain persons may, in rare instances, be under the jurisdiction of two different States or even a greater number of States. In case of conflict the preference will be given to the State in which the individual or family in question have their domicile; their rights in the States where they do not reside will be considered as suspended. Said Mr. Webster, in his report to the President of the United States in Thrasher's case (6 Web. Works, pp. 522-523): The geaeral rule of the public law is that every person of full age has a right to change his domicile, and it follows that when he removes to another place with the intention to CLAIMANTS BRITISH, DOMICILED IN UNITED STATES. 47 make that place his permanent residence, or his residence for an indefinite period, it becomes instantly his place of domicile. * * * It is well known that hundreds of thousands of persons are now living.in this country who have not been naturalized according to the provisions of law, nor sworn any allegiance to this Government. What would be the condition of this country and its Government if the sovereigns of Europe, from whose dominions they have emigrated, were supposed to have still a right to interpose to protect such inhabitants against the penalties which might be justly incurred by them in consequence of their violation of the laws of the United States? In questions on this subject the chief point to be considered is the animus manendi, and this must be decided by reasonable rules and the general principles of evidence. Mr. Marcy, Secretary of State, September 26, 1853, in Koszta case, as quoted in 2 Whart. Dig., sec. 198, p. 485: Such domiciled citizen * * * is under the bonds of allegiance to the country of his residence, and if he breaks them, incurs the same penalties; he owes the same obedience to the civil laws and must discharge the duties they impose on him. It is to be noted that in the Koszta case the right was asserted by the United States to protect a domiciled person, although unnaturalized, against every nation except the nation of his original citizenship.* (See id., p. 505.) See also Marshall, C. J, in Murray r. Charming Betsey (2 Cranch, p. 120): Carlisle v. United States (16 Wall., p. 147). Wharton, in his Criminal Law v8th edition, sec. 269—281), quotes Phillimore to the point that a man can have only one allegiance, and proceeds: But 1 must agree with Heffter in holding that a mere resident in a State owes for the time being allegiance to such State, and may be guilty of treason to such State if as a * This distinction is not in point here, but attention is called to it in connection 'with the question of original allegiance, considered later. 1 [ere the United States is not asserting the right to protect Coopej for violation of the laws of Great Britain, but is denying the right of Great Britain to protect Cooper in his defiance of the sovereignty and violation of the laws of the United States. 48 CLAIMANTS—BRITISH, DOMICILED IN UNITED STATES. private person he wages war against it or renders comfort to its enemies'. Cobbett, for instance, when in the United States was never naturalized, nor did he ever restrain himself from declaring that he was and continued to be a British subject, yet no one would have pretended that Cobbett, while residing in the United States, was not liable to be indicted for all offenses, political or otherwise, made indictable in the place of his residence, and the same position has been, as we have seen, taken by the British Government in respect to citizens of the United States who when residing in Ireland have been engaged in conspiracies against the British Government. And he closes with this quotation from Phillimore: All strangers commorant in a land owe obedience, as subjects for the time being, to the laws of it. "It is not necessary to citizenship that the domiciled inhabitant should have the right to vote or hold political office;" and under all the authorities, without exception, a person so domiciliated owes civil and political allegiance to the local sovereignty. (See Judge Hoar in Commission, 1871, Report of British Agent, ]). 280, Appendix 6; "Venice," 2 Wall., 274; "Peterhoff," 5 Wall., 60; "Mrs. Alexander's Cotton," 2 Wall., 417; "Venus," 8 Or., 253; Story's Confl. of Laws, sec. 68; Morley's Int. Law, sees. 68, 168; Trist's Int. Law, II, 233, 298-9; I, 82, 83; Ilalleck's Int Law, 717, sec. 2g; 702, sec. 7; 705, sees. 12, 13, 14; 2 Kent's Com, sec. 25.) And in return he is entitled to the equal protection of the laws of that sovereignty with other citizens, with the very limited qualification that the local sovereignty can not intervene to protect him from the consequences of his infraction of the sovereignty or of the exterritorial laws of the nation of his original allegiance. The local sovereignty can protect him and protect his propertv and make reclamation for him against every other nation, except the one of his original allegiance, in any case; and in case of war, even if the country of his original allegiance is belligerent, the CLAIMANTS BRITISH, DOMICILED IN UNITED STATES. country of his local allegiance being neutral, may intervene to protect him as a neutral as against the country of his original allegiance; but never, even in that case, if he has been guilty of an act hostile to the country of his original allegiance.* What right of protection or reclamation remains to the nation of original allegiance against the nation of domicile in respect of the subject of the former so domiciliated but not naturalized in the latter? There is no conflict of authority in international law on this subject, and the strictest rule against the country of domicile in favor of the nation of original allegiance is laid down by Hall (sec. 87. pp. 291-292), as follows: They (the nations of original allegiance) have the right to exact reparation for maltreatment of their subjects by the administrative agents of a foreign government if no means of obtaining legal redress through the tribunals of the country exist, or if such means as exist have been exhausted in vain; and they have the right to require that, as between their subjects and other private individuals, the protection of the state and the justice of the courts shall be afforded equally, and that compensation shall be made if the courts from corruption or prejudice or other like causes are guilty of serious acts of injustice. Broadly, nil persons entering a foreign country must submit to the laics of that country. * * * But even Hall qualifies this rule as follows, 295: When the subject of a state is not merely passing through or temporarily resident in a foreign country, but has become domiciled there, the right of his state to protect him is somewhat affected. Hall says further that the jurisdiction of the state of domicile is complete over foreigners who are amenable to all its laws (pp. 216-221). 49 * Great Britain held that a person who was a British subject, the son of a British father, born in France, but still a British subject by the laws of England, and taking a commission in the French army in a war with England, was guilty of high treason, and he was convicted. (State Trials, XVIII.) B S 7 50 CLAIMANTS BRITISH, DOMICILED IN UNITED STATES. Udny v. Udny, L. R. I. Lord Westbury says (in H. L. Sc. 441): The law of England and of all civilized countries ascribes to each individual at his birth two distinct legal states or conditions, one by virtue of which he becomes the .subject of some particidar country, binding him by the tie of natural allegiance, and which may be called his political status; another by virtue of which he has ascribed to him the character of a citizen of some particular country, and as such is possessed of certain municipal rights and subject to certain obbgations, which latter character is the civil status or condition of the individual, and may be quite different from his political status. The political status may depend on different laws in different countries, whereas the civil status is governed universally by one single principle, namely, that of domicile, which is the criterion established by law for the purpose of determining civil status. But this subject will be considered more directly when we come to the status of American citizens alleged to have been domiciled in Great Britain (infra, pp. 53—66). The cases cited in the British argument on subject of domicile (p. 53), serve to illustrate principle, thus: In I Knapp, P. C. 295, it was decided: (1) That Drummond was a British subject; (2) that he was domiciled in France; (3) that under a treaty providing for compensation by the French Government for losses to British subjects, Drummond could not claim compensation from France as a British subject because of his domicile in France.* Here in this case our positions are as to Cooper precisely the same as there held as to Drummond ah,d France, thus: (1) That he is a British subject by original allegiance, as Drummond was; (2) that at the time of the alleg*ed injury he was domiciled in the the *In the same report (2 Knapp, P. C. 51) will be found similar holdings pslljltlly strong against the claim in behalf of Cooper. In Long's case it is held that a corporation composed of British subjects existing in a foreign country by the latter's assent must he held to he a foreign cor- poration. CLAIMANTS—BRITISH, DOMICILED IN UNITED STATES. the United States; (3) that under a treaty providing for compensation for injuries to persons for whom Great Britain is entitled to make reclamation against the United States, reclamation can not be made for Cooper because of his domicile in the United States; but the added objection in Cooper's case is that he was engaged in violating the laws and defying the sovereignty of his domicile. But the whole question as to any claimant standing in the shoes of Cooper is not only concluded against Great Britain by the rules of international law, but by the treaty between the nations of July 3, 1815, as follows:* The inhabitants of the two countries, respectively, shall have liberty freely and securely to come with their ships and cargoes to all such places, ports, and rivers, in the territories aforesaid, to which other foreigners are permitted to come, to enter into the same, and to remain and reside in any parts of the said territories, respectively; also to hire and occupy houses and warehouses for the purposes of their commerce; and, generally, the merchants and traders of each nation, respectively, shall enjoy the most complete protection and security for their commerce, but subject always to THE LAWS AND STATUTES OF THE TWO COUNTRIES, RESPECTIVELY. Il can not be seriously contended that in behalf of her subjects residing in the United States as provided in this treaty, and enjoying complete protection and security of their laws, but subject to their laws and statutes, as provided and stipulated in the treaty, Great Britain can make reclamation on account of any such subject for injuries suffered at the hands of the United States while in the act of violating those laws and statutes, more especially when such statutes are in the nature of regulations of trade and commerce of exterritorial effect, directly applicable to all citizens of the United States everywhere and "all persons." "Treaties and Conventions between the United States and other Powers (p. 410, ed. 1889). 51 52 CLAIMANTS BRITISH, DOMICILED IN UNITED STATES. In point under this treaty is the opinion of the Commission for the settlement of claims between the United States and Great Britain under the convention of 1853 (pp. 336-337), and also cited in Barclay's case under the Commission of 1871. Finally, as to the Cooper class of claims, the logical position of Great Britain is: (a) That under the rules of international law and the treaty of 1815 unnaturalized British subjects legally domiciled in the United States are entitled to the protection of the laws equally with American citizens; but— (b) They are at the same time exempt and privileged from the effects of the operation and execution of the laws that protect them, and thus possess the privileges and protection of both nationalities and obligations of obedience to neither; not to Great Britain, because beyond her territory and jurisdiction, and not to the United States because they may claim protection against them as British subjects. It is not true, and Fiore emphatically denounces the extension of such protection as is here claimed by Great Britain in this class of cases in his Nouveau Droit International Public, I, 561: "The protection is illicit and unjustifiable when its object is to confer a privileged position upon the subjects or citizens., (Nationaux) residing abroad." Cooper was, at the time he became the legal owner of these vessels, and at the time of the seizures quoad the United States, and in their relations to him as against Great Britain, an American citizen, and as such his ships, as we shall see, were entitled to carry no flag but that of the United States, and were not even entitled to British registry. There remains to be considered in cases like Cooper's the position taken in ihe British argument, which, we take the liberty to observe, should carry its own refu- CLAIMANTS -CITIZENS OF THE UNITED STATES. 53 tation, that under conventions of this kind, in terms for the adjustment of private claims, like all the conventions on claims ever entered into, in some way or other "the flag and the register" of a ship are to carry not only conclusive evidence of the nationality of the owner in the sense, not only of political citizenship but of domicile, and are also to carry that conclusive presumption, not only on the high seas, but into this international court. But as this argument applies as well to the claims •presented in behalf of American citizens, native born and naturalized, alleged to be domiciled in Great Britain, it will be treated under a subsequent caption. (See pp. 66 to 85.) (TWO.) THE CLAIMANTS WHO WERE ORIGINAL CITIZENS OF THE UNITED STATES, NATIVE BORN OR NATURALIZED, AT THE TIME OF THE ALLEGED INJURIES, BUT NOT AT THAT TIME NATURALIZED IN GREAT BRITAIN UNDER THE NATURALIZATION TREATY OF 1870, EVEN IF DOMICILED IN GREAT BRITAIN, ARE NOT, UNDER THIS CONVENTION, PERSONS "IN WHOSE BEHALF GREAT BRITAIN IS ENTITLED TO CLAIM COMPENSATION FROM THE UNITED STATES." In the first place, the burden is upon Great Britain to show that the claimants are such persons, and if it were true that legal domicile would give them tl needed status, the record fails to disclost of domicile within the rules of evidence tional law.* But conceding for the purpose of this that these claimants had a domicile in Great Britain, there is no authority whatever to sustain the position of that nation that it can in their behalf, in the conditions here presented, make reclamation against the u. s. tilt n interna- aimunent Spanish Opin. Answer to ie Umpire,No.1. )l*00f X ('reenl. Ev. *See p. 89, et seq. If 54 CLAIMANTS CITIZENS OF THE UNITED STATES. United States, which is still their country of political allegiance. The authorities are all the other way. Before proceeding to cite them, it is proposed to briefly analyze the authorities cited in the British argument, commencing at page 50. (a) The citation from Vattel is the perfectly well- settled general doctrine that a foreigner passing through or domiciled in a country shall be secure from injury; but, of course, the point is not discussed as to how far such foreigner will be protected as against his own country; neither is the principle referred to as to obeying the laws and respecting the sovereign claims of his own country. The opinions cited from the domestic body of temporary commissioners appointed by tbe United States to distribute the award for the Alabama claims are not usually held to be authoritative in any court. Their law of decision was statutory and wholly municipal. Many of those opinions are adverse to the British positions on many points, but we shall not cite them on our side, because they are not evidence of the rules of international law as held by any nation, not even the United States. But the quotation from Commissioner Rayner's decision is cited in the British argument, from the case of West v. United States, No. 91, where, after citing the general principle from Vattel (as cited in the opposing brief here), the commissioner goes on to state the application of the rule to foreigners resident in England, as there quoted; but it was not asserted in that opinion that the right of protection of the country of domicile against the country of political allegiance would extend to cases where the injuries to the domiciliated person had resulted from a direct violation of the laws and sovereignty of the country of original political allegiance. Indeed, the statement in that opinion, referring CLAIMANTS CITIZENS OF THE UNITED STATES. to the right of protection "as against the land of his nativity," referred only to the person, and then, as the next line states (not quoted in the British argument), "this protection inures only so long as he is within the pale of her jurisdiction." And again: * * * "But as long as he remains on the soil or the deck of a ship of the British Government he may rightfully claim protection." The commissioner cites Kent as to the conditions in time of war as to alien enemies and their right to protection, but as it was unnecessary to the decision the learned commissioner did not cite this qualification even as of a time of war from Kent (I Kent, 76): After stating that "domicile is the test of national character," he goes on to say that the limitation (in time of war) upon the principle of determining character from residence is that the domiciled person so far as regards his own country (i. e., the country of original allegiance) "must not take up arms against it." However, the statement quoted from Commissioner Rayner in the opposing brief was not essential to the decision, for when he came to that he held that British subjects, although legally domiciled in the United States, were not entitled to any part of the fund furnished by Great Britain for the indemnity of persons within the protection of the United States. The reasoning that follows, in the commissioner's opinion, and which is adverted to in the British argument, is ill considered and was not the true doctrine, as we shall see. (b) The second quotation (on page 51) is from the same opinion in the same case, and the last paragraph quoted is not reasoned in the light of the authorities on international law. It will be seen that in any case, under international law, before commissioners under any convention, that if a claim were presented in behalf of a British sub- 55 56 CLAIMANTS CITIZENS OF THE UNITED STATES. ject, unnaturalized in the United States but domiciled there, such claim resting on injuries sustained while violating the exterritorial laws and sovereignty of Great Britain, as well as in the case stated by Commissioner Rayner, where he assumes that the Alabama claims were allowed against that nation for neglect to execute her own laws, the same answer which he there puts in the mouth of that nation would be returned, viz: That is my affair. I am fully competent to to take care of my own subjects. But that Government would add also to the United States in a case like the present, were their positions reversed: The policy of international law will not permit you to make reclamation from me, or to protect my subjects for a violation of my laws that bind them, or for rebellious defiance of my sorvereign authority over a territory which I claim—and over which you do not claim—exclusive jurisdiction. (c) The Indian Chief. In that case the person had never lived in America after it became a nation (not after 1773). In addition, the decision was directly contrary to that stated in the text of the opposing argument, to wit: It was that the owner had lost the benefit of his native American character, if he ever had any, which he had not. This was not a case where the original citizen of one country, domiciled in another, was making a claim through the country of his domiciliation against the country of his original allegiance. 01) The case of The President was a claim made in behalf of an American citizen domiciled at the Cape of Good Hope, a colony of Holland, with which nation England was at war. The only comment we make is that this was not a case where an American citizen, unnaturalized abroad and owing original alle- CLAIMANTS CITIZENS OF THE UNITED STATES. giance to the United States, was making a claim against the country of his original allegiance. (e) In the case of the Matchless, a British subject was domiciled in Boston, and it is a case strongly in point for the United States before this Commission in the case of the claimant Cooper. It turned upon the law applicable to domicile for mercantile and trade purposes, and was for an alleged violation of the second section of the navigation laws of Great Britain, to wit: No alien shall exercise the trade or occupation of a factor in the plantations. The case is clearly not to the point cited. It is not a claim for indemnity for injuries suffered from violating the laws of England applying to British subjects, and is very far from an authority to the effect that the country of his domicile, the United States, could make reclamation against Great Britain for the injuries so suffered. (/) This is Drummond's case (2 Knapp) discussed supra. We repeat, if it were a case where France, because of Drummond's domicile, claimed the right to protect him and reclamation for him from Great Britain for injuries suffered while violating Great Britain's laws, and claim of jurisdiction, the case would be in point. But taking this case for illustration of the whole class offered, let us carry it a step further and it will be seen how misleading- it is to cite cases generally to a point which is not covered or approached in then* consideration or decision. Suppose instead of a treaty providing for reclamation by British subjects against France it had been a treaty providing for reclamation for injuries suffered by civil subjects of France in general against Great Britain, including domiciliated persons, in certain waters claimed by the British sovereign as jurisdic- bs 8 57 58 CLAIMANTS—CITIZENS OF THE UNITED STATES. tional at the time of the injuries; assume that acts of Parliament had been passed forbidding under penalties all persons from doing certain acts in those waters,* and that in pursuance of the law the sovereign authority of Great Britain committed the injuries complained of; and, finally, assume that the case before the court had been whether Drummond, though a British subject, because of his domicile in France could through France make reclamation from Great Britain for the loss of his vessels while violating the claim of jurisdiction and the penal laws of his own country. It is obvious that the decision must have been against the British subject, however long domiciled in France. (<7) The Countess of Conway's Case was a claim for compensation against France, under the same treaty as in Drummond's case (2 Knapp, 367). The Countess was not a British subject, nor domiciled there, and if she had been it did not appear that the claim was for injuries sustained by her while engaged in hostile acts against France (the country of her original allegiance), or in violating the laws of France applying to her. (/■) In Livingston v. Maryland Company (7 Cranch), decision bv Story, J., is strongly against the position of Great Britain in cases like that of Cooper. It is not a decision, however, bearing at all upon the question here. It was not a claim made * At one time Great Britain claimed as jurisdictional "the waters within lines drawn from headland to headland, as from Orfordness to the Foreland, and from BeacheyHead to Dunnose Point" (Hall, Int. Law, p. 162). "A recent decision of the Privy Council has affirmed her jnrisdiction over the Bay of Conception in Newfoundland, which penetrates forty miles into the land, and is fifteen miles in mean breadth." (Id.) In 1843 Great Britain claimed jurisdiction over the waters of the Bay of Fundy, which is from 65 to 75 miles wide, and 130 to 140 miles long, and under that claim Her Britannic Majesty's cruiser seized the schooner Washington, flying the American flag, for fishing in that hay. (See decision of British Umpire against Great Britain, Mixed Commission cases, nnder Convention of 1853, p. 170, infra, p. 108.) CLAIMANTS—CITIZENS OF THE UNITED STATES. 59 against Spain, the country of original allegiance, and was not a claim for injuries resulting from the consequences of acts hostile to that country, or for violation of her laws. (i) "The Venus." For the reasons just stated this case is not in point As to citizens of the United States, then, assuming that they were domiciled but not naturalized in Great Britain, what are their relations as claimants to the United States and Great Britain in respect of injuries suffered while sealing in Bering Sea, in the act of violating the laws of the United States in question, and in defying and attempting to elude the jurisdiction of the United States claimed by that Government in the waters where their property was taken in that act? It is to be observed that there is no question whatever as. to this proposition: That the provisions of the Revised Statutes of the United States, sections 1956, etc., were held by the courts of the United States, which as the Paris Award finds were courts "having- all the jurisdiction and powers of courts ofK5d™L£ s?~ admiralty," to be statutes applying to the place of /ward, seizure in the waters of Bering Sea, and that all the sovereign authorities of the United States asserted the jurisdiction to execute those statutes in those waters.* Findin£ | Moreover, that whether the United States had jurisdiction or not, those statutes by their construction in terms and by all the canons of statutory construction, had, as to United States citizens, an exterritorial effect; and furthermore, were penal statutes for the protection of a trade. In the argument submitted before the Paris Tribunal the counsel of Great Britain, at the head of whom * The assertion of sovereignty over territory, and in all cases of dispute as to jurisdiction contested by other nations rests with the Executive branch of the Government. See Whart. Dig., sec. 22 and cases. It If Mm W\W 60 CLAIMANTS—CITIZENS OF THE UNITED STATES. stood the present Lord Chief Justice of England, laid down this proposition: The only right of protection of fishing and other free- swimming animals in the high seas which can be exercised by any State (apart from convention) is as against its own nationals. It may be in the interest of commerce and the fishing industry of the nation that all its fishermen alike should be made to respect a close time, even for migratory fishes, and even in the deep sea. A State has a right to legislate for its own subjects on the high seas. (Vol. 10, TJ. S. Reprint, p. 36.) And again in the British counter case (Vol. VIII, p. 85): In connection with this branch of the subject, viz, the scope and effect of the legislation of other nations, it is essential to keep in mind the well-known rule of international law, that the laws of a nation affect none but its own subjects, and the subjects of other nations whose persons or property may be within its territorial jurisdiction. And it proceeds to quote, among other authorities, the work of Sir P. B. Maxwell as a standard aujhjf| itv on the interpretation of statutes. After stating that primarily the legislation of a country is territorial, and that the laws of a nation apply to all its subjects and all things within its territory, the citation proceeds: It is true this does not comprise the whole of the legitimate jurisdiction of a State, for it has a right to impose its legislation upon its subjects, natural or naturalized, in every part of the world, and indeed on such matters as personal status or capacity it is understood always to do so; but with that exception, in the absence of an intention clearly expressed or to be inferred either from its own language or from the object, or subject-matter, or history of the enactment, the presumption is that Parliament does not design its statutes to operate on them beyond the territorial limits of the United Kingdom. And at page 86, from the judgment of Dr. Lush- ington in the Zollverein, (Swab. R., p. 98): In endeavoring to put a construction on a statute, it must be borne in mind how far the power of the British Legislature CLAIMANTS CITIZENS OF THE UNITED STATES. 61 extends, for unless the words are so clear that a contrary construction can in no way be avoided, I must presume that the Legislature did not intend to go beyond this power. The laws of Great Britain affect her own subjects everywhere—foreigners only iclien within her own jurisdiction. And in the United States the rule of international law, always held, is that the municipal laws of a nation extend over all citizens and subjects evervwhere ou the earth. (The Apollon, 9 Wheat, 362; Hudson 1 Questier, 6 Cranch, 241, oA'erruling 4 Cranch, 241.) And throughout the argument on both sides before the Paris Tribunal, it is admitted that in so far as these statutes of the United States are concerned, thev are of an exterritorial character o.n their face, and the only contention was that, being municipal statutes, they, of course, could not bind foreigners. And see Wheaton's conclusion that every nation has jurisdiction over all citizens, wherever found. (Dana's Wheat, §§113, 115.) Now, until the joint resolution of Congress of the15^-^-6^- United States, in 1868,. declaring the right of expatriation, which was shortlv followed by the treaty between Great Britain and the United States of 1870, providing for naturalization, it was held bv both Great Britain and the United States that a citizen could not throw off his original allegiance. In the United States, the inclination of the judiciary has been to follow the rule of the English common law, and to hold that neither a native or naturalized citizen can throw off his allegiance without the consent of his State. (Kent's Com., 249; Story on Constitution, III, 3, Note 1; Wharton's State Trials, 654; Opinions of Attorneys-General, Vol. VIII, 157.) The doctrine of original allegiance remains the same in both countries in every respect except in the case of actual and formal naturalization. Lord Chief Justice Cockburn, in his "Nationality" (pages 214-215), after a full review of the whole subject, says: That "under a sound system of interna- JjJ/ CLAIMANTS—CITIZENS OF THE UNITED STATES. tional law such a thing as a double nationality should not be suffered to exist;" and that nothing short of actual naturalization carried out by solemn and formal act as the law of the particular country may require will have the effect to divest the subject of his former allegiance; "that renunciation of former allegiance or rights will not suffice to give the character of citizen or subject of the country of adoption, which can be acquired only by the act of naturalization itself; and that the effect of the naturalization is prospective only and has no retroactive operation." (And see Hall Int. Law, p. 240, as to the British doctrine.) It is laid down by Hall (p. 244) that until a new allegiance is contracted by naturalization, even since the naturalization laws, a citizen must be considered as bound by his allegiance to the government under which he was born, and subject to its laws. "Until these laws [naturalization laws] are satisfied, the State into which a person has immigrated can have no right of protecting 1dm." (Id., p. 255.) In the view of counsel for the United States, the statement just quoted from Hall is too broad, but the undoubted and universal rule is laid down in a summary of this exterritorial jurisdiction and sovereign right by Sir Sherston Baker's Halleck, Vol. I, 205: Offenses against the law of a State, regulating or prohibiting any particular trade, if committed by foreigners within the territorial jurisdiction of another State, are not punishable by the tribunals of the State whose laws they have violated; but if committed by its citizens, they are so punishable, no matter wliere committed, whether within its own limits, on the high seas, or in a foreign country. A distinction, however, must be made between mere commercial regulations permitting or prohibiting a certain trade, and statutes creating a criminal offense, with personal penalties expressly applicable to all the citizens of the State. The commercial domicile of a party may sometimes exempt him from the operation of the laws of trade of Ms own country, but while his former allegiance continues he is liable to CLAIMANTS CITIZENS OF THE UNITED STATES. 63 incur the penalties of a criminal offense against his own country, which penalties maybe enforced whenever he comes within the reach of its municipal laws.—(Citing: Foelix, Droit Int. Prive, sections 510-532; American Jurist, Vol. XXII, pp. 381-386; Masse, Droit Commercial, torn. II, sec. 38, 376, et seq.; Bello, Derecho Internacional, pt. I, Cap. IV, sees. 5, 6.) It need not be argued that the absolute rights of States, lying at the foundation of eveiything else, is the right of self-preservation (Dana's Wheaton, sec. 61), and it would be a vain right if a nation could not protect its public property against its own citizens wherever it and they may be. Of course such laws can not be enforced upon the person of a citizen if he be beyond the jurisdiction, but no one would deny the power of the government to seize upon his property for violation of such laws, if the property be found within the jurisdiction or upon the high seas. It is laid down in Lawrence's Wheaton (Elements of Int. Law, 6th ed., p. 175) that offenses against the law of a State, prohibiting or regulating a particular traffic, or regulating the laws of trade and navigation, are binding upon the citizens of a State- wherever they may be. In Bars' Private Int. Law (Gillespie Trans. Edinburgh, 2d ed., p. 135 and notes) the undoubted rule in this case is laid down: "The State of domicile may extend, protection to a domiciled foreigner as against otlier countries, except the country of original ALLEGIANCE." Judge E. Rockwood Hoar, of New England, former Attorney-General of the United States and one of the most, distinguished lawjTers of America, in the Barclay case, before the Mixed Commission of 1871, demonstrated that legal domicile in a country constituted citizenship of that country. In a learned and most careful argument, showing J> 64 CLAIMANTS—CITIZENS OF THE UNITED STATES. in its citations the most exhaustive research, he was compelled to admit that the conclusion of all the authorities on international law was that the nation of domicile could intervene for the protection of a person so domiciliated as against every nation except the nation of his ^original citizenship; that for certain purposes the local sovereignty could intervene and protect him even against that country, but never in derogation of the rights of the country of his birth as recognized by international law. (See argument of Judge Hoar on demurrer, Report of British Agent, Claims Commission of 1871, p. 280, and citations.) The British position in that case was of course strongly for the exception so stated by Judge Hoar, as appears by the reported arguments of Her Majesty's counsel in the last citation. In such case as stated by Kent (Lect. IV, sec. 25, p. 49): "The person so domiciled does not cease to be bound by the allegiance due to the country of his birth." It has been seen that in the Barclay Case the demurrer was decided adversely to the United States on two grounds only:* (1) The use of the term "British subject" in the convention, and (2) That it appeared affirmatively", as admitted by the demurrer, that Barclay had not violated the allegiance due fromJwm, to the country of his domicile. (Report of British Agent, Com. '71, p. 297.) In the Koszta case the United States asserted in the strongest possible terms the general doctrine of the allegiance of a domiciled person to the nation of his domicile. * A synopsis of the opinion of the commissioners will be found at page 13 of the American Agent's Report (vol. 6), papers relating to the treaty of Washington. CLAIMANTS—CITIZENS OF THE UNITED STATES. It is the doctrine which is so strongly asserted in the British argument here. But the British argument takes no notice of the exception, which we have discussed, more strongly and emphatically laid down by international authorities, when the question has come up for consideration, than the general rule stated. As has been seen, that exception was not in in any of the cases cited in the British argument here, and in them there were no facts bringing the question up for consideration. Koszta was a native-born citizen of Austria, and the right of the Government of the United States to protect him was asserted against Turkey—not Austria. What the position of the United States would have been as to Austria is stated as follows by the Secretary of State: Had Koszta been within the jurisdiction of Austria when he was seized, the whole character of the case would have been changed, and the forcible taking of him from the legal custody of Austrian officers could not have been defended on any principle of municipal or international law.* (2 Wharton's Int. Dig., p. 505, sec. 203.) Joseph Bums was a sailor on an American whale- ship, which was sunk by the Alabama. The whaler was American, because she was American owned, and sailed from New Bedford, Mas>. He therefore, for the purposes of protection by his nation, had all the rights of a domiciliated citizen, and something more, that of a sailor on a ship which was beyond question American territory, because American owned. (See Domicile authorities supra?) His claim was disallowed by the Geneva Arbitration on the British showing that he was apparently a * The point came up directly with Austria in Simon Tonsig's case, and the American Secretary of State, Mr. Marcy, who had sought to proteot Koszta in Turkey, declined to intervene to protect Tonsig, an original subject of Austria, and who had returned there temporarily. (See Hal- leek, 0. XXIX, 44.) Am. Ed. 65 B -9 66 NOT NATIONAL CLAIMS. British subject.* (See West v. United States, cited in the British argument at p. 50 as the Worth case, and papers relating to Treaty of Washington—"Claims.") It inevitably follows that Great Britain could not intervene for the protection of and reclamation for American citizens domiciled in Great Britain as against the United States in cases where their property had been taken by the authority of the sovereignty of the United States for violation of the municipal laws in question and for defiance of the sovereign claims of that nation. NOT NATIONAL CLAIMS. The British argument seeks to avoid this conclusion, both in the case of Cooper and in the case of the American citizens alleged to be domiciliated in Great Britain, on the ground that these are not private claims, but national claims, in the sense that they are to be recovered in the individual right, so to speak, of the Government of Great Britain: and it cites (p. 49) the case where China paid to the British Government $3,000,000 on account of debts due to British subjects from certain Chinese merchants. Hence, the contention is that no defense going to the national status of a claimant can be made. Of course, in the case stated there was no Claims Convention and no provision in the treaty, as in this, limiting the recover}* of the British Government to the case of '' persons " on whose account she might *An examination of the record discloses that Burns, the sailor, was deceased, and that his claim was presented by his father as his legal representative, who resided at Manchester, England; but before the Mixed Commission of 1871 it was held in such a case that the right to recover depended upon the national character of the deceased, and not upon that of his administrator. "The Commissioners are all of the opinion that the particular nationality of the administrator does not affect the question." (P. 18, cases 109-212-205.) I NOT NATIONAL CLAIMS. 67 be entitled to claim, and no provision for the auditing arid finding of "each" claim. The distinction between that case, as stated byB-.^%' pp- Blackburn, J., in the passage quoted at page 49, and ' this case is broadly drawn in the British argument itself, where it quotes from the Drummond case (2 Knapp) at page 53. That was a I laims Convention, and it is clearly shown in the passage quoted from the vice-chancellor that the recovery depends upon the personal relations and status ofthe claimant quoad the claim. It is true that these are national claims in the sense that they are presented against the United States by the nation because there is no other way to present them; and any Government owes it to those within its protection in respect of its obligations to its citizens to take up their cause as a nation, and this is the entire doctrine quoted from Wharton in the British brief at page 48. Of course it is the universal doctrine, to which there are no exceptions, that if a citizen of one nation complains of wrong done him by another nation, his Government must assume the responsibility of presenting the claim. A claim on behalf of foreign subjects of another Government under the established rales • of international law is not entitled to consideration unless a demand is made bv the Government of the country of which the claimant is a subject or citizen. (See United States v. Diekelman, 92 U. S., 520, and 2 Wharton's Dig, sec. 214 et seq.) This is the entire extent of Great Britain's interest in the claims. Under all claims conventions between nations throughout their historv, the Commissioners under them have been occupied for the most part in deciding for or against claimants on the question of their personal status; and this much space is devoted to that 68 VESSELS—NATIONALITY FOLLOWS OWNERSHIP. subject solely out of respect and deference to the learned counsel who are instructed to present the point at some length at various places in then* argument for Great Britain* "UNITED STATES OWNERSHIP," OR THE BEARING OP THE REGISTBY AND THE FLAG ON THIS CONTROVERSY. The caption "United States ownership" is taken from the opposing brief for convenience of treatment. It is not seen, however, how any question of national ownership can be involved, as would be the case if a public shiji were in question. It is not clear how the learning presented in the argument for Great Britain regarding the registry, the flag, the right of search, and so on, is relevant. Whatever of inviolability from and conclusiveness against inquiry there may have been, or whatever other question of national dignity may have been involved, it is submitted at the outset that all these considerations have been set aside by the provision of the convention itself, reserving to the United States (whatsoever the flag, the registry, or the dignity) the right to inquire into ownership, especially with reference to the defense resting on citizenship. The denial of liability on the part of the United States, it is clear, goes not only to the claim like that of Cooper, who for the purposes of this controversy was a citizen of the United States, but to the claims of the native-born or naturalized American citizens who are alleged to have been domiciled in Great Britain. It would seem to be the position of Great Britain that the award of the arbitrators at Paris, and the present convention, which was its direct issue and * See this argument pp. 82, 84, et. seq., and p. 127. VESSELS—NATIONALITY FOLLOWS OWNERSHIP. sequel, did a wholly vain thing in providing for the inquiry into citizenship of owners. It is said, true, the United States may raise the question of liability on ownership and show that the "actual" owners of the seized ships were in fact American citizens, and may fill the entire record and occupy the time of the Commission for months in adducing testimony upon that point, and Great Britain may occupy other months with counter testimony, but that after all is done, this is the utmost extent of the purpose of the provision; that immediately after the evidence shall be closed, and the record made, both sides are in the same position they were before, in this: That the registry, the flag, and so on are still a conclusive presumption on the question of ownership, i. e., that the showing of the British flag and the British register is conclusive evidence that the owners of a vessel are British subjects! Two Nations seemed to conceive, and through infinite pains of labor, in negotiation, in treaty, in arbitration, and again of negotiation, again of treaty, and again of arbitration, to have been in the way of producing something that might be called a result. Signs of the pains to this particular end run through all the history of a decade and a half. But after all, it is said nothing came of it, not even the ridioulus mus. Only vacuum, and no birth! Now the positions of the United States, on the other hand, are these: First. That the convention opened the door to the inquiry, leaving the question of citizenship to be determined on the testimony by the Commissioners as a matter of fact, and the question of liability on that determination of fact to be decided by the Commissioners as a matter of international law. This argument has discussed the questions of international law under this proposition in respect of 69 70 VESSELS—NATIONALITY FOLLOWS OWNERSHIP. British subjects domiciled in the United States, and American subjects alleged to be domiciled in Great Britain, on the assumption that it might be open to argument—which is now denied—after establishing citizenship of either character as a matter of fact, that there remained a juridical question as to liability under the treaty and convention or international law. Second. That by the Treaty of Washington of 1892, the award and finding of the tribunal under it, and this convention it was intended to be settled that no citizen of the United States could recover a claim on account of injuries as an owner and- holder in whole or in part of a vessel. Words of such significance as "by its citizens," in Article VIII of the treaty of 1892, could not even in a contract be set aside as having no meaning; and they certainly can not be eliminated from a solemn treaty between nations by a mere observation on the part of one of them that those words had not been intentionally used (opposing argument, p. 38, fol. 20), especially as the inquiry as to citizenship is reserved all through the award, the findings of fact, and this convention. It was clearly the intention of those who drafted the findings of fact to conclude this question 'in harmony with the provisions of Article \ 111 of the treaty of 1892. The present lord chief justice of England drafted those findings of fact. (See his statement to the president of the Court of Arbitration, 13 American Reprint, p. 55 and context.) At page 48 of the same colloquy, he made this statement to the arbitrators: The findings that the vessels, the names of which appear in the case, have been seized while exercising a legal right would not conclude the liability of the United States to pay if, for instance, it turned out that some of those vessels were owned by citizens of the United States and subject to the laws of the United States. VESSELS—NATIONALITY FOLLOWS OWNERSHIP. And again, at page 54, this appears: Mr. Justice Harlan (one of the arbitrators). What, then, is left for future negotiation? Sir Charles Russell. The question of amount. Mr. Justice Harlan. Only of amount? Sir Charles Russell. The question of amount, and a little more than amount; a question of amount, speaking of the matter in gross; a question of liability as regards items of that amount; as, for instance, the question of whether the claimants put forward are entitled to claim—whether they are United States citizens. Apart from the' conclusiveness of the treaty, award, findings, and convention, let it be tentatively considered as an open question of international law, and this will be considered under— 71 NATIONALITY FOLLOWS OWNERSHIP. Assuming that the question is still a juridical one, not concluded by the treaty, the positions of Great Britain are not tenable in any court administering international law. It is claimed 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. (Brit. Argument, p. 39, fol. 30.) And the same thing as to the register and the flag is stated in other places. The learning and industry bestowed on The Right of Search in the opposing brief is impressive, for the reason that the conclusion arrived at is not as indefinite and unsatisfactory on that much discussed subject as have been all other declarations of Great Britain. Up to the present time that Government has never disclaimed the right, or, as it is called in the argument, "permission to visit" a vessel flying the United States flag. The last official communication of the British Government to complete the correspondence there quoted 72 VESSELS—NATIONALITY FOLLOWS OWNERSHIP. on the subject is the letter of Lord Malmesbury of June 11, 1858, to Lord Napier (Brit, and For. State Papers, 1857-8, Vol. 50, p. 537), as follows: General Cass observes, in his note to Mr. Napier of April 10,1858, that " a merchant vessel upon the high seas is protected by her national character. He who forcibly enters her does so upon his own responsibility. Undoubtedly, if a vessel assumes a national character to which she is not entitled, and is sailing under false colors, she can not be protected by this assumption of a nationality to which she has no claim. "As the identity of a person must be determined by the officer bearing a process for his arrest and determined at the risk of such officer, so must the national identity of a vessel be determined at the like hazard to him who, doubting the flag she displays, searches her to ascertain her true character. "There no doubt may be circumstances which would go far to modify the complaints a nation would have a right to make for a violation of its sovereignty. If the boarding officer had just grounds of suspicion, and deported himself with propriety in the performance of his task, doing no injury, and peaceably returning when satisfied of his error, no nation would make such an act the subject of serious reclamation." Bier Majesty's Government [continues Lord Malmesbury] agree entirely in this view of the case, and the question, therefore, becomes one solely of discretion on the part ofthe boarding officer. So that, after all, it seems from the British position the question of right and wrong and damages would be one for judicial inquiry in the end. But the discussion of the right of search is, by the way, and in the present connection, only academic. The question here is as to the right of American authority to take an American-owned ship, whatever her registry. The United States must decline to accept as international law on the subject the municipal instructions of Great Britain to registrars of shipping, as quoted on page 43, folio 40, of the ojsposing argument. The rule of international law as to the effect of registry among nations has been stated by Great Britain I 1» VESSELS—NATIONALITY FOLLOWS OWNERSHIP. before a court of nations, as follows (Geneva Arbitration; "British Case and Evidence," Vol. I, p. 79): The effect of registry is to entitle the ship to use the British flag and assume the British national character. The conditions necessary for obtaining registry, in the case of a ship 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 prescribed form) that the ship is British owned. It is not the duty of the registrar to question or ascertain the accuracy of either the builder's certificate or the declaration of ownership. As a ministerial officer, he is bound to accept them if tendered to him. For false statements in the certificate the builder is liable to a penalty, and for making a willfully false declaration the owner is liable to be indicted for a misdemeanor and to forfeit his interest in the ship. In Great Britain, as in the United States, the law does not positively require the registration of any vessel. But the disadvantages and disabilities incurred by omitting to procure it are practically sufficient to make the registration of British-owned ships universal. The register, though in ordinary questions arising under municipal LAW evidence of the title of the person registered as owner, is not conclusive in a question arising between other parties, nor is it necessarily sufficient proof OF THE NATIONAL CHARACTER OF THE SHIP. A transfer to a foreigner, at sea, or beyond seas, of a registered British ship, is sufficient to change its ownership and the nationality of the vessel, though not followed by any registry. The law of registry is a part of the law by which British trade and navigation are regulated for fiscal and other purposes; and a ship is registered as British on the voluntary declaration of the person claiming to be owner without FURTHER proof. Chief Justice Mansfield (in Cheminant v. Pierson, 4 Taunt, 357) said: The register is not a document required by the law of nations as expressive of the ship's national character. Smith's Mercantile Law (pp. 143—4): No ship is required to be registered, registry oidy being necessary to confer privileges on that particular ship. B S 10 73 /T 74 VESSELS—NATIONALITY FOLLOWS OWNERSHIP. Parsons's Maritime Law (Vol. I, p. 39): The law is unwilling to recognize in the fact of registration any other efficiency than that of imparting certain privileges, or to permit the absence of that registration to have any other effect than merely to prevent those privileges from attaching to the ship. Kent (Vol. Ill, p. 146): The registry is not a document required by the law of nations. The registry acts are to be considered as forms of local or municipal institutions for purposes of public policy. But the leading American.case is by Justice Story, in 15 Pet, 518—543, and is conclusive. (See Analysis, infra, p. 78.) The Attorney-General of the United States (6th Attorney-Generals' Opinions, 649): The statutes do not require a vessel to be registered and enrolled; and if owned by a citizen of the United States she is American property, and possessed of all the general rights of the property of an American. I And at page 652 he speaks of the right of an American citizen to purchase and own a foreign ship, and says: The ship so purchased becomes entitled to bear the flag and receive the protection of the United States. And see Whart Dig. (sec. 410, p. 993), for a full review of the question by the author sustaining the position taken here on this question. Henry, the author of Admiralty Jurisdiction and Procedure, in a carefully prepared letter printed in 3 Whart. Dig., sec. 410, sums up the international question in these words—as to the vessel's character: The question as to the disabilities which the municipal rules of the Government of the owners might impose on such vessels did not concern other nations nor affect their nationality. So far as the international side of the question is concerned, the position of such vessels is fixed. Although the right of 1 VESSELS—NATIONALITY FOLLOWS OWNERSHIP. such vessels to carry the flag of the United States has been discussed in two late papers, there could hardly be occasion for such a question. A vessel's flag is only its signal to other vessels at sea. The national bunting displayed is a communication to other vessels of the nationality of her owner, as her other signals are used to convey the name of the private owner, or of the line to which the vessel belongs. The word " flag," when used either in public or private international law, in maritime subjects, designates the nationality of the vessel, arising from ownership. A vessel as a subject of nationality is not considered a personality any more than any other chattel, and can not have any other nationality impressed on it except that arising from ownership. In Barker v. Phoenix Insurance Company (8 Johns. R., 307), Kent, C. J., held that the words "American vessel" as a warranty of national character is fulfilled by a vessel wholly owned by American citizens, although not registered as a vessel of the United States. And in the United States from Story to the present bench of the Supreme Court there has been no departure from the principle that nationality follows private ownership—not ownership nationality. See United States v. Rogers, 150 U. S., pp. 249—260—3, where Mr. Justice Field, in delivering the judgment of the court, says of ships on the high seas: "Constructively they constitute a portion of the territory of the nation to which their owners belong." "The admiralty jurisdiction of the country of the owners of the steamer, they being citizens of the United States, is not denied, and the steamer being in navigable waters * * * we hold these waters to be high seas." Courts of admiralty administer international law, and it is a common thing for those courts to entertain disputes as to the ownership of vessels, and other litigations as to them, although such vessels are owned 1 6 76 VESSELS NATIONALITY FOLLOWS OWNERSHIP. by foreigners, and showing as documented and registered as foreign ships; and the judgment of those courts or the title passing by condemnation, is conclusive everywhere. In the case cited in the British argument (JRisoluto, p. 31, fol. 50), the suit was a collision case in the British Admiralty, and wholly between French and Italian owners. In the case of the Experiment (2 Dod., 38), Sir William Scott held the question of ownership of a Spanish documented ship, documented as Spanish owned, could be settled in the British court. In United States v. Brune (2 Wall., Jr., 264) it was held "that the registry was not even prima facie evidence of the ownership." Sir Sherston Baker's Halleck (Vol. I, p. 438): The national character of merchant ships is, " as a general rule, determined by that of their owners." And Dr. Phillimore, in his Int. Law (Vol. Ill, sec. CCCCLXXXV), says: Ships are deemed to belong to the country under whose flag and pass they navigate; and this circumstance is conclusive upon their character. * * * When, however, it is said that the flag and pass are conclusive on the character of the ship, the meaning is this: That the party ivho takes the benefit of them is himself bound by them; he is not at liberty, when they happen to operate to his disadvantage, to turn round and deny the character which he has worn for his own benefit and upon the credit of his own oath or solemn declarations; but they do not bind other parties as against him. Other parties are at liberty to show that these are spurious credentials, assumed for the purpose of disguising the real character of the vessel; and it is no incontestable part of the ordinary occupation of a prize court to pull off this mask and exhibit the vessel so disguised in her true character of an enemy's vessel. Again, agreeing with Halleck, Phillimore says: But, in general, and unless in special circumstances, the national character of ships depends upon the residence of the owner. VESSELS—NATIONALITY FOLLOWS OWNERSHIP. It is only ships and cargoes engaged in the privileged and peculiar trade of a nation, under a special contract and the sanction of the government, that are considered as affected by the character of the nation. Can there be any doubt that an American ship may be sold to a British subject, or a British ship be sold to an American citizen, in any part of the world, without registration, or any doubt that in such a case the nationality of the purchaser would give to the ship his character and the protection of his national flag. The opposing argument quotes the message of President Grant, in 1873, in the case of the Virginius. President Grant does not make the statement contended for in the argument, but says, as there quoted: 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, etc. On pursuing the history of the Virginius ease, as given in 3 Wharton's Int. Dig., it appears that on the prima facie case presented, the Virginius was the property of a citizen of the United States, who was the true and only owner of the vessel. But it having appeared that the Virginius was not owned in fact by citizens of the United States, the apology from Spain and the salute to the flag of the United States were dispensed with, as it was conceded by the United States that Spain had a right to adduce proof to show that the Viryiuiuswas, not rightfully carrying the flag of the United States. But the Virginius and similar cases involving the dignity of the nation have no bearing whatever upon claims preferred under a claims convention in an international court, when their rectitude depends, as under all claims conventions, upon the political or civil status of the claimant. 77 78 VESSELS NATIONALITY FOLLOWS OWNERSNIP. Mr. Bayard correctly stated the law regarding* nationality in the passage from his letter quoted on page 42, folio 30, of the British argument: By the law of nations * * * the citizens or subjects of a particular country, who are the 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 of nationality. Even Hall says that the flag is only the apparent sign of the nationality of a ship, if a ship of private ownership. Its master is not an agent of the State, as in the case of a public vessel. In The Sisters (5 C. Rob., 155; see 3 Kent, 130) Lord Stowell said: A bill of sale is the proper title to which the maritime courts of all countries would look. It is the universal instrument of the transfer of ships in the usage of all maritime countries. The flag, then, the outward symbol of ownership, should properly correspond with the bill of sale. (11 Atty. Genl. Op., 72, 1866.) And, finally, we have on the question Judge Story, an authority on international law, received by British publicists and jurists, as'well as by the entire world, as in the front rank, where there are but two—the great Lord Stowell and Story. We have him, too, on this question, not as a text writer, but from the bench of the Supreme Court of the United States, delivering the judgment of that court as to the law in such case in time of peace. (See 15 Peters, pp. 518-543 supra; U. S. v. Armisted.) This was the case of a Spanish registered and documented ship. Not only was she documented as a Spanish ship and as Spanish owned, but, by treaty between the nations, certain privileges were guaranteed ships of either nation so documented. VESSELS—NATIONALITY FOLLOWS OWNERSHIP. 79 It was held that the registry and documents—the ship's papers—were but prima facie evidence of Spanish ownership, and the language of the court was that if a vessel under those circumstances "should in reality belong to the subjects of another nation not entitled to any such privileges, and the proprietors were endeavoring by fraud to cover their own illegal acts under the flag of Spain, there can be no doubt that it would be the duty of our courts to strip off the disguise." This was in time of peace, and Mr. Justice Story comments upon that, and says that the above is the rule in time of peace. The authorities submitted on this subject (at pp. 44—45) of the British argument are not in point, and are reviewed as follows: (a) 16 Peters, 215—Hosey v. Buchanan. This was a domestic litigation between a judgment creditor and another, and involved the question of whether the registry of a transfer of a ship under a Federal statute was a prerequisite to a change of ownership as against creditors. The decision was that it was not, and the court proceeded to say that registry as contemplated by the Federal law was only for the purpose of conferring certain privileges on a ship as a national ship. (b) 16 Wall., 610, Crapo v. Kelley. This was also a domestic suit, involving a conflict between a bankruptcy assiguee and an attaching creditor. The bankruptcy assignee was appointed in Massachusetts, and the creditor attached the ship in New York. It was held "for the purposes of the suit" that the ship was a portion of the territory of Massachusetts, and the bankruptcy assignment passed the title as against the attachment. Nothing else was decided. (c) Catlett v. The Pacific Company (I Paine's C. C... 594). Jm 80 VESSELS NATIONALITY FOLLOWS OWNERSHIP. It appears distinctly from the decision of the court, hi the opinion printed, that there the question was whether the implied warranty in a policy of insurance that the ship was an American vessel had been complied with. It appeared, as stated, that she was (1) "Owned by American citizens-" and (2) It was "conceded" that if she also had an American register on board, it would have been a compliance with the warranty. The essential thing disputed, evidently, was the question of American ownership, and the effect of registry was not in issue. If this case is supposed to decide that an American registry is conclusive of ownership, it may be said in passing that the case was cited as shedding some light on the subject (and to that extent probably it is here) in the United States Supreme Court on the argument in 15 Peters, 518, supra, where the contention there arid here was distinctly overruled. (d) The texts quoted from in all of folio 50 (pp. 44-45), British argument, do not appear to be cited, but it is assumed that they refer to the Virginius case already discussed in this argument. (e) Direct issue is taken with the British argument (p. 45) in the position that the same principle of conclusiveness applies to the registry of a ship as to naturalization papers, and if the quotation from Wharton (2 Whart. Dig, 354)—from which the fragment from the communication of Mr. Evarts is taken—had been continued, it would have been seen that the inviolability of naturalization papers was put upon entirely different ground. That ground was this: That naturalization was a aecree or judgment issued by a competent court of the United States, and that therefore the executive department of the Government could not for itself, or through any authority to an international commission I 1 VESSELS—NATIONALITY FOLLOWS OWNERSHIP. 81 behind the judgment of authorize an inquiry going1 such a court. It is not within the power of the Secretary of State to vacate a decree of naturalization issued by a competent court of the United States. * * * The judgment of a court granting to an individual the rights Of citizenship is entitled to receive the respect given to all other judgments rendered by courts of competent jurisdiction, and if not impeachable for fraud, is conclusive as to all the facts necessarily passed upon. (The Secretary of State to Mr. Hamlin, 2 Whart. Dig., p. 355.) This doctrine is familiar in the United States from the leading case in the Supreme Court—" Sprattfs Case." This is quite a different principle from that which would be applied to the registry of a ship, with which no judicial or quasi-judicial authority has anything to do. The executive position of the United States as to what is a test of nationality is stated in 6 Attorney- General's Opinions at pages 649-652, and there it is found in agreement with the Judiciary of the United States that the test of nationality is private ownership. It follows on British and American authority alike, that ownership, and bona fide ownership, and not registry, confers the right to carry the flag.* The position of the United States here, as always, may again be repeated. That nation asserts without qualification, and with emphasis, that where the flag floats over a ship in time of peace, any other nation invades the deck under it at its peril. * The British argument confuses registry withtlship's papers/' embracing and especially meaning the "sea letter" or " Ship's pass," issued by the sovereign authority only after ollicial investigation as to actual ownership. B S- -11 82 NOT THE NATION'S CLAIMS. The flag and not the registry should be prima facie evidence of ownership. If it should turn out, however, that the flag does not truly represent the actual ownership, there is no ground for reclamation on behalf of the owners who turn out to be actual citizens or subjects of the nation so invading the ship. Whatever there may be of affront to the flag in such a case is wholly a question between nations, with which private persons have nothing to do and for which they can make no profit. To do so would be to elevate the incidental inferior private interest into the place of the paramount public one. To do so in cases where satisfaction for offended dignity is due would be to demand for one individual the reparation owing to all the people of a great nation. Take the case of the British ship Trent, where an American cruiser took from under the Briti-h flag the American citizens Mason and Slidell. This being an act of a public ship of the United States, that country was, of course, responsible for it. The proceeding was variously designated as "wanton," as a "wanton insult," "piratical attack,"* and so on. An apology was demanded by Great Britain and a return of Mason and Slidell to the protection of the British flag. But the suggestion was never dreamed of that Mason and Slidell could have had any claim through Great Britain or otherwise for damages, for their imprisonment and treatment, from the United States. The case of The Caroline.^ The vessel was an American ship Tinder the American flag and in American waters. Great Britain sent her military force under McLeod into the territory of the United States and destroyed the ship. I See Brit. For. State Papers, " Trent." tSee full history of the case (1 Sir Sherston Baker's Halleck, p. 477, and Wharton's Dig., $ $ 21, 350). NOT THE NATION S CLAIMS. 83 Great Britain acknowledged her responsibility for the acts of McLeod, and the United States demanded satisfaction for the affront to the flag and the invasion of territory. Great Britain asserted the right to enter the territory on the ground of self-preservation, adducing evidence of an insurrection, and that The Caroline was aiding it. The matter was satisfactorily adjusted between the Governments. In the meantime, however, McLeod, the British subject, had been arrested on American soil and suffered a long term of imprisonment "under the authority of the State of New York. Both Governments—the United States and Great Britain—asserted that imprisonment to have been unlawful, as the act of McLeod had been assumed by Great Britain as her act. Subsequently, under the Mixed Commission of 1853,* Great Britain made reclamation for McLeod for damages. It was held by the British umpire that it could not be brought before the commissioners as a private claim, because it grew out of a purely national question •which bad been adjusted between the two countries. The case will serve for further illustration on the questions before these High Commissioners as to the claimants of original American allegiance domiciled on British soil. Aside from the adjustment of the question of national affront, suppose that a British subject domiciled in the United States, and unnaturalized there, while in the act of aiding the insurrection against Great Britain, had been damaged in his person or property rights by McLeod's invasion. Could it be seriously contended that he could have successfully made reclamation through the United States against Great Britain for his injuries suffered while acting in violation of his original allegiance to Great Britain? * See Report of Agent of the United States, 314. jsRf 84 NOT THE NATION'S CLAIMS. Or suppose The Carolina had, as a matter of fact, turned out to be the property of such British subject legally domiciled in the United States, or of an American citizen legally domiciled in Great Britain. Could either have made reclamation against Great Britain through the United States! On the distinction between questions of the kind arising between nations in respect of the inviolability of national territory and the emblem of the national dignity, and those in resriect of the claims of individual citizens presented by one nation for personal or property injuries against another, it is broadly and well drawn by counsel in the case of McHugh and others against The United States, before the Mixed Commission under the Treaty of Washington (report of British agent, p. 567, Appendix No. 7, 52*), as follows: The question before this Commission is not whether Great Britain has suffered grievance or insult at the hands of the United States in the case in which reclamation is sought. If it were so, it would be entirely immaterial whether the intestate, Sherman, were a British subject or no, he having been arrested on British soil. The injury to Great Britain was by the unlawful invasion of her territory and the taking thence by force of a person under the protection of her laws. Whether that person was an American citizen or British subject is of no importance. She has the same right of complaint against the United States for the unlawful and wrongful arrest of an American citizen upon her soil, and his removal by force from the protection of her laws, as she would have for the same treatment of a British subject. But it surely can not be contended that, by reason of such injury to the sovereignty of Great Britain, Sherman, if in fact an American citizen, would have a standing before this tribunal to make reclamation under the treaty. He would have to stand upon his character as a British subject and upon that only; and it would be only by virtue of such national character that he could make reclamation here. This particular claim, as appears by the report, i. e., * Paliamentary Papers, North America, No. 2, 1874. NOT THE NATIONS CLAIMS. 85 that of Mrs. Sherman, was unanimously disallowed by the Commissioners. The very point was elaborately stated and decided by Baron Blanc, the umpire, in claims 94 and 95, Campbell and others v. Spain, under the Spanish and American Commission of February 12, 1871. The ship Mary Lowell was under the American flag and on the high seas, duly documented as an American ship. The umpire finds distinctly that the violation of the flag was an offense against the sovereignty of the United States. The claim was presented by the United States, as claims are presented here, as one on account of the owner. The umpire says: The umpire can not be legitimately called upon to treat this as a case of the United States against Spain having for its direct object a suitable reparation for the offended dignity of their flag. In such a case the regularity.of the capture would constitute the principal question to be considered—the personal situation of the owners of the property becoming subordinate. But no such case of the United States against Spain has been or could, in the opinion of the umpire, properly be presented to this tribunal. At another place he says that it is— Irrelevant under the circumstances of this case to state how far, if at all, the acts of the Spanish forces were unauthorized by international law, and such as to create a claim on t*he part of the United States against Spain in behalf of the offended sovereignty of their flag. The claim was therefore dismissed on the ground that although the seizure was outside of the jurisdiction of Spain, and on the high seas, yet, as it transpired that the owners were engaged in an enterprise unlawful as against Spain, the United States could not recover on their account under the Claims Convention. 86 CONCLUSION ON EFFECT OF DOMICILE AND CITIZENSHIP. CONCLUSION ON THE QUESTION OP AMERICAN CITIZENSHIP AND OWNERSHIP. The specific claims eliminated. The Cooper claims: The Grace, Dolphin, Anna Beck, and the Sayward. The Alexander Frank claims: The Alfred Adams, : Black Diamond, seized July 11, 1889, and the Lily. The Andrew J. Bechtel claims: The Carolena and Pathfinder. The Daniel McLean claim: (The larger) Triumph. The Alexander McLean claims: The Onward and Favourite. The foregoing ships were all seized in the years 1886, 1887, and 1889, and appear as follows in the schedule of British claims filed at Paris (pp. 1 to 60, inclusive), as referred to this Commission under the convention as owned and claimed for as follows: The Cooper claims: As to the Grace, Dolphin, Anna Beck, and Sayward, the entire ownership and entire claim for compensation for the seizure are in Thomas H. Cooper. The Alexander Frank claims: As to the Alfred Adams, Gutman, owner, his partner, the said Frank, being equally interested with Gutman in the results of the sealing voyage. As to the Black Diamond, "registered" owner Morris Moss. As to the Lily, "registered " owner Moras Moss.* The Andrew J. Bechtel claims: As to the Carolena, the entire ownership in Munsie. As to the Pathfinder, ownership half in the partnership, and a quarter each in the individual members of the firm of Came & Munsie. The Daniel'McLean claim: As to the larger Triumph, 21 shares in Edgar Crowe Baker; 22 si lares m Daniel McLean, and 21 shares in one Gibson and Blackett. CONCLUSION ON EFFECT OF DOMICILE AND CITIZENSHIP. 87 The Alexander McLean claims: As to the Onward, Charles Spring as sole owner and claimant. As to the Favourite, Charles Spring as sole owner and claimant. It appears by the testimony cited in this record that the United States, under the right reserved to them by the Paris Award and this Convention, in contradiction of the above schedule as presented at Pails, have shown actual ownership in American citizens, as of the time of seizure, and the actual claimants at the time of the Convention, as follows: The Alfred Adams, Lily, and the Black Diamond in Alexander Frank, an American citizen. The Carolena and Pathfinder in whole or in part in A. J. Bechtel, an American citizen. The Triumph, 22 shares out of 64 in all in Daniel McLean, claimed to be a political and civil citizen of the United States, and in any case a civil citizen domiciled in the United States. • The Onward and the Favourite one-half in Alexander McLean, an American citizen domiciled in the United States. It may be stated in this connection as the rale in such cases, to which there have been no exceptions under prior commissions, and as a proposition which carries its own demonstration, that to entitle that nation to make reclamation for anyone as a person "in whose behalf Great Britain is entitled to claim compensation from the United States," the burden is upon that nation to establish at the very outset two things: First, and before all else, that at the time ofthe Convention and of the presentation of the claim the claimant was under the protection of Great Britain as a citizen, with a legal domicile in the dominions of that nation or not in the United States; r 88 CONCLUSION ON EFFECT OF DOMICILE AND CITIZENSHIP. And second, it must also be established that at the time of the injury of which complaint is made the person was under the protection of Great Britain as a citizen, and domiciled within her dominions, or not in the United States, or, as the equivalent of domicile and citizenship, was on board a ship, as one of the officers or crew, owned by a British subject in British territory or on the high seas. Both conditions must concur. It need not be argued that a person who may have been injured by a nation can not afterwards become naturalized or domiciled in that nation, and thus become a political or civil citizen, or both, and thereafter invoke the aid of the country of his original citizenship against the nation of his existing citizenship. And so the Convention provides, Article I, that the persons for whom reclamation may be made by Great Britain must be persons who then, at the time of the convention (and as held in other Commissions, at the time of the presentation of the claim), were under the protection of Great Britain in virtue of a claim of either civil or political citizenship, as above defined. Here, again, the incongruity, not to say absurdity, of Great Britain's position as to Cooper is manifest. A resident and a civil citizen of the United States since 1854, with the courts open to him as to an American native-born citizen, enjoying the protection of its laws, without returning to his country of original citizenship to present tbis claim, he remains a citizen of the United States, and instead of appealing for relief for his alleged wrongs to that Government, or its courts, he invokes a foreign nation to aid him in recovering from the United States. The rule is undoubted and universally acknowledged that the recourse of a domiciled person for injuries against the Government of his domicile is in CONCLUSION ON EFFECT OF DOMICILE AND CITIZENSHIP. the courts of that country. The principle is stated in Wharton as applied in our relations with Great Britain: A citizen of the United States residing in Canada, whose property there situate has been destroyed and pillaged by British troops, must first seek redress from the tribunals of the country under whose laws- he has settled. (2 Whart. Dig., sec. 241, and see sec. 226.) Ken worthy's Case, Mixed Commission, 1853; Hally et al. Commission, 1871; see 6 Papers,- etc., Washington, pp. 19-20; Anderson's Case, id.; Boyd's Case, British Agent's Report, p. 12. ' As heretofore seen in such cases, there can be no ground for intervention by the country of original allegiance unless there be discrimination as against the person because of his political nationality as between lrim and citizens of the country of his domicile. It appears by the authorities hereinbefore cited on the subject of domicile that the presumption is that a citizen of a country has his residence and legal domicile in the country of his political citizenship, and that the burden to establish domicile in any other country is upou the person alleging it. The burden may be at once shifted by showing actual residence, as has been seen, but if. there be anything in the point made in the* opposing argument as to Frank, the McLeans, and Bechtel on their alleged domicile in Great Britain against the contention of the United States to the contrary as heretofore presented, then the burden would certainly be upon Great Britain to establish the fact of domicile conclusively. On the record there is no pretense of the proof of Frank's domicile in, Victoria. There is no such thing as a domicile for purposes of trade without residence.' Residence and home is the supreme test of domicile. (Halleck, Ch XXIX, sec. 13~(Am. Ed.),.and cases. Pliillimore-Domicile, sees. 221, 224, 256, 258.) bs 12 89 J 90 CONCLUSION ON EFFECT OF DOMICILE AND CITIZENSHIP. It appears that he was a partner of Gutman, but there is no proof whatever that he was a resident of Victoria, as he was not. (Record, 1993, line 50.) Q. In November, 1888, were you a resident of Victoria? A. I believe I was; am not quite positive about the time. I went to San Francisco either the latter part of 1888 or early part of 1889, and I stayed there several months. This is all there is bearing on residence. Appended hereto, (page —) entitled "Appendix 2," is presented all the testimony in the record, and every item of it bearing upon the citizenship or residence ■ of Alexander Frank, Andrew J. Bechtel,'Daniel McLean, Alexander McLean, and Thomas H. Cooper. As to Bechtel, there is no conclusion upon his testimony, because he contradicts himself directly by his several oaths, and is shown hereafter under the head, " Carolena," to be unworthy of credit. Falsus in Uno, falsus in omnibus. His hotel business is no evidence of domicile. See authorities supra prox. In an affidavit he has sworn that he was at one time a resident of California, and afterwards, in an affidavit, as in his testimony here, covering the period of his affidavit in California, he swears thathe was a resident of Victoria. His affidavit to the contrary in Victoria is not evidence for him, and his admission of residence in California is evidence here. From the witness box at Victoria, through- b6pen<iix 2.P"ou^ his examination, he was dumb on the question of his residence in California; while Munsie testifies to the time when Bechtel was living in California, in corroboration of the admission by affidavit. His ownership of real estate is no evidence of domicile. (Sir W. Scott in The Dree Gebroeders, 4 Rob., p. 235.) There is no evidence that either Frank or Bechtel were domiciled in Great Britain at the time of the Convention. Daniel McLean, as appears by the record, became a naturalized citizen of the United States on October 5,1882, and he became such under the Naturalization Treaty between Great Britain and the United States of 1870. CONCLUSION ON EFFECT OF DOMICILE AND CITIZENSHIP. 91 ,689. He could not surrender that citizenship and return to his allegiance to Great Britain except as provided in that treaty, and his form of becoming naturalized in Great Britain on October 16, 1886, was ineffective. There is not a word as to his residence in Victoria in the record, but there is a statement of his residence in San Francisco in 1892, and the testimony of Luby that Daniel McLean appeared at Victoria3 in 1883 as one of the crew of the American vessel the City of San Diego. See app- 2- As to Alexander McLean's American citizenship there is no question; and while the testimony as to him is the strongest in the record as to any residence in Victoria at the time of the seizure of the ships he was interested in, there is no question whatever that for a long time prior to the Convention, at its date, and ever since he has had his domicile in the city of San Francisco. Od the question of burden of proof to establish the relation to a person which would enable Great Britain to make reclamation, it is settled by the decisions under all the Commissions heretofore referred to.* It follows, that if Great Britain shall shift from the ground heretofore taken, that ownership in that nation's political subjects is concluded by showing a ship's register, and now claim the right to protect American citizens as against their own country because of their domicile (a proposition never heard of before except in the argument here), the change should start from the postulate as to them, that their domicile by residence has been conclusively shown, both at the time of the seizure, and at the time of the treaty and presentation of the claims. The question remains as to the effect of part ownership by an American citizen with a British subject. * See argument—citation of Sir Roundell Palmer, papers, etc. Treaty of Washington, vol. 3, p. 25, last paragraph cited. J 92 CONCLUSION ON EFFECT OF DOMICILE AND CITIZENSHIP. If joint owners or partners, the whole claim must fail beyond question. A recovery can not in such case be had for a moiety by the rules of international or common law. The right to the protection of this Government may be acquired by birth,.by naturalization, or in some cases and for some purposes by domicile in the United States. Mb other mode occurs to me, nor do I now perceive the authority of an officer of this Government, except in virtue of a treaty Mr.Fish Sec.or other positive legislation, to bring a new subject within of State, the sphere of its obligations. Least of all can I discern any t° MlM<?i6 faculty in a private citizen to spread the protection of his Inst Ja- Government over a third person by adopting, him' as a part- pan, nfcr in a commercial establishment in foreign parts. Whatever the rule, however, on this subject, the United States desires to urge it only as against those persons who have suffered their names to be used by American citizens, or have permitted the investments of American citizens, with them jointly, having the object in view to aid such citizens to violate the laws of their country under cover of such arrangements, and have befouled their consciences in the effort to sustain the frauds. This objection is not urged by the United States as against the owners of the Triumph, in respect of the shares in the former held by Mr. Baker and his associates, who were British subjects, and in respect of the interest in the Onward owned by Mr. Spring, who was also a British subject. If it shotdd seem to the Commissioners that there is anything of compensation to be found due on account of the Favourite on the claim as finally testified to by her owners at Victoria, Mr. Spring's interest should be treated like that in the Onward. In such cases, however, the question of jurisdiction remains for the Commissioners to decide, as it can not be waived by the counsel for the United States. DAMAGES—PROSPECTIVE CATCH. COMPENSATION, OR THE MEASURE OF DAMAGES. Under this head it is proposed first to consider the question of Prospective catch and loss of catch.* The theory of all law on the subject of the loss of personal property, is, that the party deprived of it or abandoning it to the converter may immediately supply its place in the market with its money value if he sees fit; and therefore his measure of recovery is limited to the value of the property lost. The following propositions are maintained under the present convention: (One.) The claim for prospective catch is settled adversely to Great Britain by what has been seen is conventional or positive international law, fixed and binding on both nations, viz., a decision of the precise question on analogous facts by the adjudication of the Tribunal of Arbitration at Geneva. The claim for prospective catch, prospective profits, and the like, in cases of marine torts or captures on the high seas, however tortious, has never been allowed by any tribunal or court administering international law, or by any authoritative judicial judgment of either country, whether administering international or the municipal common law. And of these in their order. * See the contingencies and uncertainties of pelagic sealing, p. 177, infra. 93 94 DAMAGES—PROSPECTIVE CATCH. (ONE.) The judgment at Geneva. By the treaty of Washington, Article VI, it was provided as follows: In deciding the matters submitted to the arbitrators, they shall be governed by the following three rules, which are agreed upon by the high contracting parties as rules to be taken as applicable to the case, and by such principles of international law not inconsistent therewith as the arbitrators shall determine to have been applicable to the case. Then follow the three rules as to duties of neutrals in time of war; and the article closes with this provision: And the high contracting parties agree to observe these rules as between themselves in future, and to bring them to the knowledge of other maritime powers and to invite them to accede to them. • It is apparent that, as to the rule of damages, the arbitrators were bound by the principles of international law, and that their decision upon that question must be held to be the international law as between these nations, according to the authorities cited in this argument at page 20, supra et seq. That rale is binding under this Convention unless—(a) the position taken in the British argument (p. 25, fol. 20) be correct, that the Tribunal did not really decide against the principle of prospective profits; or (b) there is something in the facts here that distinguishes the principle to be applied; or (c) a distinction is to be made, as claimed in the British argument, on the ground that the torts in that case were not directly committed by Great Britain with her own cruisers. ■ A somewhat remarkable statement.is found in the British argument (p. 25, fol. 20), as follows: A reference to the proceedings before the Geneva Arbitration will show that as a matter of fact,, although this general DAMAGES—PROSPECTIVE CATCH. proposition was laid down in the award, a sum in lieu of prospective profits was allowed, to the Government. By reference to protocol No. 29 it will appear that the award was finally made upon the basis of allowing a sum equal to 25 per cent of the value of the vessel and outfit in lieu of prospective catch, this sum amounting in that case to $988,000. This is a striking error. After a very full and most exhaustive discussion of the question of prospective catch, and after both sides had rested the entire argument, on August 19, 1872— but ten days before the first formal ruling against prospective profits—the arbitrators requested the counsel for the United States to present tables of the claims of the United States, and then in those tables, as stated, "In accordance with the suggestions of some of the arbitrators (the counsel say), we have eliminated from the tables the claims submitted in favor of whaling vessels for the prospective catch, the amount of which would be §4,009,302.50;" and it appears that those claims were so eliminated for the purposes of the tables for the use of the arbitrators, although not wholly withdrawn. (See Papers, Treaty of Washington, Vol. Ill, pp. 579—580, and attached tables under head Shenandoah, pp. 602-609.) In Protocol XXVII (Id,Vol. IV, p. 43) the arbitrators made their first ruling against prospective profits August 29, 1872. Now, in Protocol XXIX, by which the British argument, here, states, as above quoted, "it will appear that the award was finally made up on the basis of allowing a sum equal to 25 per cent, etc., in lieu of prospective catch," it appears as a matter of fact, and as stated in the protocol itself, that the only figures presented was not an award or a finding at all, '' but that M. Staempfli, as one of the arbitrators, presented to the Tribunal copies ofthe synoptical table which he had prepared as a proposition for the determination of a sum in gross." 95 96 DAMAGES—PROSPECTIVE CATCH. We will see directly how that arbitrator came to put in the item "prospective profits and interruption of voyage" in this his own mere personal suffgrestion to the Tribunal. But as appears by the same protocol (XXIX) the arbitrator for Great Britain, Sir Alexander Cockburn, promptly attacked the item in question, saying: M. Staempfli has also added, for some unknown reason, 25 per cent on the values of the whalers, an addition which can be easily shown to be equivalent to altogether allowing, over and above the original value of the whalers and their outfits, a percentage exceeding 90 per cent, and this although the question of interest is left open to the decision of the Tribunal. This all occurred on September 2,1872—seven days before the award of the arbitrators. (Vol. IV, id, Dp. 44 to 47.) The award was finally agreed to and adopted, as appears by Protocol XXXI. on September 9,1872, and in it is the final decision on the question of prospective profits in these words (see id, p. 53): And whereas prospective earnings can not properly be made the subject of compensation, inasmuch as they depend 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. That is the final judgment, adopted seven days after protocol 29 (referred to in the opposing argument as above quoted) was made and signed by the arbitrators on September 2,1872, and after M. Staempfli had then made the suggestion (called the award by the opposing argument) so vigorously and successfully contested by the arbitrator for Great Britain. The error of 31. Staempfli in protocol 29, is thus shown to have been fully discussed and ruled to be an error, and expressly ruled as not having the ap- ljroval of the Tribunal. DAMAGES PROSPECTIVE CATCH. It is a matter of no importance here, but it is apparent that in making his suggestion M. Staempfli was misled in assuming that Great Britain had made an admission in their case to the effect set out in his memorandum suggestion. Thus: At page 1009 of the British counter case and evidence, fifth paragraph, it was suggested as to the whaling vessels (in regard to which only any claim for prospective catch was made bv the United States) that interest at the rate of "25 per cent per annum on the value of each ship and outfit, and in addition 5 cents per ton per day to meet expenses on account of expenditures and other disbursements, both amounts being included between the day of leaving port and the date of capture, would provide for the loss actually sustained in respect of the forty-one whalers." M. Staempfli evidently understood from this admission that 25 per cent of value was admitted by Great Britain as a proper measure of damages in the case of the whalers, when the fact was, as above quoted, it was 25 per cent per annum interest for the limited time, which had been suggested in behalf of Great Britain. It is apparent that the arbitrators allowed no interest in then* award except on account of the whalers, and for the Hmited period suggested in the British argument as above. It is submitted that it has been demonstrated that the Geneva Arbitration did decide that prospective profits should not be allowed. Indeed, it is apparent that, after a very exhaustive examination of the decisions, made by both sides in the argument, the United States substantially abandoned the claim. Mm I flj I Claim for prospective catch or prospective profits was made only for the forty-one whalers destroyed or captured, for the most part, by the Shenandoah. b s 13 97 98 DAMAGES—PROSPECTIVE CATCH. It appeared that these vessels were taken on the whaling grounds, many of them with captured whales actually alongside; all of them successfully engaged, and all with more or less bone and oil on board, with every hope of a large catch. It appeared, too, that substantially the same evidence as to the fishing grounds was presented under the claim for prospective catch as presented here, including the evidence that masters and crews had their "lays" or shares in the voyages. Vol. Ill, Papers, Treaty of Washington, pp. 253— 254; 2 Id., 384, and specific evidence of probable catch and estimates. "Am. Claims." Paraphrasing the British argument at page 25, fol. 40, as to seals: The vessels were found on I he. whaling grounds, with every appliance for catching u-hales; the whales were there to be caught. (') It is not apparent from the learning on the subject, heretofore recorded, that there is any difference in the rule of damages for marine tort, whether that tort be the result of negligence or of direct action. For the most part, such torts are those of negligence; and if Great Britain was liable at all for the depredations of the Alabama cruisers, she was liable for a wrong, and liable for the usual measure of damages as for a wrong. The case of The Amiable Nancy (3 Wheaton, p. 546) was a case of capture, of which Mr. Justice Story, in delivering the opinion of the court, said: "Upon these facts disclosed, this must be pronounced a case of gross and wanton outrage, without any just provocation or excuse." But the court held that "the probable or possible benefits of a voyage can never offer a safe rule by which to estimate damages in cases of a marine trespass." 1 DAMAGES PROSPECTIVE CATCH. 99 But it is stated in the opposing argument (p. 25, fol. 30): A radical distinction exists between the Alabama case and the present. In the case of the 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. This is answered from the British argument here, itself quoting the positions of the United States against Great Britain (p. 21, fol. 10 et seq.). The charge of the United States before the Geneva Tribunal was considered by Her Majesty's Government as "a charge of injurious negligence." (Brit. Case, Vol. I, Papers, Treaty of Washington, p. 4l2.) It was contended on the part of the United States that the acts of Great Britain were of a character by "actual or constructive complicity with the Confederates which gave the same rights against her as Great Britain asserted by war against the Netherlands." (Id., Vol. Ill, p. 218, and see id., pp. 21M— 220-222-223.) The whole argument of the United States, from beginning to the end of the Geneva Tribunal, was to establish these propositions, as against Great Britain, by the acts of cruisers for which damages were awarded: The defaults charged, and as we think, the defaults proved, are grave, serious, capital. * * * If you destroy my ship, my house, or my horse, by culpable carelessness, it is no auswer to say that you might have been more careless, nay, that you might have acted with deliberate malice. If there be responsible wrong, whether it be the greatest possible wrong or a degree less than the greatest possible, still the indemnity follows as a legitimate and just consequence. Such, indeed, is the tenor of the treaty, which attaches responsibility to mere want of " due diligence," and does not require that Great Britain should have been guilty of the utmost conceivable degree of willful negligence which could by possibility be committed by any Government. Id.. 220. 100 DAMAGES PROSPECTIVE CATCH. Again: Id., p. 223. Such is the relative predicament of Great Britain and the United States. We have been injured as a nation by acts of a maritime war happening, as the counsel think they have proved, by the culpable and responsible negligence of the. British Government. The wrong is direct as between the two nations. And the Geneva Tribunal found Great Britain guilty of a tort by the following language of the award: And whereas the circumstances out of which the facts constituting the subject-matter of the present controversy arose were of a nature to call for the exercise on the part of Her Britannic Majesty's Government of all possible solicitude for the observance of the rights and duties involved in the proclamation of neutrality issued by Her Majesty on the 13th day of May, 1861. And whereas the Government of Her Britannic Majesty can not justify itself for a failure in due diligence on the plea of the inefficiency of the legal means of action which it possessed; Four of the arbitrators, for the reasons above assigned, and the fifth, for reasons separately assigned by him, are of opinion— That Great Britain has in this case failed, by omission, to fulfill the duties prescribed in the first and the third of the rules established by the VI Article of the Treaty of Washington. And see the vigorous terms "offender" and "negligence" in the Award. (Award, Vol. 4, Papers Relating to Treaty of Washington, pp. 49, 50, 51.) A failure of due diligence is one of the standard definitions of negligence and of "culpable negligence." Culpable negligence is not actionable unless it results in injury, and recovery can not be had for it, then, unless the negligence is the direct or proximate cause of the injury. So that the Geneva'Tribunal having found culpable negligence on the part of Great Britain and an DAMAGES—PROSPECTIVE CATCH. 101 injury, the measure of recovery applied by it is measure to be applied in all cases of marine tort, in this case. It is submitted that the ruling of the Geneva Tribunal on prospective catch is the law—the law of this case. (TWO.) ne nd There is no authority for the allowance of prospective catch or prospective profits in international law, or in the judgments of the courts of either nation. There is no conflict whatever on the subject, and after considering the English and American judgments against the allowance of such damages it is proposed to analyze the citations to the contrary in the opposing argument. It should be borne in mind that the claims of owners which are now being discussed are claims for total loss to them, and not cases of warning or detention. Cases of warning will be treated separately. The leading cases are cited as follows: The English case of the Columbus (2 W. Robinson, p. 158, infra); the American case of the Lively (Gallison, p. 315, infrci). In the case of The Amiable Nancy, 3 Wheaton, p. 346: The probable or possible benefits of a voyage as yet in fieri can never afford a safe rule by which to estimate damages in cases of a marine trespass. There is so much uncertainty in the rule itself, so many contingencies which may vary or extinguish its application, and so many difficulties in sustaining its legal correctness, that the court can not believe it proper to entertain it. The Amistad de Rues (5 Wheaton, p. 385): In cases of marine torts this court has deliberately settled that the probable profits of a voyage are not a fit mode for the ascertainment of damages. It is considered that the rule is too uncertain in its own nature and too limited in its applicability to entitle it to judicial sanction. 102 DAMAGES PROSPECTIVE CATCH. In the British Counter Case, Geneva Arbitration (pp. 990, 991), we find this statement ofthe law: When once the liability to compensation for a given loss is established, snch compensation is to be estimated in accordance with the well-recognized principle of restitutio in integrum, subject, however, to those considerations as to the damages not being of too remote, contingent, or speculative a character, which, being common to the jurisprudence of all civilized nations, are adopted by international law, and seem to us therefore properly applicable to the present question. It is on this principle, limited by these considerations, that the courts of common law and of admiralty, as well as the prize courts, both in England and America, have awarded . damages in cases of collision, capture, and others of a like nature. Thus, in the case ofthe Amulia (5 New Reports, 104), Dr. Lushington, the late very eminent judge of the high court of admiralty of England, said: "Where a collision has taken place and one of the parties to the collision has been placed in the situation of the wrongdoer, according to all ordinary principles of justice the party injured ought to receive full and entire indemnity for his loss. This is a principle of common justice. It is uudoubtedly the rule originally prevailing in all these cases, and is technically styled restitutio in integrum. It is not only the doctrine of the court of admiralty, but the doctrine of the courts of common law." Again, in the case of Clyde (Swabey B., 23), the same learned judge said: "As to the principle upon which the court proceeds in these cases there is, I apprehend, no doubt whatever. That has been laid down in the Gazelle, namely, that whenever damage is done by one vessel to another the parties are to be restored to the same state as they were in before the accident—that is to say, they are to have the full value of the property lost; restitutio in integrum is the leading maxim." So, in the American case of Williamson v. Barrett (13 Howard, 101), it is said: "The general rule in regulating damages in cases of collision is to allow the injured party an indemnity to the extent of the loss sustained."* * This was a case of detention, not total loss; see opinions of three justices, including Taney, C. J., laying down the rule of the text and dissenting because not applied to a case of detention precisely as to a total loss. DAMAGES—PROSPECTIVE CATCH. 103 On the other hand that general rule is limited by the considerations above referred to. Thus, in the Columbus (2 W. Bobinson, 158), Dr. Lushington said: "It has been argued that the principle upon which this court proceeds in all matters of this kind is restitutio in integrum; in other words, the principle of replacing the party who has received the damage in the same position in which he would have been provided the collision had not occurred. As a general proposition, undoubtedly the principle in question is correctly stated, and not only in this court but in all other courts I apprehend the general rule of law is that where, an injury is committed by one individual to another, either by himself or his servant, for whose acts the law makes him responsible, the party receiving the injury is entitled to an indemnity for the same. But although this is the general principle of law all courts have found it necessary to adopt certain rules for the application of it, and it is utterly impossible in all the various cases that may arise that the remedy which the law may give should always be to the precise amount of the loss or injury sustained. * * * "Let us for a moment consider what would be the effect in all cases of this kind of giving anything beyond the full value of the vessel destroyed. Supposing, for instance, that this vessel had been an East Indiaman bound on her outward voyage to the East Indies with a valuable cargo on board, for the transportation of which not only would the owners be entitled to a large amount of freight, but the master must be entitled to considerable contingent profits from allowances made to him upon such a voyage. Oould this court take upon itself to decide upon the amount of these contingencies, and to decree the payment of the same in addition to the payment of the full value of the ship? I am clearly of the opinion that it could not. " The true rule of law in such a case would, I conceive, be this, viz, to calculate the value of the property destroyed at the time of the loss, and to pay it to the owners as a full indemnity to them for all that may have happened, without entering for a moment into any other consideration. If the principle to the contrary contended for by the owners of the smack in this case were once admitted, I see no limit in this application to the difficulties which would be imposed upon the court. It would extend to almost endless ramifications, and in every case I might be called upon to determine not only the value of the ship but the profits to be derived on 104 DAMAGES—PROSPECTIVE CATCH. the voyage in which she might be engaged; and, indeed, even to those of the return voyage, which might be said to have been defeated by the collision. Upon this consideration alone I should not, I conceive, be justified in admitting this claim." The same qualification of the broad principle of restitutio in integrum is laid down by Mr. Justice Story in several reported cases, as, for instance, in the case of the Lively (1 Galbson, 315), where that most eminent American judge said, in reference to damages for loss of cargo: "Upon the whole I am satisfied that the profits, upon the supposition of a prosperous termination of the voyage, ought not in any case to constitute an item of damage. * * * I am satisfied upon principle that an allowance of damages upon the basis of a calculation of profits is< in admissible. The rule wouldbe in thehighestdegree unfavorable to theinterests of the community; the subject would be involved in utter uncertainty. "The calculation would proceed upon contingencies, and would require a knowledge of foreign markets to an exactness in point of time and value which would sometimes present embarrassing obstacles. Much would depend upon the length of the voyage and the season of arrival, much upon the vigilance and activity of the master, and much upon the momentary demand. After all, it would be a calculation upon conjecture and not upon facts. Such a rule, therefore, has been rejected by courts of law in ordinary cases, and instead of deciding upon the gains or losses of parties in particular instances, a uniform interest has been applied as the measure of damages for the detention of property." See also Parsons on Shipping, Vol. I, p. 538, and Sedgwick on Damages, p. 70. The reason of the rule against allowing prospective catch or probable profits is well stated in the English case of the Columbus (2 W. Robinson, p. 158), a fishing- vessel: In them (the claims) exist all those elements of uncertainty, remoteness, and difficulty which would undoubtedly lead the courts, both in America and in England, to reject the claims altogether.* * See subsequent head on Contingencies of sealing, p. 177, this argument. DAMAGES—PROSPECTIVE CATCH. 105 Decisions of other international tribunals. whaleship called the Canada, sailing ind belonging to citizens of the United In the year 1867 an especially hard case occurred. It was called in the diplomatic correspondence "an outrage committed on the high seas near the Brazilian coast/upon s under the fla£ States."* Tdie act was committed by the military authorities of Brazil, for which, of course, the Brazilian Government was responsible. It consisted of the capture of the vessel, resulting in her loss to the owners. Not only was the act an affront to the flag and the dignity of the United States and a disastrous wrong to citizens of the United States, but the circumstances were particularly atrocious, in that the whaler at the time was in distress, having run on the rocks, and was in imminent danger of shipwreck. The unquestioned principle of international law need not be here referred to, that in such circumstances a vessel is held to be under the protection of all nations, and free from the ordinary rides as to liability to the laws of port of any nation except its own. On March 14, 1870, a convention was concluded between Brazil and the United States by which the question of liability and compensation was referred to the arbitration of Sir Edward Thornton, then, and for a long time thereafter, Her Britannic Majesty's minister at Washington. Sir Edward made his award on July 11, 1870, by which he found the following facts: The Canada grounded on a reef of rocks within Brazilian jurisdiction. The proper means were used by her captain and crew with every prospect of suc- * Dispatch of Secretary Fish to Mr. Blow communicated to the minister for foreign affairs, December 28, 1869. B S- -14 106 DAMAGES—PROSPECTIVE CATCH. I cess to get her off, and on December 1 a Brazilian officer with 14 armed men boarded her, superseded the authority of the captain, and forcibly prevented the further prosecution of their efforts to save the ship. That she would in fact have been saved but for this improper interference, and that she was lost through the interference. Evidence was introduced as to the possible and prospective catch if she had been permitted to proceed on her voyage. The amount of the prospective catch was demonstrated by her own previous catches and' by the catches of other whalers for the same season. The distinguished arbitrator of course held Brazil liable for the full value of the loss so inflicted on the citizens of the United States, and that a full compensation and indemnity became actually due from the moment of the loss; but on the question of prospective catch, the arbitrator, in ruling against it, uses this language: I can not admit in any case the right to probable profits, because the ship might have been lost at the beginning of her voyage, or the expedition might have been altogether a failure and profitless. (Vol. 66, Brit, and For. State Papers, 1874-5, pp. 204-209.) Great Britain made a claim against Germany for the destruction of certain British vessels in the Seine by the forces of Germany in 1871, in behalf of her subjects, the owners. The claims were first audited and examined (as these should have been) authoritatively by the British Government, and for this purpose were referred to the lords of the privy council for trade. There was also a reference to and a report from the learned registrar of the court of Admiralty, Mr. Rothery. DAMAGES—PROSPECTIVE CATCH. The result was reported by Sir Louis Mallet to Lord Enfield on April 15, 1871. The following is an extract from that report (Brit, and For. State Papers, 1870-1, Vol. 61, pp. 591-607): As regards the claims of the owners for loss of employment of ships over and above the claims for value of the ships, and of the masters and crews for loss of employment, the board ar^ advised that they must be rejected as untenable. The claims preferred may be said generally to include the values of\the vessels, and of the cargoes which were on board, or were about to be put on board, compensation to the owners for having been forcibly deprived of their property; and compensation to the master and seamen for the loss of their employments (p. 600). A further question seems to have been raised whether the owners are entitled to anything beyond the full value of the vessel and cargo, the restitutio in integrum, on the ground that if they had not been deprived of their vessels they might have continued for some months or years to carry on a prosperous trade and have realized large profits therefrom. One gentleman claims specifically on this ground the anticipated profits of several subsequent voyages, and all of them claim it indirectly in the extravagant amounts at which they have estimated the values of their vessels; but the claim, whether in the one shape or the other, seems to me to be quite inadmissible. The principle which governs cases of this description was very clearly laid down by Dr. Lushington in the case of the Columbus, reported in 6 Notes of Oases (p. 671). It was the case of a fishing vessel* which had been run down and utterly lost, and the owner, who was also the master, claimed, the smack having been his sole means of support, a sum of £89 for wages and victualing, and £75 for twelve months' average profit which would have accrued to him from the usual employment of his smack. But Dr. Lushington rejected the claim, saying, "I take the rule to be this: In the case of a total loss you calculate the value of the property destroyed at the time of the loss and pay it to the individual as a full indemnity to him for all that may have happened to him, and you never can, by possibility, enter into an examination of what might have been gained, or, on the other hand, lost by an adventure of this kind." * See analysis this case infra, showing evidence of average profits of catch before the court on this question. 107 I Bi-M: 108 DAMAGES—PROSPECTIVE CATCH. And the reason is obvious, for no one can say with certainty whether in any future adventure, for which there is no express contract, the shipowner will make a profit, nor what that profit will be. If there is an easpress contract for the hire of the ship, you can no doubt estimate approximately the profits of the voyage, but if there is no such contract you can not do so, and the adventure, instead of giving a profit, may result in a heavy loss. In the case of the Hiawatha before the British and American Mixed Commission of May, 1871 (p. 91, Brit. Agent's Report), the same principle was affirmed in the case of claims for losses of profits and the failure to realize commissions on sales depending upon the safe arrival of the ship. The case of the Washington before the Mixed Commission of 1853 was in eArery respect analogous to the present case. Great Britain claimed jurisdiction over the Bay of Fundy as territorial waters. The Washington was seized 10 miles from shore. It was held that the waters were not territorial, and that the seizure of the Washington was made on the high seas. The ship was owned by American citizens, and was under the American flag. It was therefore a case of seizure in principle precisely like the case here. She had been condemned by a British court, and with her equipment and stores sold under the order of the court At the time of the seizure she was engaged in fishing, and she made claim for all damages, including, it is assumed, her probable catch and interest As finally decided by the umpire, the claim was abated from $4,121 as excessive, and the sum of $3,000 was allowed. While the ruling is not expressly made against prospective catch, it is clear that that item was not allowed. DAMAGES PROSPECTIVE CATCH. Other authorities from the courts. In the Apollon (9 Wheaton, 362), Mr. Justice Story, delivering the opinion of the court, said (p. 376): This court on various occasions has expressed its decided opinion that the probable profits of a voyage, either upon ship or cargo, can not furnish any just basis for the computation of damages in cases of marine tort. * When the vessel and cargo are lost or destroyed, the just measure has been deemed to be their actual value, together with interest upon the amount from the time of the trespass. * * * And it may be truly said that if these rules do not furnish, a complete indemnification in all cases they have so much certainty in their application * * that they are entitled to some commendation upon principles of public policy. Smith v. Condrev, 1 How., 28: Vaushan 109 Bee a and Telegraph, 14 Wall., 258; Del. Co. v. Arnold, 3 Dall., 333; The Anna Maria, 2 Wheat., 327. Wood's Mayne on Damages, cited in the British argument (1st American Ed. from 3d English edition, p. 56) says: In general, however, injuries to property, where unaccompanied by malice, and especially where they take place under a fancied right, are only visited with damages proportionate to the actual pecuniary loss sustained. (Grand Tower Co. v. Phillips, 23 Wall., 471; Owen v. Eouth, li C. B., 327.) And in I Sutherland on Damages, 173: The value of the property constitutes the measure or an element of damages in a great variety of cases both of tort and contract; and where there are no such aggravations as call for or justify exemplary damages, in actions in which such damages are recoverable, the value is ascertained and adopted as the measure of compensation for being deprived of the property, the same in actions of tort as in actions upon contract. In both cases the value is the legal and fixed measure of damages, and not discretionary with the jury. See the City of Pekin (15 App. Cas. H. L, 438), which was a case of partial loss; The Falcon (19 Wall, 75); The Atlas (93 U. S., 3o2). 110 DAMAGES—PROSPECTIVE CATCH. w It results that the decisions of international courts, and of courts of both countries, are, without exception, in direct conflict with the position taken in the opposing argument, in every case where the ship of the claimant is lost to him by tort, either by destruction, capture, or the abandonment by the owner to condemnation proceedings, or to the captor, or iu any other case of actual loss of the property. Cases of detention, and possibly of warnings, stand upon a different footing, and in such cases, both of contract arid tort, damages in the nature of demurrage are always allowed, and in some cases where a loss by the detention can be shown quoad quantum with certainty, something more than the ordinary demurrage may be allowed; never even in such case on speculative evidence where there are contingencies or chances.* It is now proposed to analyze the cases cited in the British argument from pages 31 to 34: (1) I Peake (p. 270): The action was like that of conspiracy to injure trade. It was a willful and malicious tort, for which a recovery could have been had, as in the case of any trespass. As for instance, a conspiracy with overt act or, possibly more aptly, a malicious libel not actionable per se and not actionable without an averment of special damages. The case is not in point, and besides its citation here is distinctly non sequit/wr, as the amount of damages, or whether profits were allowed, does not appear, the pieties having agreed to refer the amount to arbitration. \ See page 116, this argument. DAMAGES—PROSPECTIVE CATCH. iff (2) l' The Risoluto (8 P. D., p. 110): (a) It was not a case of loss of the vessel, but was a suit for damages for delay or detention while making repairs rendered necessary by the tort. (b) The suit appears to have been between foreigners, and never to have been appealed. (c) It does not appear that the point as to probable catch was made in the case when reported by the registrar and merchants, but the defendants went to proofs and contested, the point decided being a question of costs only. (d) The case occurred in 1881; the decision was never treated as an authority or cited or referred to in any British or American case from the time it was rendered down to and including 1895, inclusive. (L. R. Dig. to 1895.) (e) Moreover, in the case of TJie Notting-Hill (9 P.D., 109)—an appeal case decided afterwards—the case of The liisoluto is not referred to, and it was there held that a ship having been damaged by collision, the owners claiming among other things damages for loss of market, the consequence of delay, it could not be considered as an element of damage, affirming Sir James Hannen in the case of The Parana (2 P. D., 105-118), where it was held that for a delay the consignee could not recover damages for loss of market, as that element of damages involved a matter of speculation on contingencies. In the case of Lamb v. Walker (3 Q. B. D., 389) it was held (Cock- burn, C. J., dissenting) that prospective damages could be recovered for removing the lateral support of a building. The last case was distinctly and expressljr overruled on this point under the .universal ruling against 111 Ml 112 DAMAGES—PROSPECTIVE CATCH. prospective damages in Dailey v. Mitchell (14 Q. B. D., 11 App., 127). (/) This is not an authority as against the leading Fishing case involving directly the principle of average profits on future, catch, decided by Dr. Lushington (The Columbus, 6 Notes of Cases, supra). ^Bff (3) The Gleaner (3 Asp. Mar. Cas. N. S., 582), also reported in 38 L. T. (N. S., 650). This was an action brought against a trawl fishing smack, The Gleaner, by the owners of the drift-net smack The Maud and Florence, for collision. The claim was for the value of nets and gear and compensation for loss in fishing. The ship was not lost. The report of the registrar allowed £72 for the earnings of the smack for four weeks—the season's fishing. The claim was not objected to, and the case was not in court on the point of allowance of prospective profits, but was reported to the court on the question of costs only. The case was never appealed. mm (4) I The Argentino (14 App. Cas., p. 519): This was not a case of total loss. The Argentino was proceeding on a voyage to Sevastopol, and she had a contract pro- viding' that as soon as she discharged her cargo at Sevastopol she should proceed to Antwerp, and load for another voyage. By reason of the collision she was prevented from fulfilling the contract for the second voyage. Lord Herschel announced to the lords his views, as follows: It does not appear to me to be out of the ordinary course of things that a steamship while prosecuting her voyage should have secured employment for another adventure, and if at the time of collision the damaged vessel had obtained DAMAGES—PROSPECTIVE CATCH. such an engagement, the loss of the earnings on such an adventure appears to me to be the direct and natural consequence of such a collision. # * * # * Where no claim is made in respect of loss arising from the owner having been deprived of the earnings on the voyage which was in contemplation, an engagement for which had been secured, it would be right, and is no doubt the usual course, to- award damages under the name of demurrage, etc. (See this very exception to the general rule, i. e., a case of "Express contract for the hire of the ship," noted by Dr. Lushington in the case of The Columbtis, as quoted, supra.) Further comment seems unnecessary. I (5) The case of Phillips v. London and N. W. R. R. (5 C. P. D., 280) was an action for personal injuries and for pain and suffering, by a passenger on a railroad train. He was a surgeon in active practice, and it was the ordinary case, governed by its own rales, for such damages, including, of course, loss of earning power directly traceable to the accident, as a jury might see fit to give under the evidence. Cases for the physical injury of persons are, of course, governed by a rule as to damages entirely distinct from those of injuries to property or property rights. (6) The Fortune Bay cases: There are some unfortunate omissions in the statement of facts in this citation which will be supplied. The claim was for 8120,000, and while, as stated, "there were but four vessels out of the fleet of twenty- two actually fishing," it appeared that those four vessels were handling the seines in behalf of and for the benefit of the entire fleet of twenty-two. It further, appeared, and was proved incontestably, b s 15 113 114 DAMAGES—PROSPECTIVE CATCH. that in the seines at the time ofthe fori,'and'therefore in possession, there were sufficient fish to give a full cargo to every one of the twenty-two vessels; and that by the act of the tort feasors, the property in fish so actually at the time in possession of the fleet was lost to them. The claim, therefore, was not for prospective profits, but for property actually taken frorn the fleet. There was no agreement. or decision giving estimated profits or average profits, or prospective catch, or probable catch. The result was the payment of $75,000 on the claim thus made for $120,000. This authority is adverse to the British contention. There was absolute certainty as to amount on the evidence. Of course none of the vessels were lost to the owners. The statement in the British argument is compared with the record of the cases appealing in vol. 72, Brit. State Papers, 1880, 1881, particularly at pp. 1282, 1289, 1307, and with the following quoted from that record: _The evidence in this case shows that the catch which the United States fishing fleet on this occasion actually realized was exceptionally large, and would have supplied profitable . cargoes for all of them (p. 1289). Moreover, it was admitted in terms by Great Britain as a matter of fact that beyond any contingency or speculation if the American vessels had not been disturbed they would have filled every one of the vessels. So that we must differ from the conclusion of the British argument here, on this citation, that the settlement by the payment of a lump sum "implied the consent of both nations in the principle involved in the claim for catch." If the principle of prospective catch should ever be conceded at all in cases where the owner suffers a total loss of the earning medium, there would be no reason or logic in allowing him for one season only; his loss of earnings are certainly continuous, and this the law recognizes whenever it gives interest, which the books invariably speak of as the.com-. pensation given in lieu of prospective profits, which can not be allowed. A moment's reflection will be convincing that if the theory of future profits is correct at all it can not be a matter of a season or a year, but must find for its commencement arid end the principle that the owner, .having lost the earning instrument, he should be entitled to what it would have earned him to date, as for instance in the case of tort for a continuing nuisance TV The remaining proposition of the British argument in support of the claim for prospective profits, resting, on cases like that of Allison v. Chandler (11 Mich., 542), cases of personal injuries, cases of profits on special contract, and cases involving malice, wantonness, or gross negligence, would not be seriously considered but for the fact that counsel, for whose learning and ability there is entertained the most sincere and profound respect, have again so far yielded to their., instructions as to set it down for the consideration of this High Commission. The gulf is so wide between the proposition applying here, as heretofore discussed, and this one, as to permit of no contact or induction at any point, and the very text writers and cases cited to sustain the latter, as will be seen presently, point out the broad distinction. It will be treated under the head of damages punitory or vindictive in respect of wantonness, malice, or gross negligence* *Seep. 126, infra. DAMAGES PROSPECTIVE CATCH. 115 116 Compensation in respect of warnings. It will be seen by the record that with the exception of schooners owned in whole or in part by American citizens, there are but two cases in which any substantial recovery can be had as for "warnings out," or as to which the question of damages is worthy of serious consideration. In the other cases of warnings it appears by the evidence either that there was found to be no warning by the Paris Tribunal, or the warning so found was not heeded so far as to materially affect the voyage. It is conceived that on principle, cases of warnings should be treated as are cases of marine tort resulting, not of course in loss of the res or any part of it, but in detention or interruption of the voyage, universally considered under the head of "Partial loss." In such cases the doctrine heretofore discussed, as has been seen, applies with equal force against prospective profits as such—the rule against contingencies being equally strong. This distinction in the rule of damages in cases of partial loss, or detention from earning, is nowhere more clearly drawn than by Dr. Lushington in the case of the Columbus. (Supra, 3 W. Rob., p. 159.) Sedgwick, in his work on Damages (Vol. 1, p. 257), after discussing the rale in cases of partial loss under the head "Cases of entire loss do not fall within the rule," says: It is important to observe that actions brought for the immediate destruction of property do not involve any question of gain prevented. If payment is asked for destruction— that is, for the whole value of the property—it is upon the theory that the plaintiff's entire interest in the property seized at the time of the injury was replaced by a right to have the value of the property in money. Since, therefore, the plaintiff no longer has title to the property, he can no longer claim he might make a future gain from it, and his recovery is limited to the value of the property at the time and place of destruction, with interest. DAMAGES—" WARNINGS. th And see Dr. Lushington in (Swab. Ad. R). In such cases the Supreme Court of the States have adopted the rule of the Englis ments in cases of partial loss, distinguishing between a case of total loss and a case of case of the Clyde United h judg- always partial a case damage or detention. Williamson v. Barrett (13 Howard, 101) was a case of this kind, and the court, at page 110, says: The jury was instructed if they found for the plaintiffs to give damages that would remunerate them for the loss necessarily incurred in raising the boat and repairing her, and also for the use of the boat during the time necessary to make the repairs and fit her for business. By the use of the boat we understand what she would produce to the plaintiffs by the hiring or chartering of her to run upon the river in the business in which she had been usually engaged. The general rule in regulating damages in cases of collision is to allow the injured party an indemnity to the extent of the loss sustained. This general rule is obvious enough, but there is a good deal of difficulty in stating the grounds upon which to arrive, in all cases, at the proper measure of that indemnity. The expenses of raising the boat and of repairs may, of course, be readily ascertained, and, in respect of the repairs, no deduction is to be made, as in insurance cases, for the new materials in place of the old. The claim lies in estimating the damage sustained by the loss of the service of the vessel while she is undergoing repairs. That an allowance short of some compensation for this loss would fail to be an indemnity for the injury is apparent. This question was directly before the court of admiralty in England, in the case of the Gazelle, decided by Dr. Lushington, and in deciding it the court observed: "That the party who had suffered the injury is clearly entitled to an adequate compensation for any loss he may sustain for the detention of the vessel during the period which is necessary for the completion of repairs, and furnishing the new articles." In fixing the amount of the damages to be paid for the detention, the court allowed the gross freight, deducting so much as would in ordinary cases be disbursed on account of the ship's expenses in earning it. A case is referred to, decided in the common law courts, in which the gross freight was allowed without deductions for 117 118 expenses, which was disapproved as inequitable and exceeding an adequate compensation, and the qualification we have, stated laid down. This rule may afford a very fair indemnity in cases where the repairs are completed within the period usually occupied in the voyage in which the freight is to be earned. But if a longer period is required, it obviously falls short of an adequate allowance. Neither will it apply where the vessel is not engaged in earning freight at the time. The principle, however, governing a court in adopting the freight, which the vessel was i n the act of earning, as a j ust measure of compensation in the case, is one of general application. It looks to the capacity of the vessel to earn freight for the benefit of the owner, | and consequent loss sustained while deprived of her services. In other words, to the amount she would earn him on hire. It is true in that case a ship was engaged in earning- freight at the time of the collision; and the loss, therefore, more fixed and certain than in a case where she is not at the- time under a charter-party, and where her earnings must, in some measure, depend upon the contingency of obtaining for her employment. If, however, .we look to the demand in the market for vessels of the description that has been disabled, and to the price'there which the owner could obtain or might have obtained for her hire, as the measure of compensation, all this uncertainty disappears. If there is no demand for the employment, and of course no hire to be obtained, no compensation for the detention during the repairs wili be allowed, as no loss would be sustained. But if it can be shown that the vessel might have been chartered during the period of repairs, it is impossible to deny that the owner has not lost in consequence of the damage the amount which she might have thus earned. The market price, therefore, of the hire of the vessel, applied as a test of the value of the services, will be, if not as certain as in a case where she is under charter party, at least so certain that for all practical purposes in the admin-' istration of justice no substantial distinction can be made.. It can be ascertained as readily and with as much precision as the price of any good commodity in the market, and affords as clear a rule for estimating the damages sustained on account of the. loss of her services as exists in the case of damage to any other description of personal property of which the party has been deprived. In the case of the Gazelle they held the position that an allowance of freight afforded a full indemnity for the detention of the vessel while undergoingrepairs. This would be so, as already stated, if they were made within the period she would have been engaged in earning it. If it were otherwise, it is certain that the indemnity allowed fell short of the rule laid down under which it was made, which was that the party was entitled to adequate compensation for any loss he might sustain for the detention of the vessel during theperiod which was necessary for the completion of the repairs and furnishing new articles. The allowance of freight she was earning at the time was but a mode of arriving at the loss in a particular case under the general rule thus broadly stated, and afforded, doubtless, full indemnity. We are of opinion, therefore, that the rule of damages laid down by the court below was the correct one, and is properly applicable in all similar cases. There was no question made in respect of the freight Of the vessel, hence the general principle existing was applicable irrespective of this element as influencing the result. The case of the Gazelle (2 W. Rob., 279) referred to in the foregoing opinion, is the leading English cases on the subject of partial loss as distinguished from cases of total loss. It may be observed in passing that in the case of the Clyde, supra (Swab.), Dr. Lushington quotes Dr. Twiss as referring to the above-cited case of the Gazelle, and saying, that a party was in a better situation who received only partial, damage than one whose property was totally destroyed. Dr. Lushington comments: "This is undoubtedly true, but it does not affect the principle." The Betsey Caines (2 Hag., 29) was a case of collision, wherein the injured vessel was at the time engaged in salvage of a foreign ship, and Lord • Stowell, although holding that there was not sufficient evidence to support the recovery, said: rJo authority has been mentioned by which the court might be induced to consider itself excluded from considering a question of consequential damage. * * Besides, this is not a mere claim for consequential or probable charge onlyj if the smack was actually in the pursuit of earning that which it had been stipulated she should receive.* *Again a case of certain damages in tort measured by an existing contract. DAMAGES WARNINGS. 119 120 DAMAGES "WARNINGS." And see where the distinctions are drawn between total and partial loss, and yet where in every case mere prospective damages are excluded, the following: Hadley v. Baxendale (9 Exchequer, Rep., 341), a case of special contract. The Nottinghill (9 P. D.. 109, supra); delay by collision resulting in the cancellation of a charter- party—the charterers having a right to cancel the charter-party for delays, had canceled it, and the court held the tort feasor liable for the loss of the charter-party, the actual loss being capable of exact computation as between the amount to be paid for the charter and the amount actually earned by the ship in less profitable employment; but in that case it was held that there must be deductions from that sum for wear and tear, for the difference in the length of the voyages, and for the uncertainty incident to all sea voyages. The Consett (5 P. D., 229) was a case of collision and loss of charter thereby. Of course the charter was in esse, and the loss capable of specific computation. On the other hand, in the Parana (2 P. D., 118), which was a suit for loss on account of a delay of three months, the loss having been alleged on the fall in the price of cargo, and there having been no contract for the price, it was held that there could be no recovery for the loss of market. The Clarence (3 W. Rob., 283) was a case of collision and detention. In this case it was attempted to prove the loss by evidence—as in this case—of average earnings of other vessels. The question which I have to determine is not the rate at which such a vessel as the Clarence might be hired out, but how much the company have actually lost by her detention whilst under repair. * * * DAMAGES—"WARNINGS." * * * In order to entitle a party to be indemnified for what is termed in this court a consequential loss, being for the detention of his vessel, two things are absolutely necessary, actual loss and reasonable proof of the amount. * * * The objection, it appears to me, has been founded upon a misapprehension of the principle upon which a court proceeds in assessing the amount of damage. It does not follow, as a matter of necessity, that anything is due for the detention of the vessel whilst under repair. Under some circumstances undoubtedly such a consequence will follow, as for example, where a fishing voyage is lost or where a vessel would have been beneficially employed. The onus of proving her loss rests with the plaintiff, and this onus has not been discharged upon the present occasion. Had the owners of the Clarence proved that the vessel would have earned freight and that such freight was lost by the collision, the case would have falleu within the principle to which I have last adverted. A well-reasoned case on an exhaustive review of the authorities is Wolcott et al. v. Mount (36 N. J. Law, 262-271). The court says: It must not be supposed that under the principle of Had- ley v. Baxendale (the special contract case in 9 Exc, supra) mere speculative profits, such as might be conjectured to have been the probable results of an adventure which was defeated by the breach of the contract sued on, the gains from which are entirely conjectural, with respect to which no means exist of ascertaining, even approximately, the probable results, can, under any circumstances, be brought within the range of damages recoverable. The cardinal principle in relation to the damages to be compensated for on the breach of a contract, that the plaintiff must establish the quantum of his loss, by evidence from which the jury will be able to estimate the extent of his injury, will exclude all such elements of injury as are incapable of being ascertained by the usual rules of evidence to a reasonable degree of certainty. For instance, profits expected to be made from a whaling voyage, the gains from which depend in a great measure upon chance, are too purely conjectural to be capable of entering into compensation for the nonperformance of a contract by reason of which the adventure was defeated. For a similar reason, the loss of the value of a crop for which the seed had not b s- -16 121 ! 122 DAMAGES- ' WARNINGS. been sown, the yield from which, if planted, would depend upon the contingencies of weather and season, would be excluded as incapable of estimation with that degree of certainty which the law exacts in the proof of damages. But if the vessel is under charter, or engaged in a trade, the earnings of which can be ascertained by reference to the usual schedule of freights in the market, or if a crop has been sown on the ground prepared for cultivation, and the plain- tin's complaint is that because of the inferior quality of the seed a crop of less value is produced, by these circumstances the means would be furnished to enable the jury to make a proper estimation of the injury resulting from the loss of profits of this character. The Maybey case, reported in 4 Blatclrf., 439, was decided bv Nelson, circuit judge, afterwards of the Supreme Bench of the United States. It was an appeal from the decree of the district court in a case of collision, partial damage, and detention. Justice Nelson says: The aggregate of the bills proved for repairs, etc., is $1,608.63. The commissioner had reported damages to the amount of $3,262.30. If interest be added, say for five years from the 1st of November, 1854, to the date of the report, October 19, 1859, upon the bills for repairs, etc., which interest is $554.17, making the aggregate $2,162.80, which, deducted from the amount reported, leaves a balance of $1,099.50, which must have been allowed for the fourteen days' demurrage. I am not satisfied that the proofs bring the case upon the question of damages within the rule laid down in Williamson v. Barrett (13 Howard). A good deal of the testimony was general and turned upon mere opinion as to the probability of employment in the towing business, and the amount of the earnings if employed. This kind of proof is too speculative and contingent to be a foundation for any rule of damages. It is, at best, a conjecture. The true question within the case of Williamson v. Barrett was what could the tug have been chartered for per day in the business of towing, regard being had to the market price in the city of New York. This would have brought the question down to some degree of certainty and afforded ground for an intelligible allowance or not of the loss which the libellant had actually sustained by the delay during the repairs. The facts, as left by the examination by the commissioner, are too uncertain to form a basis of any allowance V DAMAGES- 1 WARNINGS. for the detention. They are speculative and conjectural and mere opinion, *x> which no limit or rule can be applied, and it can never lay the foundation for the action of a court on this subject. I shall therefore strike out the item of demurrage, $1,099.50, and confirm the decree for $2,162.80; costs to be allowed on the appeal to neither party as against the other. Fletcher v. Tayleur (17 C. B., 20) is sometimes cited on the question under discussion. The point was not before the court or raised, and the following is the syllabus of the case: In an action for the noncompletion of a ship pursuant to the contract, the jury having given by way of damages the difference between the net freight which the vessel probably would have earned had she been ready at the time stipulated and the amount actually earned by her when delivered some months later, when freights in the particular trade were lower, no question having been raised at the trial as to the principle upon which, damages ought to have been assessed, the court refused to disturb their verdict. Evidence was merely introduced as to the value of one voyage which would have been undertaken had the vessel been delivered to the plaintiffs, and the freight to be earned was the market rate which was fixed and subject to absolute proof. And see the same distinction and principle applied in Boston Railway v. O'Reilly (158 U. S., 334), Richmond Railroad v. Elliott (149 U. S., 266), Howard v. Stillwell Co. (139 U. S., 199), Griffin v. Colver (16 N. Y. court of appeals, 489). In the last case, on a similar question, Mr. Justice Selden, in delivering the opinion of the court, said: In an action against the vendor for not delivering chattels sold, the vendee is allowed the market price for the day fixed for the delivery. Although this, in both cases, amounts to an allowance of profits, yet, as those profits do not depend upon any contingency, recovery is permitted. It is regarded as certain that the goods would have been worth the established market price at the place on the day when and where they should have been delivered. On the other hand, in cases of illegal capture, or of an 123 iff 124 DAMAGES "WARNINGS." insurance on goods lost at sea, there can be no recovery for the probable loss of profits at the port of destination. The principal reason for the difference between those cases and that of failure to transport goods upon land is that, in the latter case, the time when the goods should have been delivered, and consequently that when the market price is to be taken, can be ascertained with reasonable certainty, while in the former the fluctuation of the markets and the contingencies affecting the length of the voyage render their calculation of profits speculative and unsafe. This judgment is an exhaustive examination of the authorities applying to the present question. Talcott v. Crippen (52 Mich., 633), decision by Cooley. C.J. In Brown v. Smith (12 Cushing, 366), the court says: The conjectural or possible profits of a whaling voyage can not be taken into consideration in estimating the damages. On a full review of the authorities in cases of tort and contract, it can be said with confidence that there is not one that allows prospective profits Or prospective catch as such, or permits any such rule, and profits as a measure of damages in cases of tort or contract have never been allowed as such, save where at the time of the tort or of the breach of contract evidence could be adduced of a certain character in the nature of a definite and certain amount to be realized if the breach or the delay from tort had not occurred. What should be the rale then in case of warnings and the loss of the season's business? It should be borne in mind that the compensation to be recovered can only be applied to the loss of the season in Bering Sea. There was no interruption, with the sealing business in the North Pacific or in the Asian seas. On the other hand, unlike the cases "of detention DAMAGES—"WARNINGS." 125 where business is lost, there is no wear and tear to be estimated, as the ship did not enter upon the voyage, for detention from which compensation is claimed. Quoad the tort, every ship and equipment was as good as ever after the period of delay. A fair charter value in such cases would be the rule. But, on the whole, it is submitted that, as by international law between nations there is no rale as to interest or the rate of interest, something in the nature of a substantial return on the amount invested should be awarded to the owners of the ships of British subjects for the season's sealing voyage for which the vessel was equipped, and from realizing on which she was prevented by the warning. The principle adopted by the Board of Trade in their reports on the claim of the whalers in the case before the Geneva Tribunal is a reasonable one* Story, J., in the case of the Lively (1 Gall., 315), which was a case of unlawful capture, said: I shall allow demurrage, including therein wages and expenses of the ship from the time of capture until she could return to the place of capture. Substantially the same principle was involved in the decisions that have been considered in the discussion of partial-loss cases. In this connection it should be observed that in the Case of the forty-one whalers as to which there was so much discussion as to prospective profits in the Geneva case, many of the whalers were not destroyed, but were captured and bonded, and driven from the sealing grounds. Others were utilized by the captors for the purpose of relieving then* ships of captives taken from other vessels destroyed, and thus were not only driven from, the sealing grounds, but were sent on the service of the captors. I P. 97, supra. 126 DAMAGES—PUNITORY, ETC. This appears by the schedule and statement of claims in the record of the proceedings at Geneva, but for more convenient reference as to the facts the opinion of the American Commissioners of the Alabama claims in the case of the James Maury and others may be referred to. Damages punitory or vindictive in respect of wantonness, malice, or gross negligence. In so far as the opposing argument claims damages for acts of wantonness, insult to the flag, and the like, questions wholly between nations, the position seems to be that in some way an individual subject may succeed, as it were, to the usufruct or satisfaction that one nation may demand of another for such acts, and that this vindication of national honor may be transmuted into cash for his benefit. On this proposition enough has been said and sufficient authority cited. Inasmuch, however, as some weight is attached to the position of the American counsel at Geneva in respect of this class of damages (see the American position quoted at pp. 20—21 of the British argument) that point is briefly referred to. The American argument stated the rule of damages which applies in all cases of malice, "culpable animus," or gross negligence, which is always held to be the equivalent of malice or willful and wanton injury. On the theory of the case of the United States as originally presented at Geneva, before the withdrawal of their unliquidated and unestimated national claims, and on the theory of their right to recover them without presenting any account of them, the rule of damages as there urged was the logical and correct one, although not allowed then, and never allowed in the history of the world before or since, as between nation and nation. Let us see. That case was sui generis. DAMAGES—PUNITORY, ETC. 127 The United States, in presenting the national claims subsequently known as "indirect claims" without estimates, as if going to a jury on a case involving willful and wanton tort, not requiring the proof of special damages, proceeded to ask the Tribunal of Arbitration "to estimate the amount which ought to be paid for the transfer of the American commercial marine to the British flag." (Papers, etc., Vol. I, p. 187, top.) On the same theory they presented then claim for "the prolongation of the war and the addition of a large sum to the cost of the war and the suppression .of the rebellion," and so on. (Id., p. 185, bottom.) They did present, however, as to claims for actual losses of citizens of the United States, specific claims of liquidated amount, and did not ask, as to them, for the application of any rule of damages of a punitory or vindictive character such as are claimed here. They rested their claim for indirect damages of an unestimated character for the Nation, upon the theory, sustained, as they claimed to have demonstrated by the evidence, that the acts of the Confederate cruisers were direct acts of Great Britain of a hostile character, and to sustain that position by the record, inter alia, they quoted Mr. Cobden and others throughout then case to that effect. To illustrate by one instance of many, to sustain the charge of culpability and hostility, and therefore what would be called as between individuals, willful and malicious tort, they quoted from the speech of Mr. Cobden in the House of Commons, as follows: Tou have been carrying on hostilities from these shores against the people of the United States, and have been inflicting an amount of damage on that country greater than would be produced by many ordinary wars, etc. (Id., p. 187 middle.) The facts of record, unhappily, seemed to the counsel of the United States, such, as to require them to 128 DAMAGES PUNITORY, ETC. urge the rule of damages from which the British argument here quotes; as, for instance, they state of the acts of Great Britain that "her acts of actual or constructive complicity with the Confederates gave to the United States the right of war against her as in similar circumstances she asserted against the Netherlands." (Id., vol. 3, 218.) And again: "No such case on so large a scale has ever occurred except in the controversy between Great Britain and France in 1776, and then Great Britain declared war." (Id., p. 219.) The British counter case truthfully says, in referring to the American claims of this description: "Claims like the present have rarely been made, and, as the British Government thinks, never conceded or recognized." (Id., p. 219.) Such national claims, or so-called indirect claims, however, were, as has been seen, practically withdrawn by the United States on the intimation that Great Britain proposed to withdraw from the arbitration. To conclude this reference to a most regrettable part of that controversy, made necessary owing to the citation in the opposing argument here of the American position at Geneva on the subject of damages, the opening statement of the British case before that tribunal is cited, where it speaks of the American case as one which "imputes to the British Government hostile motives," and states that "no reply to it whatever will be- offered in the counter case." It goes on to say that the "British Government distinctly refuses to enter upon the discussion of these charges." (Id., vol. 2, p. 203.) Now, it is clearly apparent that the measure of damages urged at Geneva had reference to this feature of that case which was eliminated by the arbitrators and by the consent of the United States. It is also apparent in the whole record of the Geneva Arbitration that so far as claims for injuries to citizens are concerned the rule as to aggravation of damages was not even suggested. That rule had no ' more to do with those cases there than it has to do with the cases here. In this ejase the United States asserted jurisdiction over a piece of territory, and extended their municij pal laws over it. In pursuance of the exercise of that jurisdiction and in the execution of those laws the Government did not discriminate against British sub- jects or the subjects of any other nation; but the-great- est in number to suffer, and the greatest sufferers from its action were those persons who were under the protection of the United States and were their own citizens.* The incidental and comparatively insignificant injury to British subjects in this assertion of a right of sovereignty in respect ofthe seals in Bering Sea can hardly be characterized as "wanton" under such circumstances. It has not been considered a wanton and offensive act by Great Britain, when by international negotiation and by treaty, that Government has treated the question of the jurisdiction of the United States, as one of such grave doubt that all other considerations should be postponed until it could be decided; and when by repeated conventions, treating on the subject, as a matter of right or wrong, irrespective of jurisdiction, she has admitted the rectitude of the position of the United States as to preventing pelagic sealing in .* Excluding the fleets of American citizens who obeyed the laws by keeping out of the sealing grounds, and were thus deprived of all return on their investment in the sealing business, the map of actual seizures, put in evidence by Great Britain, shows a large majority to have been of American vessels, who risked the penalty of the law. It has been asserted that the seal poachers in the Russian as well as in the American seas were largely Americans, and Kipling testifies as an observer: " English they be and Japanee That hang on the Brown Bear's flank; And some be Scot, but the most, God wot, And the biggest thieves be Yank." B S 17 DAMAGES PUNITORY, ETC. 129 130 DAMAGES PUNITORY, ETC. Bering Sea and has joined with that Government in the effort to prevent it. But apart even from the question of what may be called abstract moral right, which excludes in its affirmation the idea of wantonness, in respect of the charge of wantonness and evil intent to injure subjects of Great Britain,' and in respect of the charge of affronting the flag and of invading the deck under it, these cases are in precision at every point, in counterpart of the case of The Washington, appearing in the proceedings of the Mixed Commission under the Convention of 1853. There was the assertion by Great Britain of exclusive jurisdiction over the Bay of Fundy, which is and was held to be a part of the high seas. There a British cruiser seized an American ship, of American registry, and flying the American flag, more than 10 miles from any coast; there the American ship was taken before an admiralty court and condemned, and by these acts lost to her owner. But there, instead of a board of arbitration, a British umpire decided against Great Britain. There was no charge of wantonness or malice on the part of the United States, but it was treated as the plain, everyday case of an act committed under claim or color of right—failing of sanction by judicial judgment— and was then treated as a simple tort. In these conditions it is not seen how the illustration cited against the United States from Mayne apjjlies, where he says: If any other riile existed [the rule as to punitory damages in llillleuinstances of aggravation] 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 everyone he met upon the cheek, while a slave followed with a purse making a legal tender of the statutory shilling. (Brit. Argument, p. 21.) DAMAGES—PUNITORY, ETC. 131 The rule in this case is, as the same author states Wood's c • Mayne on it, as of a case 01 only iancied rights, thus: Damages, 1st Am.Ed.,from In general, however, injuries to property, where unaccom- 3rd.Eng.Ed., panied by malice, and especially where they take place under' P- 56- a fancied right, are only visited with damages proportionate to the actual pecuniary loss sustained. Neither is it seen how the rules apply, cited from Sutherland on Damages, that the motive with which a wrong is done affects the rule by which compensation is measured, or, as the same author is quoted, that "Where there is a fraud or other intentional wrong there is not the same strictness to exclude uncertain and remote damages," have anything to do with this case. The rule actually applying here is stated by that author as follows (Vol. I, 173): The value of the property constitutes the measure or an element of damages in a great variety of cases, both of tort and contract; and where there are no such aggravations as call for or justify exemplary damages in actious in which such damages are recoverable, the value is ascertained and adopted as the measure of compensation for being deprived of the property the same in actions of tort as in actions upon contract. In both cases the value is the legal and fixed measure of damages, and not discretionary with the jury. The same rule will be found in Sedgwick; and his statement, as quoted in the opposing brief, as to certainty in the allowance of profits, "when not excluded as unnatural or remote, being wholly a question of the certainty of proof," refers, of course, to that "certainty," in the legal sense of the term, as defined by the cases which have been already exhaustively examined. But past profits are in no case to be taken as a guide to what may afterwards be made. (Masterton v. Mt. Yernon, 18 N. T., 391.) The citations from Sedgwick and Sutherland, of which the case of Allison v. Chandler (11 Mich., 542) is takeu as the text, appearing on pages 28, 29, and 132 DAMAGES—PUNITORY, ETC. 30 of the British argument, are another instance of extremely inappropriate application. In the case of Allison v. Chandler, if examined, will be found the same broad distinction, as in the text writers cited. Thus in that case itself: If a trespass was committed while the defendant was acting in good faith and under an honest belief that he had a legal right to do the act, the plaintiff is entitled to recover only actual damages and not damages of a punitory character. The action was one of trespass to realty, and the acts of the defendant were of a peculiarly flagrant and outrageous nature. Allison had an old-established business, and Chandler, wanting the property, without any color of right whatever, as was found, practically tore down the building over his head and rained his stock in trade. It is usually spoken of through the books and reports of cases as the leading example of a "willful, wanton, reckless, and malicious trespass." And so the Michigan cases follow it, but distinguish cases like the one here considered. (Hyatt v.Admus, 16 Mich., 180; Batterson v. Chicago, 49 Mich, 184; Kreiter v. Nichols, 28 Mich., 496) And, furthermore, it is held in the supreme court of Michigan-—where Allison v. Chandler still holds its place—that the "wrong must be one wilfully done the plaintiff, and not a wrong done without reference to him." (Detroit v. McArthur, 16 Mich., 447. And see 28 Mich., supra; Gansley v. Perkins, 30 Mich., 492; Tenhopen 1 Walker, 96 Mich., 236.) The case is like that of Temperton v. Russel— malicious injury to trade—(1893, I Q. B., 715), or if applied to marine torts, would be like the cases of malicious arrest of a ship, if it was the "result of bad faith or crassa negligence." (See cases cited, L. R Dig., 1891-1895, column 803.) EXTRAVAGANT CLAIMS. The quotations from Pothier, Lament, and from Demolombe require but two comments: (1) These are. not cases of fraud; and (2) It need hardly be said that the rule of damages under the Civil Law differs from that of the common law, and has no application here; neither has any code which has the Civil Law for a parent. LEGITIMATE COMPENSATION AND HEREIN OF EXTRAVAGANT CLAIMS. Hereafter, under the proper heads, the testimony of the several owners of the respective vessels and the other evidence will be analyzed, so that what may be deemed the highest limit of fair valuations and fair compensation for injuries may be arrived at from the testimony. The tendency to preposterous exaggeration by claimants against nations, and especially under Claims Commissions, has been universally observed, and is authoritatively set down in the books as a matter to be treated as a general rule in arriving at valuations. Under the British and American Claims Convention of 1871, 55,000 printed pages (74 octavo volumes of 800 pages each) of testimony were taken, and the aggregate of claims presented by British subjects against the United States was 896,000,000. The total awards of the Commission on those claims aggregated Si,929,819. The claim of American citizens presented to that Commission against Great Britain aggregated Si,000,000, of which none were allowed. (Brit. Agent's Rep., p. 5, App. 164; and see Am. Agent's Rep., vol. 6, Papers Treaty of Wash., pp. 4,8.) Under the Convention of February 12, 1871. between the United States and Spain, upwards of $30,- 000,000 of claims were presented and considered, and of this amount there was allowed something over 81,000,000. (Am. Rep., "Opinions and Decisions," Appendix.) 133 134 EXTRAVAGANT CLAIMS. Before the American and British Commission of 1853 claims aggregating some millions of dpllars were presented by each country against the other, and the total award on them was, on account of British subjects, 8277,102.88, and on account of American citizens, 8329,734.16. (Am. Agent's Report—Introduction and Recapitulation.) Under the Claims Convention between the United States and Mexico of July 4, 1868, the claims presented aggregated ^470,126,613.13, and the Commissioners allowed on them the sum of 83,975,123.79.* BritandFor. In April, 1871, the Montijo, an American ship, State Pa- \ -, -r-r . pers, 1874-was captured and detained by the Lnited States of "he United States preferred a claim for pers, 1874- vv ao oap ^I01; 66' Colombia, p.i02etsea. . damages. The matter was referred to arbitrators. The amount of the claim presented was 894,000. The arbitrators disagreed, and the matter was then referred to the British minister as umpire. The report on the question of compensation made by the American arbitrator was affirmed by the umpire, cutting the compensation down to S33.000. On the claims for British ships destroyed in the Seine by Prussia, Great Britain referred the valuations to the lords of the Rajvy council of trade for investigation and audit. The result was reported by the board of trade, who, after investigation, said of the claims preferred by the respective owners for the losses of their vessels that they were "far in excess of the most extravagant valuation that could be put upon them." "In 1880 a British subject in Greece was injured, his family beaten, and "his whole property destroyed." His claim on the Greek Government, which Great Britain took up, was for £21,295 Is. 4d. Great 3|l|la,in's method of intervention at first was by making reprisals. Greece protested, and Russia remonstrated. Through the mediation of France the controversy was adjusted by referring it to commissioners, who, on fullgfrvestigation and appraisement of compensation, awarded the Briiph subject £150. (Baker's Halleck, Vol. I, p. 472, note.) EXTRAVAGANT CLAIMS. And again: "Those estimates are extravagant and absurd in the extreme." The Registrar of the Court of Admiralty also made a report, in which he said: In the present case the claims preferred are so outrageous that I should be inclined to adopt the rule which I always follow in court, namely, never to allow the claimant his costs when he puts forward a very extravagant claim, as has been done in these cases. It is of interest to note the comparative valuations put upon ships by their owners, and by the Board of Trade and Admiralty for compensation, as follows: 135 Ships. Age. Tons- Owners claim. Report of amount to be paid for ship. 20 160 147 159 214 178 153 138 £ 2,400 1,824 1,800 2,500 2,000 2,800 2,000 £ 700 Ann Jane Tindall 10 21 16 1,000 700 900 19 1,100 Sally Gale ... 11 950 Sylph 550 15,324 5,900 ! r i t. and For. State Papers, Vol. 61, pp. 595-597. The aggregate of claims presented was 20,270 pounds; the total allowed on the able report of the registrar of the Court of Admiralty was 6,899 pounds. A similar report by the same authorities was made on the American claims and filed as a part of the British case before the arbitrators at Geneva, wherein they say: It will at once be admitted by those who are at all familiar Vol.2, Papers with the practice of the courts in maritime cases that it is relating to impossible to place much reliance on the opinion or evidence of shipowners or merchants as to the value of property which they are seeking to recover. Shipowners are in the habit of founding their estimate not on what would be the market price of the vessel at the time of her loss, but on Treaty of AVashing- ton, p. 283. 136 EXTRAVAGANT CLAIMS. the origiual cost price, and often take into account the amounts which they have expended at different times without making any proper deductions for the wear and tear and damage which has been sustained. Merchants are inclined to estimate the value of their goods by the profits which they had hoped to realize, without making any allowance for the risk of the market price falling or other contingencies on which those profits so often depend. Chief laims, s Justice Cockburn, in his opinion on The true character of these claims will be seen by comparing the amount of the demands now made for the jirospective earnings of the whalers with the original list of claims forwarded by Mr. Seward to Mr. Adams in 1866 aud communicated by the latter to the British Government. It thus appears that these claims have, without any assignable reason, increased to such an extent that they are now sometimes double, sometimes treble, and sometimes even more than five times what they were in the origiual list. The following table exhibits some of the more strikii cases. ig Many other similar instances of extraordinary and arbitrary increase might be cited, but the above will suffice to show (what, indeed, a mere comparison of the claims themselves with the value and tonnage of the vessels but too clearly proves) that these demands are of a most extortionate character. Vol. 4, Pa- I believe that the estimate of $100 per ton for ship and P?2?> Treaty outfit (whaling ship), proposed in the British Reports, is such 538-541 PP as would be accepted as adequate by persons acquainted with the character and value of whaling vessels. Using these few of many instances for illustration, attention is called to the evolution of the claims here from the time they first appeared and were first presented by Great Britain at Paris until they appear again in tabulated form in the argument here. This table does not include the costs in the Sayward case or "Additional claims." but simply the claims by the owners of the ships, showing the same description of L EXTRAVAGANT CLAIMS. 137 claims as times. ney nave 3n the light at three different I Claim presents Paris presented€ I Victoria. Carolena $29,313.01 Thornton 33,317. 65 Onward 29,769.71 Favourite 7,000.00 W. P. Sayward 31, 055.00 Grace 40,142.57 Anna Beck 30,863.04 Dolphin : 43,836.50 Alfred Adams 20,433.00 Ada ! 28,528.00 Triumph (little) 10,250.00 Juanita 14,695. 00 Pathfinder, 1889 ; 26,765. 00 Triumph (big) 19,674.00 Black Diamond, 1889 17.185.00 Lily 17.176.00 Ariel j 9,498.00 Kate 11.210.00 Minnie 16,460.00 Pathfinder, 1890 2,000.00 $35, 000.00 37,000.00 34.000.00 i, ooo. oo 35,000.00 52,000.00 42,000.00 55, 000.00 I 25, 000.00 42,000.00 11,000.00 18,000.00 30,000.00 25,000.00 23,000.00 I 22,000.00 12,000.00 14, 000.00 22,000.00 2,000.00 Claim as now presented. $38,089.25 42,163.04 45,570.10 6,202. 00 47, 984.96 64,498.25 54,309.08 68,897.71 20,746.00 61,003.07 5,325.50 32,481.00 34, 622.00 40,950.00 41,901.00 34,574.00 j 20,061.00 22,384.00 40,407.00 3, 700. 00 •'Interest to be added." In observing this table and the amounts in the column of claims as jjresented at Victoria, it should be remarked in passing that if the general plan of presentation as pioneered by the alleged owner, Munsie, in the long hearing in the case of the Carolena, had not miscarried, within the observation of those who were to come after, no one would venture to estimate how far the preposterous exaggeration would have gone. Equipment for business in general, for fishing voyages on the coast for other seasons, for supplies for other ships, stocks of goods for Indian trading stores, and so on, might have been added to the enormous amounts that are now shown; and, as in the case of the Carolena, vouchers might haAre been presented of the most orderly, most regular, and correct kind to convince the Commissioners that all these were used b s 18 138 DAMAGES "PERSONAL CLAIMS. in a prolonged season of two months in Bering Sea, for which the United States should pay. As it is, the results of that original plan, in the amounts of those laboriously honest vouchers for supplies and equipments, are not in the case, and even the first fruits of it, so carefully preserved and so faithfully sworn to by Munsie, the Carolena vouchers, are not brought forward, or their amounts longer included in the above "valuations." The Commissioners have seen the claimants at Victoria and have observed their methods of preparing and presenting then- evidence. As a class, they were certainly no better than those-referred to in the citations heretofore quoted, as being unreliable assessors of then* own values and damages. PERSONAL DAMAGES FOR FALSE IMPRISONMENT AND PAIN AND SUFFERING. As to these, a table is submitted * showing their growth in amount. The testimony in support of them is hereinafter analyzed under the proper heads. The Margotich story, which seems still to be given credence in the British argument, is a story of hardship, but it is not believed, after the investigation at Victoria, that the Commissioners will give it any credit. p. 59, sohed- The "sufferings and losses, navigating four vessels uieofBrit-fr0m Unalaska to Sitka," of Captain "Warren, John ish claims— ... -. . _ t -r> t • t • r\i at Paris. Keilly, Captain Jb erey, A. r>. Laing, .Louis Ulsen, Michael Keefe, and Captain Petit, of the Warren- Cooper fleet, might possibly be considered irrespective of the actual American ownership of the vessels on which they sailed, with the exception of Warren and Laing, who had full knowledge that the national character of the ships onAvhichthey sailed was not British, but American. In any case, the amounts charged for the hardships all appear by the table presented. DAMAGES—"PERSONAL CLAIMS. 139 What these sufferings and losses were did not appear* at the hearing at Victoria, but it did appear at that hearing, for the first time, that Warren, Petit, and Keefe were occupied during their "detention" in Alaska at a very high rate of compensation, paid by the authorities of the United States Government, for then services under voluntary contract. It did appear that while Captain Petit and Keefe were off on a voyage in that behalf, all the others named, who were not suffering like themselves and Captain Warren, had departed for home. Among the prisoners of 1886, aside from Margotich, are Guttornsen, Monroe, Norman, Oglivie, and Black, all of the Onward, Thornton, and the Carolena. Setting Margotich aside, the tale of suffering of these men is related by the witness Dillon, who, as it turned out on cross-examination, actually remained about the jail, not as a prisoner, but as a deputy of the sheriff, and remained because he got better wages in that employment than in following the sea. There is no claim for wages in these personal claims, and not a word of testimony except that of Margotich and the witness just mentioned as to any actual damage suffered. The testimony of Captain Raynor disposes of the Oglivie claim, and it is not thought necessary to argue the question as to whether the item which Mr. Munsie charges for cash lost through him is a proper charge against the United States. The personal claims are of a character in any case which have never been allowed in a case of unlawful capture at sea. They are claims for punitory damages, which, as we have seen, can not furnish the rule of damages here. It appears through all prior Commissions, and notahlv under the Commission of 1871, that all personal claims of masters or members of crews of ships 140 DAMAGES— PERSONAL 9LAIMS. for imprisonment, hardships, or otherwise, were presented separately from the ships, by individuals, because a finding was required on "each" claim, as in this case. It follows, on this ground also, that no claims can be entertained that are not scheduled. It was the act of a Government under color of right and claim of jurisdiction. Although the persons on the captured vessels were practically imprisoned in the Alabama cases, no such claims were even presented. The case ol the Montijo, supra, was particularly outrageous as against the ship and those upon her. In that case similar claims were presented by the United States in behalf of the officers and crew, and this is what the British minister, acting as umpire, decided on such claims: But the undersigned, whilst deciding on the liability of the owners, does not see any necessity for indemnifying either Mr. John Schruber, the captain, the engineer, or the petty officers and crew of the Montijo. No personal injury seems to have been suffered by any of these persons, and the inconvenience they experienced appears to have been small. In the case of the officers and crew probably there was none at all. The wages of all of these latter have doubtless been paid by the owners, so that it really must have been a matter of indifference to them whether they were sailing under the orders of Captain Saunders or of Seiior Herrera. As to Mr. John Schruber, the undersigned can scarcely consider as a case of false imprisonment his retention on board of his own vessel. That he was not a free man is true, and that he suffered some inconvenience and possibly some loss of business by the act of which he complains is probably the case. It is also possible that a court of law might consider him entitled to personal damages, but the undersigned believes that a Tribunal such as this is may lawfully exercise considerable discretion of its own, and decide rather on broad general principles than on a strict interpretation of written law. Such being his opinion, he concurs with the Arbitrator ofthe United States in striking out of the accounts presented by that Government the claims for personal damages of all the parties concerned. DAMAGES—SEAL SKIN VALUES. 141 CLAIMS FOR LEGAL SERVICES. On the testimony at \ ictoria, it is hardly thought possible that these charges will be entertained, in so far as they relate to the preparation of claims to be presented against the Government, and nothing can be allowed for "legal and other expenses," on an estimate, or without proof of what they are. Whatever charges were paid out for the defense of the ships of British owners in the courts of Alaska, appearing in the British schedule of claims before the Paris Tribunal, should be allowed; but there must be a certainty of proof as to them, and they can not be recovered without proof, and on their mere statement of the claim, analogous to the ad damnum clause in a declaration at .common law— unless the theory of the British argument be correct, that damages on a general allegation of legal expenses can be given because of matter of aggravation. In the case of the claim of Great Britain in behalf of her subjects in the ships destroyed by Prussia in the Seine, supra, the charge for legal services of lawyers employed to protect their interests was stricken out. The claim is never allowed in such cases of marine tort. (Baltimore, 8 Wall., 377.) Or in cases of wrongful capture at sea. (Nuestra Senora de Ret/la. 17 Wall., p. 31.) THE VALUE OF SEAL SKINS. The British Argument cites the witness Theo. Lubbe, the leading purchaser of seal skins in the A ictoria market during 1886, 1887, and 1889 to this effect: That the market at Victoria was ruled by the London * The number of seals seized on each vessel is accurately stated in the Argument for Great Britain. 142 DAMAGES—SEAL SKIN VALUES. sales. This being so, even if it be admitted that the London prices have anything to do with the measure of value, the tendency of the testimony as to that foreign market, in connection with the actual sales at Victoria is to the conclusion that the Victoria prices, so ruled, are still the tests of values in this case. The evidence discloses, however, that there was always a market at \ ictoria, and that the following were large buyers at that place during the three years: 1886: Theodore Lubbe, representing Martin Bates, Jr., & Co., of New York; Alaska Commercial Com- panA': Bessinger & Co.; The Hudson Bay Company; Liebes & Co., of San Francisco; I. & A. Boscowitz. 1887: Theodore Lubbe, representing Martin Bates, Jr., & Co., of New York; J. Uhlman & Co., of New York; Liebes & Co., of San Francisco; Morris Moss, purchasing agent at Victoria; J. Boscowitz; Hudson Bay Company. 1889: Theodore Lubbe, representing Martin Bates Jr. & Co., of New York; Walter Borns; Jos. Uhlman, of New York; H. Liebes & Co., of San Francisco; Morris Moss, purchasing agent at Victoria; The- Hudson Bay Company; J. and A. Boscowitz. Witli this evidence of a market at Victoria and with the clear evidence of another and active market so near as San Francisco, it does not yet appear how the evidence of London sales could be competent. The claims originally set down in the schedule presented at Paris were in terms based on the Victoria market, with the exception of those of Mr. Munsie, who there sets out the London prices. As to the other claims, the foreign market is a new theory. It is not necessary to again state the measure of recovery for the conversion of personal property. The cases heretofore carefully analyzed, universally hold to a test, that would exclude the London market DAMAGES—INTEREST. as a measure of value. Wherever presented, as to cargo, in cases of marine tort or contract, such a claim has been invariably ruled against. The time of the measure of value in such cases is the date of seizure. The place of the measure of value of cargo is invariably the port of departure, if a market exists there or, if not, the nearest market. 143 INTEREST. In limine, it may be said that interest was never before claimed upon prospective profits, or upon anything given in lieu of prospective profits. The only reason ever given for the allowance of interest at common law, or by the Civil law, is, that as prospective profits or future earnings can not be given, interest shall be allowed to represent future earnings, or future profits, as the nearest approach to a just rule that the law can attain. But here is presented a claim for future earnings as well as for the actual values, all, too, embracing the theory of punitory damages, and withal, a claim for interest superadded to the sum of all these. Apart from this view of the matter, upon which no more time will be spent, a review of the authorities, cited in the opposing argument, seems to be required, as well as some reference to the principles applying to the subject. (a) The award of Sir FJdward TJiomton as umpire in the case ofthe United States against Brazil is cited. This case has been analyzed in this argument, and it appears, as Sir Roundell Palmer states, that the decision 144 DAMAGES INTEREST. proceeded upon "ordinary judicial principles," and he recites the especially reckless and willful character of the wrong in this seizure committed by the military forces of Brazil, the ship being then under that nation's protection. He further shows (as does the record) that "the payment of the compensation and indemnity, though promptly claimed at the time, was for many years delayed." (See Vol. 3, Papers relating to the Treaty of Washington, pp. 566—567). The "ordinary judicial principle" to which Sir Roundell Palmer adverted, demonstrates as he shows, that that case came within the rules where interest should be given in the way of damages as for a reckless or malicious tort, and also where there has been "unreasonable delay" in the payment of the compensation, when promptly claimed, and with an undisputed basis for it, set forth in the claim. 3 id., p. 554. The learned counsel concludes with Sedgwick, as follows: 3 id., p. 55-. Where money is due without any definite time of payment, and there is no contract, express or implied, that interest shall be paid, the English rule, independent of statute, is that it can not be claimed. And he quotes the rule of the New York judgments, as to interest, as follows: Id. Id., p. 552. In two actions against a master of a ship for nondelivery of goods, it was held in JSTew York that the jury might give damages if the conduct of the defendant was improper, i. e., where fraud or gross misconduct could be imputed to him; but, it appearing that such was not the fact, it was not allowed; and that interest may be given by way of punishment for any illegal conversion or use of another's property. And the English rule, quoted from Sedgwick, where "It (interest) is imposed to punish negligence, tortious, or fraudulent conduct." (b) The Jay Treaty Case, and the opinion of Sir John wBmoll is cited. Interest was given under that treaty DAMAGES INTEREST. 145 on the claims which were for "debts bona fide contracted before the peace, still remaining owing to them [British subjects] by citizens or inhabitants of the United States;" but it was provided that even that provision should not extend to losses occasioned by the manifest delay, negligence, or willful omission of the claimants. As to the claims in favor of the United States, Sir John Nicholl recommended interest on the ascertained amount ofthe "original cost" of the property of the claimants. Of course the original cost was a certain basis for the computation; but it is expressly provided in the treaty in that case that a recovery shall not be had for losses or damages occasioned by the manifest delay, etc., of the claimants. (See for the distinction, British argument, id., p. 561 et seq.) The case at Geneva radically differs from this case, and among other distinctions it is to be obseiwed that, as stated by the British Arbitrator at Geneva, Sir Alexander Cockburn (quoted supra), the original list of private claims was "forwarded by Mr. Seward to Mr. Adams in 1866, and communicated by the latter to the British Government." (c) The argument of the Attorney-General of the United States (Wirt) under the finding ofthe Emperor of Germany is cited. It is true that that advocate argued that the United States should have interest in that case as part of the indemnity claimed by that Government; but the case is not an authority for Great Britain, for the reason that the Commissioners did not agree upon a decision and the result was another supplementary convention between the two countries. (See Sir Roundell Palmer's review of the case, supra?) (d) TJie case in 1 P. Williams Rep., Elkins v. East India Co., is cited. Was not decided on the principles of international law. The case tmned, too, upon the rule that he who B s 19 146 DAMAGES—INTEREST. takes another's money or his property and turns it into money for his own use shall respond in interest. (See Sir Christopher Robinson and Wirt, infra.) There is no question that international law does not sanction the allowance of interest. It can only be charged as "damagesfor withholding money which the party ought to pay and would not or could not." (I Op. Atty. Gen., 268 (Wirt). "Interest is not an integral part of a debt under the common law of England as accepted in the United States." (See 2 Wharton's Dig., sec. 246, and cases; Gordon v. United States, 7 Wall., 188.) In the case of the Montijo, where the United States was a claimant against Colombia before the British Minister as umpire, 5 per cent interest was disallowed for the following reasons, quoted from the opinion of the umpire: First. Because there is no settled rule as to the payment of interest on claims on countries or governments. Secondly. Because it seems open to question whether interest should accrue during the progress of diplomatic nego- tions, which are often protracted in their character. Thirdly. This reason applies with special force to negotiations which result in an arbitration or friendly arrangement.* Fourthly. That whilst doing what he considers strict justice to the claimants by giving to them the full value of the use of their vessel during her detention, he desires to avoid any appearance of punishing the Colombian people at large for an act with which very few of them had anything to do, and which affected no Colombian interests beyond those of a few speculators in revolutions in Panama, (Vol. 66, Brit, and For. State Papers, 1874-75, pp. 420-421.) Finally we cite Sh* Christopher Robinson, who was the reporter of Lord Stowell (Sir W. Scott), the great English authority on public and private international law, on the question as to whether interest should be allowed to the United States on the award of the Emperor of Russia against Great Britain. ' On this point see Amer. v. Longstreet (10 Pa. St., 145). DAMAGES—INTEREST. 147 The following is his opinion called British Government on this subject: the The question of interest presents a question of considerable importance and delicacy, and to which it will be difficult to apply the analogy of rules derived from legal proceedings, independent of the political considerations, which may have regulated the conduct of the power making compensation in the particular case. In that view, it seems to be a reasonable distinction which is raised, that sovereign powers do not usually pay interest unless they stipulate so to do. The obUgations of Governments for civil injuries are matters of rare occurrence, and depend, in form and substance, as much on liberal concessions, or on reciprocal engagements, as on the intrinsic justice or equity of the claim. They are usually compensations made on questions in doubt, after considerable intervals of time, by which interest is much enhanced. They are also compensations for the acts of others; for the consequences of error or misunderstanding rather than of fhtentional injury, and for cases in which no profit or advantage has accrued to the party by whom such compensation is made. Considerations of this kind seem to require that, if interest is to be paid as part of the compensation by treaty, it should be matter of special arrangement as to amount and particulars; and the reasonableness of that expectation supports the distinction suggested, that, where no such stipulation is made between Sovereign Powers, interest shall not be considered as due. Interest is not to be computed as between Sovereign Powers except by express stipulation. (Vol. 3, Papers Relating to the Treaty of Washington, p. 565.) The same authority states the general rules succinctly in'the following words: The rules of law, as far as they may be applicable to this question, do not favor claims of interest, except under special circumstances, as in cases of agreement, expressed or implied, or of the possession or enjoyment of intermediate profits, or of injury, properly so termed, in respect to the tortious nature of the act, for which the compensation is to be made. (Id., p. 564.) In the Geneva case certain interest was allowed, wholly in the discretion of the arbitrators, in lieu of fro 148 DAMAGES SAYWARD COSTS. certain earnings, where it appeared that the American Government had presented the claims, which were passed upon by the arbitrators, immediately at the close of the war in 1866. Interest seems to have been allowed at the lowest rate from the date of the filing of the claims, and not from the date of the capture of the ships. In this case, as it has been shown in the Introduction to this argument, Great Britain expressly stated that the circumstances were such that the claims could not be audited or presented, and suggested that hi lieu of auditing and presenting the claims at the time a Commission should be appointed. This suggestion resulted in the Paris Arbitration, • and the claims then for the first time appeared to the United States. Even then, owing to the questions of citizenship and others, no computation could be or was made, and then consideration was by agreement, in the stipulated findings, again postponed. It results that under the law and precedents— (1) Interest can not be allowed as a matter of right; and (2). That under no circumstances can interest be allowed upon values from a date prior to the Paris award, or, as we submit, prior to the ascertainment of the claims by this Commission. (3) That the rate of interest, if allowed at all, can not be fixed by a local rate or by a municipal rate. THE "COSTS IN THE SAYWARD CASE." The United States stand upon their motion to dismiss this claim on the ground that the Commissioners have no jurisdiction to consider it under the Convention, DAMAGES—SAYWARD COSTS. 149 for the following reasons, any one of which is conclusive: The item, without interest, is for $62,817.12, admitted to be the expenses of the British Government in and about a vain application to the Supreme Court of the United States for a writ of prohibition to the Federal Court of Alaska in the case of the W. P. Sayward, a fishing schooner worth at the highest estimate $7,000. It appears by the claim presented in behalf of the owners of the schooner that for the costs of the owners in litigation entirely outside of this charge, made in behalf of the British Government, there is a claim for legal expenses and "costs" amounting to $1,800. (1) There is nothing referred to this Commission by the Convention under Article I except "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 aforesaid, the Award, and the Findings of the said Tribunal of Arbitration, as also the additional claims specified in the fifth paragraph of the preamble hereto." The United Kingdom of Great Britain is- not a "person." (2) This is not a claim appearing in the "Findings ofthe said Tribunal of Arbitration" or an "Additional claim." It did not appear in the schedule of the British claims, pages 1 to 60, inclusive, specified in the Findings, which, as has been seen, are a part of this Convention. Those claims, which were before the Paris Tribunal, and specifically pointed out in the Findings named in the Convention, were set out in the British case, which was delivered on or before the 6th of September, 1892, in accordance with Article III vf0^A^e6r; of the Treaty of February 29,. 1892. print, P. 5. 150 DAMAGES—SAYWARD COSTS. Voi.8,Amer- Th^e Was nothing about this claim in that case, ican re- . . . ° i ' print, p. ana nothing 01 tne |*and was presented until three 69- months thereafter, when the British counter case was filed, disclosing at page 315 of tb^t counter case this identical claim, which was its fiifet attempted appearance before the Paris Tribunal. Page 185, Now the British argument, here, states the follow- Fol. 30. • ° ' ' rng: The facts are, therefore, that this particular claim was formulated and placed before the Paris Tribunal. It was not then objected to as a fair matter for consideration. This again, is a striking error, i Am. Re- as appears by Protocol 3 of the Pails Tribunal, on ■print Typ» i 18-19. April 4, 1893, the United States promptly moved to strike this item out, on the ground that it was tendered for the first time in the counter case, and was not pertinent or relevant by way of reply.* ^Van^e" ^n April 7,1893, the American counsel, Mr. Phelps, print, p. called the motion up, and after some discussion be- 149- tween counsel and the arbitrators, it was postponed until April 12th. Vp:22. M'' 0n the latter daY (April 12th), as appeai-s by Protocol 7, the consideration of the motion was postponed until such time "as shall hereafter be indicated by the Tribunal." The argument on the main questions followed, and the next official act touching this claim, it having been designated by the British counsel as a matter of Vol. u, id.,p. " small importance," was on May 31, 1893—Protocol 149- 30—when the British Government, through Sir Charles Russell, submitted to the Arbitrators in writing the questions of fact and claims of Great Britain as to which a finding was asked, describing the 33.' "p-claims as between pages 1 to 60 of the original British case only, thus excluding and withdrawing this contested item. * It was pnt in at the extreme end of the counter ease. DAMAGES SAYWARD COSTS. 151 It was therefore never received by, and was never "before the Paris Tribunal." To conclude the Paris history, the Tribunal itself, voi.i,pp.80- upon the proposition submitted in writing by Sir Charles Russell, on August 15th following, made the Findings of Fact, and found the claims before them, in respect of which Findings of Fact were required, to be, only those between pages 1 to 60 inclusive of the original British case, thus formally excluding this claim by the act of the Tribunal itself as one not "before" it. The British argument is again in error when it says there were no other costs for The Sayward which could be referred to. They have been referred to and stated as amounting to $1,800 in the British argument at page 111, and were referred to and set out in the original British schedule, at page 19, passed upon as "before the Paris Tribunal," amounting to $1,100. They are there set down as claims on account of a "person," i. e., Cooper, the owner of the Sayward. (3) This claim is not an "Additional claim" limited by Article I of this Convention as specified in the fifth paragraph of the preamble, and is as expressly excluded from reference under that head as it is in terms, as above shown, excluded from the class appearing "before the Paris Tribunal." (4) As to the effect of the "Appendix" of claims attached to the Convention: The title of that Appendix, as attached to the Convention, excludes the costs in the Saywanl case for the reasons before stated. That title is "Claims submitted to the Tribunal of Arbitration at Paris." The words "costs in the Sayward case," as noiv construed by Great Britain, are interpolated under that title. It need hardly be argued that such an annex or schedule can not, in any case, control the Convention, 152 DAMAGES—SAYWARD COSTS. or add to the Convention a claim or a matter excluded by the provisions of the Convention itself. It has been seen that the costs in the Sayward case are so excluded. The rule of interpretation, as has been seen, is the same of a treaty as of a statute. The attachment of schedules to statutes is a common practice enough, but this is the rule as to them: When in any manner repugnant to the provisions of the statute itself, the statute will control over the schedule. (See Peg. v. Baines, 12 (5?) Ad. & El., 227 (Tindal, C. J.); Bart- lett v. Gibbs, 5 M. & G., !!6; Allen v. Flicker, 10 Ad. & El., 640; Regina v. Russell, 13 Q. B., 237; Dean-w. Green, L. R., 8 P. D., 79; Clarke v. Grant, L. R., 8 Exch., 252.) (5) Even if the matter were not absolutely concluded on the question of jurisdiction, the counsel of the United States are unaware of any principle, by which, the legal expenses of a defeated party, incurred in a case wherein he has vainly invoked the wrong judicial jurisdiction for relief, can be allowed him. The rule is otherwise in a proper case, if the party has pursued the proper jurisdiction by appeal. No reclamation can be made against a Government, upon judicial action in its courts, unless the proceeding complained of has been sanctioned by the court of last resort in the judicial system of the country complained of, or there is a legal excuse for the failure to appeal. See cases directly in point under the American and British Claims Commission of 187.1 from pp. 88 to 141, inclusive. (Vol. 6, papers, etc., Treaty of Washington.) It is not true, as intimated in the British argument, that the application for writ of prohibition was a consent proceeding. It was vigorously contested by the United States, and the note verbale of the Secretary of State, referred to in the British Argument, [April 8,1888],* recognizes 'The prohibition proceeding was not instituted till January, 1891. the fact that appeal the Sayward case by reference to the app] of years later. The litigation so "appeal ment, be included in Finally, the owner as has been seen, is a Thomas H Coopei within the finding's o "additional claims." proceedings had been taken in ' Cooper, and, of course, has no ication for a writ of prohibition costs in the Sayward case in the ed" might, on amicable adjust- the convention, and they were. of the Sayward—the claimant— civil citizen of the United States. is the sole owner and claimant f fact of the Paris Tribunal. THE "ADDITIONAL CLAIMS." These are for the owners of the Wanderer, the Winifred, the Henrietta, and the Oscar and Hattie.. Preamble 5, made a part of Article I, by reference, states that the United States admits no liability as to them. The facts regarding these cases are analyzed under their proper heads, infra. The case of the Winifred is concluded against Great Britain by the action of Captain Parr, Her Majesty's Naval Commander in the Pacific. The handing of the Winifred over to the United States authorities for prosecution under the revenue laws, by the commander of a British ship of war, estops that Government from making a claim as much as if that action had been taken by royal order. It is universally recognized that on the high seas or in foreign waters, the commander of a commissioned public ship of war represents the sovereignty itself, and speaks for it. Everything done by him is presumably by the direct authority and express order of the State, until such acts are expressly disavowed. (See case of "Trent") On this all writers on international law are agreed. (See Hall Int. Law, sees. 65-226.) The point that the seizure was made outside of the bs 20 153 w 154 ADDITIONAL CLAIMS. .jurisdiction has nothing to rest upon. When the British ship Winifred came within the control of Her Majesty's ship of war, in the harbor of Unalaska, so far as any privilege from extra-territorial seizure was concerned, it was, as it could be, waived by the action of Great Britain acting through Commander Parr. The additional claims are not governed by the findings of fact or the proceedings of the Paris Tribunal in any respect. The international question of jurisdiction being out of the way, issue is taken with the position of the British counsel that the Commissioners under the present Convention can revise the finding of the court of Alaska on any juridical question. No international court can revise the judgment of the court of a nation, unless that judgment be by the court of last resort in its judicial system. This rule is established as one of universal application, to which there can be no exception, unless an appeal was prevented. The owners of the Winifred can not enter this international court, without showing an unsuccessful appeal to the last appellate jurisdiction in the judicial system of the United States. (See vol. 6, Papers, etc., Washington Treaty, pp. 88-141), where the authorities are collected and the whole subject is exhaustively considered and is repeatedly passed upon. In this case the point of jurisdiction was not made by the owner; he, properly acquiescing in the direction of the commander of H. M. S. Melpomene, defended on the merits and was condemned, and took no appeal. Moreover, for the Winifred to recover would be against public policy. Whatever purpose of excuse her distress might serve, for entering the sea, she was thereafter found actually engaged in taking seals in violation of the laws of both Great Britain and the United States, as is admitted on all sides. 'ADDITIONAL CLAIMS.' 155 THE OSCAR AND HATTIE CASE. It is the settled rule in such cases that however the facts may turn out, if the captor acted on reasonable cause of suspicion, damages can not be allowed for the seizure. But in this case Her Majesty's Government under the modus vivendi set out what should be considered the probable cause. This order was adopted in the United States. On the question of probable cause we cite The Isabella Tliompson, Am. and Brit. Mixed Com., Vol. 6, Papers Relating to Washington Treaty, p. 93; Pacifique, id., p. 97 et seq., and cases cited. And see Dr. Lushington in the Leucade, 2 Spinks, 236: The Peterhoff, 5 Wall., 28, which was before the Am. and Brit. Commission, vol. 6, papers, etc., pp. 136-139. In this case, under the modus vivendi, the Oscar and Hattie was turned over to H. M. S.Melpomene in Bering Sea. It is not disputed that the facts were correctly represented to the commander of the Melpomene. That officer, by taking the Oscar and Hattie into court, passed his judgment upon probable cause. Her case thus passed from the control of the United States and the responsibility for prosecution, from then, was in the hands of the officers of the British Government. The court of first hearing—the supreme court of British Columbia—on a full hearing of the facts, condemned the ship. It is said now, that on reversal of that judgment by the appellate court of Her Majesty, the United States are liable as for damages for the seizure. Neither Government would be liable on the facts of the case, but in any case the responsibility must rest with Great Britain. The cases of the Henrietta, the Wanderer, the Oscar and Hattie, and the Winifred are hereafter especially treated under their respective heads. 156 OBSERVATIONS APPLYING ONLY TO CERTAIN CLAIMS. The Pathfinder, in Neah Bay, No. 21.—This vessel was found in waters within the exclusive jurisdiction of the United States; she was boarded by the officers of customs, who had been advised that she had escaped from a previous seizure that had been made under the direction of the Treasury Department for alleged violation of the laws of the United States. The revenue cutter, without delay, towed her to the nearest telegraph station, at Port Townsend, a six hours' run, and at once communicated with the Treasury Department at Washington, whereupon her release was immediately ordered by telegraph. She was detained but a part of one day, and the utmost possible expedition was used in obtaining authoritative instructions in regard to her case. For this act Great Britain brings a claim for "seizure" and for damages for future catch. 1) need not be argued that the general rule is that all foreign vessels, and for this purpose even ships of war, are liable to visitation from customs and quarantine officers of the nation whose jurisdiction they enter. (See Baker's Halleck, Vol. I, p. 217, notes 5 and 6; and see Hall, pp. 195-200-209. The United States have statutes, called "hovering acts," similar to those of Great Britain, and "officers of revenue cutters are authorized to search, examine, and remain on board all incoming vessels, domestic or foreign, when within 4 leagues, or 12 miles, of the coast." (Rev. Stat. l\ S., sees. 2760-2867-2868; and see 9 Geo., II, chap. 35.) The Knglish law was enacted in 1735: the American act in 1799. The law as to a vessel, that has put into a foreign port in distress, is perfectly7 well settled. The privilege of such vessel, by the comity of nations, which in this respect has become international law, is admitted to the fullest extent; but the exemption does not go to the length of excluding reasonable quarantine or customs inspections. The detention for customs OBSERVATIONS APPLYING ONLY TO CERTAIN CLAIMS. 157 inspection may7 be for a sufficient time to ascertain the character of the ship, and in case the distress privilege is claimed, by protest or otherwise, the authorities are entitled to be reasonably satisfied of the good faith of such claim. The privilege itself, so far as property7 is concerned, goes only to the exemption of the ship from the execution of the laws of- the jurisdiction, which, but for the privilege, might work forfeiture of ship or cargo. There is no doubt whatever, either, that if the 'privilege be claimed, and the good faith of the claim is fairly doubted, the question may be brought before the courts of the nation of the port for trial. The burden of proving the necessity or distress, which brought the ship in, is upon the ship. (The Diana, 7 Wall., 354; and see The Copenhagen, 1 C. Rob., 289.) In any case, however, the privilege must be asserted and claimed promptly from the authorities of the jurisdiction in person, or by7 a consul of the ship's nation; otherwise it does not avail. In this case, as the Commissioners will find on reference to the Record, the claim umv set up on the part of this vessel, that she was in Neah Bay to "fix her rudder" or otherwise from distress, -was never made to the visiting officers at any time, or brought to their attention formally or informally ! On the long Pacific coast of the United States, which is especially exposed at all times to offenses against the revenue laws, or, for that matter, on any other of their coasts washed by the high seas, the proper officers of the customs service may visit a ship and, upon reasonable suspicion as to its character, detain it for the necessary time to ask for instructions from their Government. The right and the practice is one of self-protection, and not one that any nation can surrender. The distress theory, and the bill for damages, originated II 158 OBSERVATIONS APPLYING ONLY TO CERTAIN CLAIMS. with Munsie, like many other things, but all unwit- tingly, he did not fit his proofs to the law requiring that the distress privilege should be promptly claimed, in order to form even a pretense for his good hope of avails. The Black Diamond, No. 5, and James Gaudin, No. 11.—These claims are submitted on the questions raised on the motions to dismiss them, found, respectively, at pages 16, fol. 60, and 37, fol. 50, of Appendix A (the pleadings) of the Record. They are treated in the Argument of Great Britain as if submitted on the merits. They are, however, submitted under stipulation found at page 17 (id.), wherein it is agreed, subject to the sanction of the Commissioners, that they may be proceeded with for the purpose of reporting facts and conclusions to the respective Governments. Provided that the question of jurisdiction of the Commissioners under the Convention, in respect of said claims, shall remain undecided, but the Commissioners, in their discretion, may report their opinion on that question, counsel intending to prejudice in no way whatever their respective Governments in the above matters. For the purposes of the stipulation, these claims ■ are submitted for such action as the Commissioners may take; and, as bearing upon the positions taken in the motion to dismiss, attention is invited to those parts of this argument bearing upon the interpretation and scope of the Convention on the question of jurisdiction, and also to the facts as hereinafter analyzed. The Carolena, Onward, and Thornton.—It is submitted as a matter of law on the facts hereinafter discussed in relation to the schooners Carolena, Thornton, and Onward, that the respective owners of those vessels treated the acts of seizure as constituting a total loss OBSERVATIONS APPLYING ONLY TO CERTAIN CLAIMS. 159 as of the date of the seizures. And moreover, in that connection, the failure of the officers of the district court of Alaska to act on the telegraphic orders from the Government for the release of these vessels can cut no figure on this question, as, under the evidence, the acts and conduct of the owners show that they would not have accepted a release at any time after the seizures. The principle to be applied in such cases is this: That a tender is never necessary to be shown when it appears at the trial that the tender would not have been accepted if made. Jus vanum non exigit; Jus nequam non requirit. Don M. Dickinson. Robert Lansing. Charles B. Warren. Appendix I. CONDENSED PROTOCOLS. Correspondence preliminary to the negotiation of the treaty of Washington signed May 8,1871. Sir Edward Thornton to Mr. Fish. Washington, January 26,1871. Sir: In compliance with an instruction which I have received from Earl Granville, I have the honor to state that Her Majesty's Government deem it of importance to the good relations which they are ever anxious should subsist and be strengthened between the United States and Great Britain, that a friendly and complete understanding should be come to between the two Governments as to the extent of the rights which belong to the citizens of the Unites States and Her Majesty's subjects, respectively, with reference to the fisheries on the coasts of Her Majesty's possessions in North America, and as to any other questions between them which affect the relations of the United States toward those possessions. As the consideration of these matters would, however, involve investigations of a somewhat complicated nature, and as it is very desirable that they should be thoroughly examined, I am directed by Lord Granville to propose to the Government ofthe United States the appointment of a Joint High Commission, which shall be composed of members to be named by each Government; shall hold its sessions at Washington, and shall treat of and discuss the mode of settling the different questions which have arisen out of the fisheries, as well as all those which affect the relations ofthe United States toward Her Majesty's possessions in North America. I am confident that this proposal will be met by your . Government in the same cordial spirit of friendship which has induced Her Majesty's Government to tender it, and I can not doubt that in that case the result will not fail to 160 CONDENSED PROTOCOLS. 161 contribute to the maintenance of the good relations between the two countries, which I am convinced the Government of the United States, as well as that of Her Majesty, equally have at heart. I have the honor to be, with the highest consideration, sir, your most obedient, humble servant, Edward Thornton. Hon. Hamilton Fish, &c. Mr. Fish to Sir Fdward Thornton. Department of State, Washington, January 30,1871. Sir : I have the honor to acknowledge the receipt of your note of January 26, in which you inform me, in compliance ■with instructions from Earl Granville, that Her Majesty's Government deem it of importance to the good relations which they are ever anxious should subsist and be strengthened between the United States and Great Britain, that a friendly and complete understanding should be come to between the two Governments as to the extent of the rights which belong to the citizens of the United States and Her Majesty's subjects, respectively, with reference to the fisheries on the coast of Her Majesty's possessions in North America, and as to any other questions between them which affect the relations of the United States toward those possessions; and further, that as the consideration of these questions would involve investigations of a somewhat complicated nature, and as it is very desirable that they should be thoroughly examined, you are directed by Lord Granville to propose to the Government of the United States the appointment of a Joint High Commission, which shall be composed of members to be named by each Government, shall hold its sessions at Washington, and shall treat of and discuss the mode of settling the different questions that have arisen out of the fisheries, as well as all those which affect the relations ofthe United States toward Her Majesty's possessions in North America. I have laid your note before the President, who instructs me to say that he shares with Her Majesty's Government the appreciation of the importance of a friendly and complete understanding between the two Governments with reference to the subjects specially suggested for the consideration of the proposed Joint High Commission, and he fully recognizes the friendly spirit which has prompted the proposal. b s 21 162 CONDENSED PROTOCOLS. The President is, however, of the opinion that, without the adjustment of a class of questions not alluded to in your note, the proposed High Commission would fail to establish the permanent relations and the sincere, substantial, and lasting friendship between the two Governments which, in common with Her Majesty's Government, he desires should prevail. He thinks that the removal of the differences which arose during the rebellion in the United States, and which have existed since then, growing out of the acts committed by the several vessels which have given rise to the claims generic- ally known as the "Alabama" claims, will also be essential to the restoration of cordial and amicable relations between the two Governments. He directs me to say that should Her Majesty's Government accept this view of the matter, and assent that this subject also may be treated of by the proposed High Commission, and may thus be .put in the way of a final and amicable settlement, this Government will, with much pleasure, appoint High Commissioners on the part of the United States, to meet those who may be appointed on behalf of Her Majesty's Government, and will spare no efforts to secure, at the earliest practical moment, a just and amicable arrangement of all the questions which now unfortunately stand in the way of an entire and abiding friendship between the two nations. I have the honor to be, with the highest consideration, sir, your obedient servant, Hamilton Fish. Sir Edward Thornton, K. C. B., &c. Sir Edward Thornton to Mr. Fish. Washington, February 1,1871. Sir : I have the honor to acknowledge the receipt of your note of the 30th ultimo and to offer you my sincere and cordial thanks for the frieudiy and conciliatory spirit which pervades it. With reference to that part of it in which you state that the President thinks that the removal of the differences which arose during the rebellion in the United States, and which have existed since then, growing out of the acts committed by the several vessels which have given rise to the claims generically known as the "Alabama" claims, will also be essential to the restoration of cordial and amicable CONDENSED PROTOCOLS. 163 relations between the two Governments, I have the honor to inform you that I have submitted to Earl Granville the opinion thus expressed by the President of the United States, the friendliness of which, I beg you to believe, I fully appreciate. 1 am now authorized by his lordship to state that it would give Her Majesty's Government great satisfaction if the claims commonly known by the name of the " Alabama" claims were submitted to the consideration of the same High Commission by which Her Majesty's Government have proposed that the questions relating to the British possessions in North America should be discussed, provided that all other claims, both of British subjects and citizens of the United States, arising out of acts committed during the recent civil war in this country, are similarly referred to the same Commission. The expressions made use of in the name of the President in your above- mentioned note, with regard to the "Alabama" claims, convince me that the Government of the United states will consider it of importance that these causes of disputes between the two countries should also, and at the same time, be done away with, and that you will enable me to convey to my Government the assent of the President to the addition which they thus propose to the duties of the High Commission, and which can not fail to make it more certain that its labors will lead to the removal of all differences between the two countries. I have the honor to be, with the highest consideration, sir, your most obedient, humble servant. Edward Thornton. Hon. Hamilton Fish, &c. Mr. Fish to Sir Edward Thornton. Department of State, Washington, February 3,1871. Sir: I have the honor to acknowledge the receipt of your note of the 1st instant, in which you inform me that you are authorized by Earl Granville to state that it would give Her Majesty's Government great satisfaction if the claims commonly known by the name of the "Alabama claims," were submitted to the consideration of the same High Commission by which Her Majesty's Government have proposed that the questions relating to the British possessions in North America should be discussed, provided that all other claims, both of British subjects and citizens of the United States, arising 164 CONDENSED PROTOCOLS. out of acts committed during the recent civil war in this country, are similarly referred to the same Commission. I have laid your note before the President, and he has directed me to express the satisfaction with which he has received the intelligence that Earl Granville has authorized you to state that Her Majesty's Government has accepted the views of this Government as to the disposition to be made of the so-called " Alabama claims." He also directs me to say, with reference to the remainder of your note, that if there be other and further claims of British subjects or of American citizens growing out of acts committed during the recent civil war in this country, he assents to the propriety of their reference to the same High Commission; but he suggests that the High Commissioners shall consider only such claims of this description as maybe presented by the Governments ofthe respective claimants at an early day, to be agreed upon by the Commissioners. I have the honor to be, with the highest consideration, sir, you obedient servant, Hamtlton Fish. Sir Edward Thornton, K. C. B., &c. Extract from Protocol XXXVI of conference between the Sigh Commissioners on the part of the United States and the High Commissioners on the part of Great Britain. Washington, May '4,1871. The High Commissioners having met, the protocol of the conference held on the 3d of May was read and confirmed. The High Commissioners then proceeded with the consideration of the matters referred to them. The statement prepared by the joint protocolists, in accordance with the request ofthe Joint High Commissioners at the last conference, was then read, as follows: STATEMENTS. Articles I to XL At the conference held on the 8th of March, the American Commissioners stated that the people and Government of the United States felt that they had sustained a great wrong, and that great injuries and losses were inflicted upon their commerce and their material interests by the course and conduct of Great Britain during the recent rebellion in the condensed protocols. 165 United States; that what had occurred in Great Britain and her colonies during that period had given rise to feelings in the United States which-the people of the United States did not desire to cherish toward Great Britain; that the history of the Alabama and other cruisers which had been fitted out, or armed, or equipped, or which had received augmentation of force in Great Britain or in her colonies, and of the operations of those vessels, showed extensive direct losses in the capture and destruction of a large number of vessels with their cargoes, and in the heavy national expenditures in the pursuit of the cruisers and indirect injury in the transfer of a large part of the American commercial marine to the British flag, in the enhanced payments of insurance, in the prolongation of the war, and in the addition of a large sum to the cost of the war and the suppression of the rebellion; and also showed that Great Britain, by reason of failure in the proper observance of her duties as a neutral, had become justly liable for the acts of those cruisers and of their tenders; tihat the claims for the loss and destruction of private property which had thus far been presented amounted to about fourteen millions of dollars, without interest, which amount was liable to b© greatly increased by claims which had not been presented; that the cost to which the Government had been put in the pursuit of cruisers could easily be ascertained by certificates of Government accounting officers; that in the hope of an amicable settlement no estimate was made of the indirect losses, without prejudice, however, to the right to indemnification on their account in the event of no such settlement being made. The American Commissioners further stated that they hoped that the British Commissioners would be able to place upon record an expression of regret by Her Majesty's Government for the depredations committed by the vessels whose acts were now under discussion. They also proposed that the Joint High Commission should agree upon a sum which, should be paid by Great Britain to the United States, in satisfaction of all the claims and the interest thereon. The British Commissioners replied that Her Majesty's Government could not admit that Great Britain had failed to discharge toward the United States the duties imposed on her by the rules of international law, or that she was justly liable to make good to the United States the losses occasioned by the acts of the cruisers to which the American Commissioners had referred. They reminded the American Commis*sioners that several vessels, suspected of being designed to cruise against the United States, including two iron-clads, had been arrested or detained by the British 166 condensed protocols. Government, and that that Governmenthad in some instances not confined itself to the discharge of international obligations, however widely construed, as, for instance, when it acquired at a great cost to the country the control of the Anglo-Chinese flotilla, which, it was apprehended, might be used against the United States. They added that although Great Britain had, from the beginning, disavowed any responsibility for the acts of the Alabama and the other vessels, she had already shown her willingness, for the sake of the maintenance of friendly relations with the United States, to adopt the principle of arbitration, provided that a fitting arbitrator could be found, and that an agreement could be come to as to the points to which arbitration should apply. They would, therefore, abstain from replying in detail to the statement of the American Commissioners, in the hope that the necessity for entering upon a lengthened controversy might be obviated by the adoption of so fair a mode of settlement as that which they were instructed to propose; and they had now to repeat, on behalf of their Government, the offer of arbitration. The American Commissioners expressed their regret at this decision of the British commissioners, and said further that they could not consent to submit the question of the liability of Her Majesty's Government to arbitration unless the principles which should govern the arbitrator in the consideration of the facts could be first agreed upon. The British Commissioners replied that they had no authority to agree to a submission of these claims to an arbitrator with instructions as to the principles which should govern him in the consideration of them. They said that they should be willing to consider what principles should be adopted for observance in future, but that they were of opinion that the best mode of conducting an arbitration was to submit the facts to the arbitrator, and leave him free to decide upon them after hearing such arguments as might be necessary. The American Commissioners replied that they were willing to consider what principles should be laid down for observance in similar cases in future, with the understanding that any principles that should be agreed upon should be held to be applicable to the facts in respect to the "Alabama " claims. The British Commissioners replied that they could not admit that there had been any violation of existing principles of international law, and that their instructions did not authorize them to accede to a proposal for laying down rules for the guidance of the arbitrator, but that they would make condensed protocols. 167 known to their Government the views ofthe American Commissioners on the subject. At the respective conferences on March 9, March 10, March 13, and March 14, the Joint High Commission considered the form of the declaration of principles or rules which the American Commissioners desired to see adopted for the instruction of the arbitrator and laid down for observance by the two Governments in future. At the close of the conference of the 14th of March the British Commissioners reserved several questions for the consideration of their Government. At the conference on the oth of April the British Commissioners stated that they were instructed by Her Majesty's Government to declare that Her Majesty's Government could not assent to the proposed rules as a statement of principles of international law which were in force at the time when the Alabamaclaims arose, but that Her Majesty's Government, in order to evince its desire of strengthening the friendly relations between the two countries, and of making satisfactory provision for the future, agreed that in deciding the questions between the two countries arising out of those claims, the arbitrator should assume that Her Majesty's Government had undertaken to act upon the principles set forth in the rules which the American Commissioners had proposed, viz: That a neutral government is bound, first, to use due diligence to prevent the fitting out, arming, or equipping, within its jurisdiction, of any vessel which it has reasonable ground to believe is intended to cruise or carry on war against a power with which it is at peace; and also to use like diligence to prevent the departure from its jurisdiction of any vessel intended to cruise or carry on war as above, such vessel having been specially adapted, in whole or in part, within such jurisdiction, to warlike use. Secondly. Not to permit or suffer either belligerent to make use of its ports or waters as the base of naval operations against the other, or for the purpose of the renewal or augmentation of military supplies or arms, or the recruitment of men. Thirdly. To exercise due diligence in its own ports or waters, and as to all persons within its jurisdiction, to prevent any violation of the foregoing obligations and duties. It being a condition of this undertaking that these obligations should in future be held to be binding internationally between the two countries. It was- also settled that in deciding the matters submitted to him the arbitrator should be governed by the foregoing rules, which had been agreed upon as rules to be taken as 168 condensed protocols. applicable to the case, and by such principles of international law, not inconsistent therewith, as the arbitrator should determine to have been applicable to the case. The Joint High Commission then proceeded to consider the form of submission and the manner of constituting a tribunal of arbitration. At the conferences on the 6th, 8th, 9th, 10th, and 12th of April the Joint High Commission considered and discussed the form of submission, the manner of the award, and the mode of selecting the arbitrators. The American Commissioners, referring to the hope which they had expressed on the 8th of March, inquired whether the British Commissioners were prepared to place upon record an expression of regret by Her Majesty's Government for the depredations committed by the vessels whose acts were now under discussion; and theBritish Commissioners replied that they were authorized to express, in a friendly spirit, the regret felt by Her Majesty's Government for the escape, under whatever circumstances, of the Alabama and other vessels from British ports, and for the depredations committed by those vessels. The American Commissioners accepted this expression of regret as very satisfactory to them, and as a token of kindness, and said that they felt sure it would be so received by the Government and people of the United States. In the conference on the 13th of April the treaty Articles I to XI were agreed to. Appendix II. testimony bearing on residence and citizenship. Thomas H. Cooper. This is found i n nis examination: He was born inr., 1836, line Boulton, Lancashire, England; that he left EnglandE6|g371i. in 1854 and came to New York, and has lived in the i to ei. United States ever since; that he went to California in 1859, since which time he has continuously resided in the State of California; that he is a British subject, never having taken out naturalization papers in America. Warren, testifying relative to Cooper's residence (Record, 940, 941), said: Q. He is an American citizen, is he not? A. No. Q. Lives in San Francisco ? E., 940, line A. Lives in San Francisco. 67. Q. How long has Cooper lived in San Francisco? A. Well, he has lived there a number of years. Q. He has lived there about twenty-five years, has he not? A. I think likely. Q. Now, in regard to Mr. Cooper, he is your brother-in- R., 951, line law, is he not? 2i- A. Yes. Q. He has been living in San Francisco? A. Yes. Q. You produced the other day a power of attorney of r., 1267, line T. H. Cooper. A similar question was asked in the Thornton, 65. but not in these cases. Where does Cooper live? A. San Francisco. Q. How long has he lived there, to your knowledge? He is your brother-in-law, is he not? B s 22 169 170 testimony on residence and citizenship. A. Yes. I expect it must be getting close on thirty years. Q. Do you remember the year that he went there? A. No; I do not, exactly, only hearing him talk. I think it must have been pretty near thirty years ago since he went there. Q. Did you marry his sister, or he yours? A. I married his sister. Q. Did he live in San Francisco when you were married? A. Yes. Q. Now, I am going to find out how long ago you were married,- Captain. A. 1873. Q. Was Cooper then living in San Francisco ? A. Yes. Q. And had he been living there for some time? A. Yes; for several years. Andrew J. Bechtel. The affidavit of Andrew J. Bechtel, signed and sworn to in the city of Victoria, on the 6th day of R., 1902, line July7, 18 4, was read into the Record on behalf of the United States: I, Andrew J. Bechtel, of the city of Victoria, in the Province of British Columbia, hotel keeper, make oath and say as follows: 1st. I was born in the State of Ohio, of the United States of America, and I am the brother of M. N. Bechtel, deceased. E'i9^Ex.No! And a certified copy of the bill of sale conveying i, u. s. to Bechtel the City of San Diego, together with an p. 49. ' affidavit made by Bechtel stating that he was a resident and citizen of the United States of America. The affidavit is as follows: District of San Francisco, Port of San Francisco. I, John A. Bechtel, of Auburn, in the county Placer and State of California, do swear, according to the best of my knowledge and belief, that the schooner called the City of San Diego, of San Francisco, in the State of California, is of burden 46 and -rVa tons, and was built at San Francisco, in the year one thousand eight hundred and eighty-one; that I am a citizen of the United States; that my present usual TESTIMONY ON RESIDENCE AND CITIZENSHIP. 171 place of residence or abode is Auburn, in the county of Placer, and State of California; and I am the true and sole owner of the said schooner, and that no subject or citizen of any foreign power is, directly or indirectly, by way of trust, confidence, or otherwise, interested therein, or in the profits or issues thereof. John A. Bechtel. Subscribed and sworn to the 9th day of February, Piife65f 77 1890 (incorrectly printed in the Record 1896, but was changed, by stipulation, in the Record, to 1890). Andrew J. Bechtel was called on behalf of Great R.,i45,Unei. Britain: Q. Where do you reside, Mr. Bechtel? A. In Victoria. Q. How long have you resided in Victoria? A. About twenty-three years. Q. I believe you are married and settled down here? A. Yes. Q. And have a family here? A. Yes. Q. And this has been your home for the last twenty-three years? A. Yes. Q. What business are you now in? A. In the sealing business. Q. How long have you been engaged in the sealing business—about how long? A. I can't say exactly as to months—over three years. Q. About three years, you mean? A. About three years—longer. Q. What was your business before that? A. Hotel business. Q. What was the name of the hotel? A. I have kept different hotels. Q. You were a hotel keeper in Victoria for how many years ? A. For about eighteen. He was recalled, but no testimony was given re- 'fa ' lating to his residence or possessions in Victoria. On cross-examination: R-> 150. Q. Did you have any stores or buildings there from which you received rent? A. I had some cottages. 172 TESTIMONY ON RESIDENCE AND CITIZENSHIP. R., 393, line Bechtel was recalled for cross-examination, but no 67. . ... , . .,| . testimony was given bearmg upon Jus residence in Victoria or elsewhere. Referring to the register of the City of San Diego at the port of San Francisco, the Commissioner on r., 399, line the part of the United States said: "That is not a mere declaration of citizenship, but it is an act of citizenship on his part." R., 1569, lme William Munsie, on cross-examination: 14. Q. Then you bought the San Diego for him, did you? A. Well, he really bought her, but it was left to us to do the business. I believe his boy was ill at the time, and he was living in California. His instructions to us were to buy the vessel for him. E-> 1899, line The naturalization papers of Bechtel when he became a subject of Great Britain were filed as an exhibit and marked Exhibit No. 128, G. B. claim No. 1. Record, 1989, line 64. (Exhibit, p. 401.) Oath of allegiance. I, John Andrew Bechtel, better known as Andrew J. Bechtel, do swear that in the period of eighteen years preceding this date I have resided eighteen years in the Dominion of Canada with intention to settle therein, without having been during such eighteen years a stated resident of any foreign country. So help me God. John Andrew Bechtel. Subscribed and sworn to the 7th day of April, 1892. The certificate of naturalization recites in terms that Bechtel "has duly resided in Canada for a period of eighteen years." The United States claim Bechtel to have been half owner of Carolena at time of seizure August 1, 1886, half owner of Pathfinder at time of - seizure, July 29, 1889, and half owner of Pathfinder at time of "seizure," March 29, 1890. testimony on residence and citizenship. 173 DanielMcLean. It is in evidence that he became a naturalized citi-E^; *£> V- s- f 1 TT ■ 1 a p'a • In 1 C. JNo. lo. zen ot the United states of America on the 1st day Ex.,p.269. of December, 1882. On the 16th of October, 1886, the United States u'^m'Bne not having consented, McLean took out papers declaring him to be a naturalized citizen of Great Britain. On the 7th day of September, 1892, he made anR501821*line affidavit in the city of San Francisco, in which he states that he was a naturalized American citizen and that he resided in San Francisco. On the 8th day of August, 1889, he made an affidavit at Victoria, relating to the claim for the seizure of the Triumph on the 11th day of July7,1889, by the United States 'revenue cutter in Bering Sea. That I am master and part owner of the British schooner Triumph, registered at the port of Victoria, British Columbia. He makes no statement as to his residence. On the 20th of October, Daniel McLean made an R-> 1955, line affidavit in which he states as follows: I, the undersigned, Daniel McLean, of the city of Victoria, in the Province of British Columbia, Canada, master mariner, declare as follows: I am a natural-born British subject, born at Sidney, Cape Breton, in the Province of Nova Scotia, and since I took the oath of allegiance to a foreign State—United States—November, 1879,1 did, on the 16th day of October, 1886, take the oath of allegiance to Her Majesty. On the 16th day of November, 1887, McLean made affidavit at the port of Halifax, Nova Scotia, to obtain the register of the Triumph in his name. ' He said: I, the undersigned, Daniel McLean, of Victoria, British Columbia, declare as follows: I am a natural-born British subject, born at Sydney, in the county of Cape Breton, and have never taken the oath of allegiance to any foreign State. 174 testimony on residence and citizenship. Es^°nj ?• Daniel McLean was owner of one-third of Triumph Ex.76'. ' 'at time of seizure, July 11, 1889. Alexander McLean. He became a naturalized citizen of the United States by order of the circuit court of the United States, district of Massachusetts, on the 1st day of December, 1882. R. 689. B-e sailed out of the port of San Francisco on the Mary Ellen in the year 1883, and was engaged as master of the Favourite at Victoria in the year 1884. There is no testimony in the Record that Alexan- •D <(,-. 1 der McLean ever owned any property, outside of R., 431, line . ..,.»> Jy. r . J ' „ 63. vessel property, in the city of Victoria. He never had a permanent residence there. Alexander McLean testified on cross-examination: Q. And where did you go to then; did you live here? A.. I lived here (in Victoria) from 1884 until 1889, and being back and forward between here and San Francisco at times. The ships in the claims in which McLean is interested were the Onward, seized on the 2d day of August, 1886, and the Favourite, warned from Bering Sea August 2, 1886. Alexander Frank. Exs. p. 207- Alexander Frank made an affidavit on the 1st day 39- of February, 1888, in the city of Victoria, in which he said he was an "American subiect." Ex. 209, line ^ ^ ^ ,. J -, & -, I ,, 28. G. (jr. (jrwynn, his attorney, made affidavit on the 1st day of February, 1888, that he was informed and verily believed that Alexander Frank was an American subject. lv ~T\ testimony on residence and citizenship. Alexander Frank testified on this second: 175 R., 1994. Q. You are an American citizen? A. I am, sir. Fr JB'ranK; swore that at the time that the Lily and the E-» 2000, ^e Black Diamond were registered in the name of Morris Moss (which date is November 10, 188K), "that he was an American citizen." The Record discloses the fact that Frank had busi- R-, 1999, line ness in San Francisco about the time of the seizure of the Lily and the Black Diamond, July and August, 1889. The witness was asked: Q. In November, 1888, were you a resident of Victoria? A. I believe I was. I am not quite positive about the time. I went to San Francisco either the latter part of 1888 or the early part of 1889, and I stayed there for several months. Q. You had a business in Victoria? A. I was liquidating my business in Victoria. Q. Had you started in the new business in San Francisco? A. I became a partner in 1889—the 1st of January. I think, 1889 or 1890. I do not know the date exactly. It was not a new business, but an old-established business. Q. And you have been at it ever since? A. I have been at it ever since. Q. And you can not fix the date when you left Victoria for San Francisco. I do not mean to say without returning occasionally here? A. I returned off and on here for a number of years. Q..Returned for how long? A. Oh. for a week, or two weeks, or a month at times. Q. Could you state approximately the date when this business or store which had been carried on in the name of Gutman & Frank was closed? A. I could not. The only other evidence in the Record bearing upon the domicile of Alexander Frank is in his affidavit, printed on page 210 of Exhibits, which was made on R., 1993, line 50. I $ 176 testimony on residence and citizenship. the 1st day of November, 1887, at Victoria. He said: For two years and upwards one Jacob Gutman had, until the date of his supposed death hereinafter mentioned, been in partnership with me in a trade or business carried on by us at Johnson street, in the said city of Victoria, trading under the name or style of Gutman & Frank, as merchants and Indian traders. The vessels in which Alexander Frank is interested as a claimant are the Alfred Adams, seized on the 10th of July, 1887, and the Black Diamond, seized July 11, 1889, and the Lily, seized August 6, 1889. UNCERTAIN CHARACTER OP SEAL HUNTING. The method for computing an estimated catch, proposed in the opposing Argument, takes into account none of the contingencies which prevent the application of any rule for calculating the probable results of a sealing voyage, f The attention of the High Commissioners is called " to the statements of Daniel McLean, the master of the Mary Ellen in 1886, the operations of which in tliat year are selected by the claimants as showing the usual success of a sealing schooner. He savs in his deposition, which appears in the Record: Sealing a venture.—The conditions for a successful catch R-, 1822, line are so many that while one vessel may take a great many, 3i another with equally as large a crew may secure only a small number. It requires experience, a careful study of the habits of the seal, and a thorough knowledge of their route of travel along the coast to Bering Sea to secure a good catch. I have known vessels to leave port on the same day that I did, with the same number of crew and boats, and at the end of the season I had about two skins to their one. It is the purpose of this portion of the argument to briefly review the principal features of seal hunting and point out more in detail the contingencies and conditions obtaining which remove it from .the field of safe investment and surround it with the elements of chance. Sealing as carried on in the years from 1886 to 1890, from the ports of Victoria and San Francisco, was necessarily hazardous and uncertain. The vessels employed were usually small second-hand schooners ranging from 15 to 125 tons burthen, B S 23 177 178 UNCERTAIN CHARACTER OF SEAL HUNTING. R., 1090, 13, 68 though the ordinary size was between 50 and 100 tons. The dangers attendant upon the voyage of 1,500 miles to Bering Sea, which usually occupied from fourteen to twenty days, and those that surrounded the operations in the sea, together with the uncertainty of profit, never induced capital to invest largely lines in the industry. The perils of a Bering Sea cruise were recognized by insurers in an increase of the premium required for vessels clearing for Alaskan waters, while the speculative character of the occupation is shown by the class of vessels engaged in it, and also by the number of sealers who were employed upon a "lav:" that is, an allowance of a certain per cent of the number of skins secured in lieu of wages, the crew thus entering into the speculation of the owner. These small schooners, leaving the port of Victoria in April, May, or June, made their way northward along the western coast of British Columbia and Alaska or by direct course across the ocean to Unimak Pass, the nearest entrance to Bering Sea. The vessels carried either white or Indian hunters, the majority having the latter, in the years from 1886 to 1889. The boats used by the whites each contained a hunter armed with a shotgun or rifle, or both, a "boat puller," and a "boat steerer," the latter acting in the capacity of another oarsman when not approaching a seal. When canoes were employed,- each was manned by two Indians, one to paddle and the other to strike the animal with a casting spear. It is apparent that when searching for seals a boat had a great advantage over a canoe or a boat with but one oarsman, as it possessed twice the propelling power of the latter. When the weather had become sufficiently modified, a vessel with white hunters lowered its boats, UNCERTAIN CHARACTER OF SEAL HUNTING. 179 which took then* course to the windward, the hunters R-„7608' line keeping a sharp lookout for the animals, and sometimes going 10 or 15 miles in their search, for the boats are often lowered when no seals are in sight. When a seal was seen, much depended upon the hunter's experience and skill. Captain McLean in his examination was asked as r., 423, line to the proper way7 of approaching a seal. He replied, 36' "That depends on the action of the seal at the time. All seals do not act alike. Some hunters can tell how to approach the seal; they can tell, when they see him a certain distance off, whether they are going to get near to him and shoot him; tell by his actions whether he is asleep or awake." If the seal appeared to be awake, the hunter used his rifle at a range of 60 to 100 yards. The shotgun was generally used when the animal was asleep, and could be more nearly approached. If the shot was successful, the long-handled gaff carried in the boat was used in an endeavor to secure the rapidly sinking body. If not killed outright, the hunter continued firing, in some instances a dozen shots being fired at a "cripple," which eventually was lost. Through some peculiar instinct, the animal when wounded starts directly to the windward. In the pursuit of a crippled seal, the advantage which a boat with two "pullers" had over a canoe with but one is apparent. If the schooner carried Indian hunters and canoes instead of boats, the method of hunting was different. Instead of always proceeding to the windward, the canoes went in different directions, seldom extending their operations over three or four miles from the schooner. It is first to be noted, therefore, that the area covered by a vessel manned with canoes was much more limited than when boats with white hunters were employed. As soon as a seal was sighted, and it was determined that he was asleep, the canoe, 180 UNCERTAIN CHARACTER OF SEAL HUNTING. if to the windward of the animal, circled about and attemped to approach him from the lee. If successful, the seal not awaking, the spear was cast when the boat was within 25 or 30 feet. If sufficiently skillful to strike the small, moving mark, the animal was drawn to the canoe by means of a cord attached to the spear head. If, however, the animal was awakened by the approach of the canoe, there was little proba-: bility7 of his being secured, as he would swim away at a rate of speed which precluded pursuit. From the different way in which canoes and boats started out, it is apparent that boats would have an advantage, as the seal has an acute sense of smell, and r., 539, line can detect the presence of a hunter at a distance of three or four hundred yards A canoe with Indian hunters was at a further disadvantage because the seals taken by it were necessarily "sleepers," as the use of the spear necessitated a close approach to insure a successful cast. The Indians who came from tribes along the west coast of Vancouver Island were ignorant and superstitious. Several instances appear in the Record (which will be given more in detail hereafter) where a sealing voyage was brought to an abrupt end through some R-> 307, line superstition or ignorant fancy7 of the Indian hunters line 30-arising from the sickness of one of then* number, the ?}«=«,?'loss of a canoe, a prolonged season of rough weather. line 3; 716, 1 i n R., 308, lin 757, the stubborn determination to return home, or some I other cause which only the Indians themselves could explain. Another peculiarity of the Indian hunters was that they were unwilling to start sealing when there was. fog'gy weather. As fog's are so frequent in Bering- Sea, it is apparent that this fear or superstition ofthe Indians must have tended to greatly modify their efficiency and to reduce their value as seal hunters when compared with white men. UNCERTAIN CHARACTER OF SEAL HUNTING. 181 If the contention made on the part of Great Britain is true, that the locality of seals at sea was limited to a comparatively small area, another important contingency is that canoes and boats from another schooner caused the seals to become wild and difficult of approach. The variations which are suggested by the tendency of the animals to be disturbed by the presence of a number of hunters in the vicinity cause the problem of determining the chances of securing seals still more involved and difficult of solution. The foregoing review of the methods adopted byR-i 3in, nne white and Indian hunters, respectively, has been based on the assumption that they found seals. If, however, their search was unsuccessful, they returned to the schooner, and a new locality 20, 50, or 100 miles away was sought and the hunters again sent out. It is evident from the hazard which obtained inCafeof u. s. sealing and the smallness of the boats and canoes vol.2, p. so! used that the weather became an important factor in n?°nt°J determining the success or failure of the voyage, g. b. Am. There is, perhaps, no body of water on the face of 8 p.'jsn. ' the globe where the meteorological conditions are more unfavorable for fair weather than Bering Sea. Fogs were of daily occurrence, and often, as is R., 1731, line stated by Captain Meyer, the forenoon might be clear ^' ^ooks and favorable for hunting, while the afternoon brought in e v i - a fog so dense that it was impossible to see the length of the vessel. These fogs not only prevented successful hunting, but because of them many boats and canoes were lost. Several instances appear in the Record where hunters were lost, and this danger was perhaps the chief cause why the Indian hunters feared E., iso,_ line to go far from the schooner. Besides the frequency 3-67i'iine of fog, it would appear that the prevailing condition so. of the weather m Bering Sea was such as to keep the water rough and dangerous for canoe and boat and even for the schooner. This fact often prevented the Ill 182 UNCERTAIN CHARACTER OF SEAL HUNTING. hunters from going out and had a material effect upon their marksmanship. John Cotsford, called as a witness by the United States, well expressed the difficulty of the hunter when the sea was in motion : R., 380, line Q. Do you think it nearly as difficult to shoot a seal asleep 67. on the water as to shoot a duck flying with a rifle; which do you think it would be harder? A. I think about the same on the water, because you have the double motion, but I think the bird would be the hardest of the two. At least, I am not so well accustomed to shoot birds as I am seals; therefore, I think birds would be the hardest of the two. Again, upon the same subject, he says: R., 381, line if a man is not accustomed to a boat or canoe, it is a ticklish thing, and a man can't handle a gun very well. The prevalence of stormy weather and changes of wind and fogs are among the principal contingencies which make seal hunting uncertain. It is but necessary to examine the evidence, where a detailed statement of the daily operations of different vessels are given, to show how frequent were the storms which swept across Bering Sea, although in many cases they were not general, but local in character For exam- r., 254, line pie, the Mary Ellen, used as the typical vessel by7 Great Britain for the purpose of computing a "probable catch," was in Bering Sea in August, 1886,- twent\ -nine days, during which time she had fifteen days of weather so rough it was impossible to lower r., 1098, line a boat. The W. P. Sayward during twenty-four days of the same month had but eleven in which her Am. Rep., canoes could be lowered. The Alfred Adams in 1887 543. ' was in the Sea for thirty7 dayrs, during which time she r., 702, line lowered but fourteen. The Triumph in 1888 was in the Sea for a period of forty-five days, during which time there were but seA7enteen when she was able to r., 606, line lower her canoes. The same vessel in 1890, with white hunters, who, not being' influenced by fear of UNCERTAIN CHARACTER OF SEAL HUNTING. fogs, it is to be presumed, lowered in weather which would have prevented Indian hunters from sealing, was in the Sea forty-two days, and in that time had but fifteen which were not too unfavorable for her boats to be used. There is abundant testimony by witnesses produced on behalf of Great Britain that a canoe or boat is lowered whenever the weather is such that it can live. It is apparent how inclement the weather and how rough the sea north of the Aleutian chain. These conditions also limited the success of hunting by having a marked influence upon the seals themselves. If the weather was stormv, it was impossible for the seals to sleep, and if awake all witnesses agree that the difficulty of securing them was largely increased, while for Indian hunters it was practically impossible. On the other hand, after what may be termed for that region a long period of quiet weather, when there had been opportunity to sleep, the seals were restless. Again, if the rain began while the sea was quiet, they were aroused by* it, and the difficulties of the hunters were increased. Atmospheric changes tend to affect the seals and to cause them to be wakeful and alert. There are in then* natures some peculiarities as yet unexplained, and perhaps unexplainable, which caused them to be aroused when the hunters expected to find them sleeping. Hunger is another cause of restlessness, for when seeking its food, the seal is in constant motion, diving, leaping, and forming a most difficult mark for a hunter. From the 20th to the 25th of August the gales, becoming more frequent and increasing in intensity, compelled the cessation of all profitable seal hunting. The tonnage of the schooner emploved in seal- taking materially affected the determination of its season. It is to be presumed, and the Record contains evidence to sustain the presumption, that the 183 184 P. 209. UNCERTAIN CHARACTER OF SEAL HUNTING. master of a small vessel, at the first signs of continued bad weather, ceased operations and started toward the Aleutian Passes. Having summarized briefly the contingencies which particularly appertain to the hunters and the seals, it is proposed to examine the other conditions which tend to modify the results of a sealing voyage, and to place the question of its profitableness beyond legitimate speculation. It is apparent, considering the class of men who were employed as seamen and hunters upon sealing vessels, and especially when the latter were Indians, ignorant and difficult of control, that the character and experience of the captain became an important factor in determining the success of the cruise. Mutinous, willful, and superstitious, an Indian crew demanded experienced men to manage them. The selection of hunters, either Indians or "whites," so important to the success of the voyage, depended largely upon the knowledge and experience of the master. In Bering Sea his sagacitv in determining from observation whether it was probable or not that seals were sufficiently abundant in the vicinitv to warrant the boats or canoes being lowered, was important in determining the number of the vessel's catch. Another modification which affected the results obtained was "luck." That there is any7 certainty7 of finding seals hi sufficient number to insure a profitable voy7age, or any locality where seals may be always found, is denied by' the United States, and has been discussed in that portion of this argument which deals with the so-called "sealing grounds." Having considered the conditions and chances which make uncertain the success of a sealing voyage in Bering Sea, it is proposed to refer to the evidence relied upon for the statements made, classifying the testimony as far as possible under the UNCERTAIN CHARACTER OF SEAL HUNTING. 185 heads into which the subject naturally divides itself. The witnesses Capt. Alexander McLean, Charles E. Rayhor, and E. P. Miner, witnesses sworn on behalf of the United States, together with Mr. Alexander, of the United States Fish Commission, have given evidence so complete and comprehensive that it is deemed advisable to insert their statements as a whole, merely annotating the testimony. The examination of Captain McLean upon this subject is as follows: Q. Will you please tell us, as to the large catches of seals, R-, 422, line what is the condition of seals in these large catches; are„17- . they running or asleep ? seals""1 A. Mostly asleep. Q. Do you know of any large catches being made of running seals—seals awake, we will say? A. They kill a good many seal that are awake. Q. What are the chances of losing an awakened seal? A. There are a good many chances. Q. I suppose a sleeping seal you come up upon very close, so they can be gaffed before sinking? A. Yes; sometimes, and sometimes they get away after Wounded being shot. seals. Q. Even a sleeping seal? A. Tes, sir. Q. And if the seals are awake, is the-distance longer from which you must shoot? A. Tes, sir; but sometimes you get a chance shot when they are very close to the boat. Q. That is rather exceptional, is it not? A. Very rare. Q. Now suppose there are an abundance of seals in the sea at the place where you are, in your ship or schooner, does it follow that merely because the seals are there you will get them ? A. No, sir. Q. Do you know in the matter of sealing whether theDifflcnlty of scent of your approach has anything to do with awakening approach, the seals? A. Oh, yes. Q. How far will they scent the approach of a man, in your experience? A. They can scent a man or a boat further than they can see. B s 24 186 UNCERTAIN CHARACTER OF SEAL HUNTING. Direction of Q. So that in approaching does the direction of the wind the wind. ^a,ve anything to do with it? A. Yes, sir. Q. And how do you approach, when you can do it, in hunting for seals ? A. Generally approach from the leeward. If they approach from the windward sometimes they have to take chances. Chanceof es- q. What is the effect, if they note the approach of man, oape- upon the seal herdl A. They will wake and leave. Q. How fast will a seal make way to escape? A. Well, it is pretty hard to say. They can travel fast for a short distance. Q. And what average rate will they keep up? A. Well, if they want to, they can go faster than a boat. Q. And keep it up all day? A. Not all day; no, sir. Q. Their food supply is fish, is it not? A. Yes,, sir. Q. Do you find fish in their stomachs? A. Yes, sir. Q. And what sort of fish? A. Well, there is salmon and different kinds of small. Q. They catch them in the Sea? A. Yes, sir. Proximity of Q. Now, the passing of other boats, and the use of guns, other ves- what effect does that have upon the school, if you find them ? seis. ^ jf there is much shooting going on it makes them wilder. Q. If another ship has passed over or shooting is going on they are awakened ? A. Yes, sir; if vessels are around they get wild. Q. It they get wild can you get them ? A. Some, but not as many as if they had not been frightened. Chance of es- Q. And I think you have already stated that where they cape. ar6 already awakened, and shot at a distance, there is danger of losing them ? A. Yes, sir; sometimes they get away from new men after being shot. Q. And they will sink? A. Well, they get away, and probably they may die afterwards. Rain. Q. What effect has rain upon the seals when you find where they are—heavy rain ? A. Well, heavy rain disturbs them; it depends on the UNCERTAIN CHARACTER OF SEAL HUNTING. 187 weather that they hadUbefore the rain came. If it has been fine weather, it will disturb them more; they will not rest so well. If it had been blowing before the rain they will sleep pretty well. Q. Does the awakening of a few of the seals, the disturb- Proximity of ance of a few, tend to awaken the others? s- A. Well, that depends on the distance they are apart. Q. Although a man may be a good shot at a mark, or shoot- o?6jJunter° ing game on land, does the question of the experience of a man in hunting seals have anything to do with the number he gets when he finds seals? A. Yes. Q. In what way? A. In the way he approaches a seal before he shoots him. CJ. Give the Commissioners some idea of the way. A. All seals don't act alike; some act different. A man has got to have considerable experience. It takes probably three or four months before he understands how to approach a seal properly. Q. And what is the proper way, from your experience, to approach a seal? A. That depends on the action ofthe seal at the time; all seals don't act alike. Some hunters can tell how to approach the seal; they can tell when they see him a certain distance off whether they are going to get near to him to shoot him; tell by his actions whether he is asleep or awake. Q. So that determines the distance you will go near him? A. Yes. Q. And of course if you shoot him at a long distance you ^^g run the danger of losing him entirely? A. Depends on how you shoot him. If he is badly wounded, you may get him. Q. Now, when you are where the seals are, what effect does eatlier- the weather have upon the seals, even if your boats will live in the sea? A. Well, if it had been fine weather and the seals were rested pretty well, and if there was bad weather approaching the seals get restless. Q. The coming storm makes them restless? A. Yes, sir. Q. That is a modification of your chances to get seals? A. Yes, sir. Q. And what is the habit of the seal when he becomes wild before a storm; how does he appear differently when not disturbed? A. Well, he moves. Q. Has the experience of the captain of a vessel anything Experience to do with the size of the catch for the season? of oaPtam- II W,£] 188 UNCERTAIN CHARACTER OF SEAL HUNTING. A. That is very hard to say. Q. The experience of the captain in sealing? A. I do not wish to state that. Q. Is that because of your modesty? A. No; I have been at sea a good deal Q. But I would like to know. Let me see; has the captain's judgment, because of his experience in seal hunting, anything to do with the way the vessel should approach the seal herd? A. It has; he will have the vessel properly equipped and a good crew of men aboard. Q. Has the selection of the crew anything to do with it? A. It has a great deal. Captain Raynor's testimony is as follows: R., 524, line Q. What part of the sea did you hunt in in these various '•j jp 65. years? A. No particular part; wherever I found seals. Q. Did you go sometimes to the westward of the rribilof Islands ? A. Yes; sometimes to the westward and sometimes to the eastward. Q. To the north? A. No; to the northeast end, not to the north exactly. Q. And to the south? A. Yes. Chance in Q- From your experience in the sea, will you state whether finding you did find., in L887-88, that the seals were to be found in seals. the same place that you had found them in 1886? A. No, sir; they were not; I never found successive years that I found seals in the same place. Q. In looking for seals out there you have to take your vessel around various parts of the sea to come across a bunch of seals? A. Yes. Condition of Q. You do not hunt seals in herds, do you? They are seals. found in small bunches, are they not? • A. Mostly; I found them by two or three at a time. Q. There is no such thing as running across thousands of seals and being able to kill any number of them in a short time? A. No, sir; I never found it so. Q. Seals are hunted individually more than collectively, are they not? A. Yes, sir. Proximity of Q. And they are found in bunches of two and three and of otherseais. bunches often and eleven together? V UNCERTAIN CHARACTER OF SEAL HUNTING. 189, A. Sometimes you see them in large bunches. Q. But they are generally awake, and you can not get to them? A. They have what we call lookouts, and are on guard when in herds. Q. When seals are awake, it is harder to approach them, Difficulty of and, of course, harder to kill them? approach. A. Yes, sir. Q, The majority of seals are shot when they are asleep, are they? A. Yes, sir. Q. Now, to enter into the matter of taking seals, what are the conditions which would modify the number which can be killed? A. Well, the state of the weather. If it is raining or strong weather, winds or anything of that kind, the seals do not sleep very well; and in a strong breeze of wind you can not get on to them. Q. Do they scent you? A. If you get to the windward of a seal, they scent you at Direction of a long distance. wind. Q. For that reason it is better to approach the seals from the lee side? A. Yes; from the leeward, when the wind is blowing from the seal to the hunter. Q. What other condition modifies the result when seal hunting? A. Well, a great deal depends on how the hunter decides Experience to get at the seal. of hunter. Q. Does the experience of a master have anything to do Experience with it? of captain. A. Yes, sir. Q. Explain to the Commissioners why that enters into the modification of the result in seal catching. A. Well, the master has to do with looking the seals up, and, after he sees them, keeping his vessel in position and sending the boats in a certain direction, and so on. Q. Has the matter of handling a crew and selecting a crew anything to do with it? A. Yes, sir; it has a great deal to do with it—whether you get a good crew or a bad crew. Q. Captain Ogilvie had never been in the Sea before, as' far as you know? A. As far as I know, he had never been in the Bering Sea before. Q. Sealing? A. Nor never did any sealing there, as far as I know. Ik 190 UNCERTAIN CHARACTER OF SEAL HUNTING. Proximity of Q. The question as to whether or not there are several otJie?r ve8~ vessels in a good locality, has that anything to do with the result? A. Yes, sir, of course; the more boats there are around, either with shooting or with spears, it wakes the seals and keeps them moving, and you would not get as many as if you were alone. Chance of Q. A seal can travel faster than a man could row in a boat escape. or tnat a canoe could paddle? A. Yes, sir. Q. Or even faster than an ordinary vessel with an ordinary wind could travel after them? A. Yes, sir. Q. And they could keep up that rapidity of movement for such a long time as to escape their pursuers, could they not? A. Yes, sir. Q. Have you observed what the seals feed upon? A. Yes, sir; they feed most upon fish and squids and shrimps in different localities. Q. These fish travel from one part of the sea to the other in the same season? A. No, sir; the fish shifts, and also the seals shift with them. Q. That is what I asked you; I asked if they travel after the fish? A. Yes, sir. Q. From your experience of your three years in the Bering Sea, do you think that you would be able to estimate the number of skins that a vessel would take in the year 1887 going into Bering Sea? A. No, sir; I do not. Captain Miner in his examination made the following statements: R., 538, line 1 H Ws§i , 43. Q. Now, when you went into the sea in the Penelope, did you come upon large number of seals at times ? A. You mean in sight from the vessel? Q. Yes. A. I suppose I have seen bunches of 20 or 25 seals. p. . Q. And in your boats ? ffnding A. I have seen the same bunches laying around. We do seals. not estimate the number of seals around by one bunch. We used to run across them. Q. One bunch would indicate that there were other bunches near? A. Yes, sir; on the feeding ground of seals. UNCERTAIN CHARACTER OF SEAL HUNTING. 191 of other seals. Q. A. Q. A. Q. A. Q. of Q. Do you find it to occur as an ordinary or exceptional Condition occurrence, that when there are abundant seals on the of 8eals- grounds you sometimes can not get them? A. I have seen that so. I have seen it more difficult to get them when there was an abundance of seals than when they were more scattered. Q. You could kill in a segregated bunch easier than youproximity could in a large bunch? A. Yes, sir. What is the difficulty about that? They do not sleep when they are together. They are disposed to play? Yes, sir. And when awake is it less easy to get them ? It is very much more difficult to get them. Is there any larger proportion of seals lost after being Chance shot when they are awake? escape. A. Yes, sir; of awake seals a large proportion are lost. Q. Why is that? A. Because they are standing up in the water and shot in Lo.st °y sink- the front while looking at you. They fall on their back then, ln*=' and I understand that the air comes out of their body, and they sink tail first. Q. And go out of sight and are lost? A. Yes. Q. They don't come up again? A. I never knew of one to come up; a dead seal will sink like a stone. Q. You never knew of one to come up? A. I always understood it that way. When the wind is out of them they go down like a stone, hut if they are shot from the back they float quite a while. Q. And they are shot from the back when asleep ? A. Yes, sir. Q. When you approach them as they are-awake theyUi®(ralt3r of usually are fronting you? ' approach. A. Yes; because most of the time if they know you are about they try to look at you. Q. Do the seals scent a man? A. Yes, sir. Q. At what distance? A. I think at an extraordinary distance. Q. Beyond the sight of the vessel? A. Oh, no, sir; but I should think at least300 or 400 yards. Di£.^*jon of Q. Is there any special method adopted because of this in approaching a seal? A. We always approach from the leeward. That is, if we wind. 192 UNCERTAIN CHARACTER OF SEAL HUNTING. Experience of hunter. Chance of loBins. are to the windward of the seal we are careful not to pass her that way. Q. Now, Captain Miner, out of a body of seals awake, what proportion of them that are killed are lost? A. It depends a great deal on the man who shoots them. Q. Do you shoot them at some distance when they are awake? A. If you shoot them at a long distance, I think fully half would be lost. W Fully half? A. Yes. sir: that is. when wa till Q.+. a. ir.no- distance. Yes, sir; that is, when we kill at a Ion R., 524, line 4. Seals awakened. Atmospheric changes. Skill of hunters. Q. Now, Captain Miner, will you please state whether the . firing of the guns will awaken the seals? A. It does very much; yes, sir. Q. Does it tend to make them wild? A. Yes, sir. Q. And do they run from the ship or from the boats when the guns begin to fire? A. They get away from the boat that is firing as fast as they can. Q. And they can go faster than a boat can be pulled by an oarsman, can they not? A. Yes, sir. Q. So that the guns awaken them, and the seals that are near enough to hear the guns, to be frightened by them, make way. A. I think atmospheric changes have a great deal to do with it. Some days they apparently sleep very soundly, do not awake easily, and others they are very easily disturbed. Q. And then they are restive and run? A. Very. Q. And get away? A. As soon as they can. Q. Now, is it a fact that, taking the season of July and August, you get a very small proportion of the seals you see, taking the sealing season from beginning to end? A. Yes, sir; there is a great differencein different men who hunt about that. I have carried men with me who I don't think would average one in ten of what they saw; other men would get nine out of every ten that they saw. Q. You yourself rarely lose a seal when you get after him ?' A. If I get close enough to shoot him. Q. You usually get a seal when you shoot him? A. Yes, sir; usually. Q. So that you get a very large proportion of the seals you shoot? UNCERTAIN CHARACTER OF SEAL HUNTING. I don't like to take chances in their getting 193 A. Yes, sir away. Q. And one of the reasons you get so large a proportion is your familiarity with the hunting of seals, so that you do not shoot if the chances are against your getting a dead seal? A. Yes, sir. Q. Have you noticed that storms suddenly coming upwind, awaken the seals and make them restless? A. Yes ; even a small breeze, I think, makes them more restive than anything else; the beginning of a storm coming up. Q. In that case they are awakened? A. Yes, sir; I have noticed a great many instances when there are a great many seals in sight in different places; have seen them every few minutes; and when a light breeze sprang up there was not a seal to be seen. Q. And of all those seals in sight you would get no more? A. Yes, sir; they disappeared. Q. And have you noticed that a heavy rain will awaken Rain, seals? A. Yes, sir; they will not sleep at all in a heavy rain; they will roll and play. Q. What are the chances of getting seals in sight when they are in that condition ? A. The chances are against getting them; one has to work very cautiously. Q. So that the large catches are made of the sleeping seals? A. The largest catches are made in calm weather of sleeping seals. Q. What have you to say, Captain Miner, as to this prop- Chance of osition ? You seal in Bering Sea at a given point of latitude f in d i n g and longitude on the 8th of July, we will say, 1886, and you find seals in plenty and good hunting. Does it follow that you will find seals at the same season of the year another year in the same latitude and longitude? A. No, sir, it doesn't. Mr. Alexander, whose investigation relative to fishing and seal hunting in Bering Sea for a period of eight years makes his testimony of value in connection with the present subject, testified as follows: Q. And from your experience, what conditions would you r., 473, line say modify the number of seals taken by vessels? 46. b s 25 • ' 194 UNCERTAIN CHARACTER OF SEAL HUNTING. • Experience A. The condition of the weather would enter largely into of captain it, and the skill of the hunters, the previous experience of and hunt-tne captain and the executive ability in regard to handling crews, particularly those made up of Indians, and the chances of catching seals and possibly remaining among them when found. I mean of finding seals, and of remaining among them when found. Proximity of Q. What would you say as to other vessels being in the- other ves- vicinity ? seis. ^_ t^ large number of vessels being in the vicinity would lessen the chances of each vessel taking seals. Weather. Q. And what would you consider favorable weather for sealing. A. Favorable weather would be clear, or a comparatively sky and a smooth sea and a gentle or a very moderate breeze. Q. Does the weather previous to a clear sky modify the catch at all in any way? A. The weather previous? Q. Does the weather previous to a clear spell affect the catch ? A. Yes, sir. Q. Explain that, please. A. For illustration, there has been a good deal of wind blowing in any direction for three or four days, and the seals are tired out. They will naturally sleep more soundly at the end of the gale of wind than otherwise. Take it on the other hand, when seals have been resting for a long time—Imight state it this way, that in a heavy gale of wind seals do not sleep very soundly, and possibly will not sleep at all unless they have been tired out by previous exhaustion by a series of gales, something which has interrupted their sleep, but in cases where they have been interrupted by wind and weather they will sleep under conditions which they would not otherwise do. Q. That is a fact, Mr. Alexander, is it not, that not only the weather of the day on which a lowering is made affects a catch, but also the weather that has previously been bad? A. Yes, sir. Q. And what would you consider unfavorable weather for sealing, beside the mere fact of being unable to lower your boat on account of rough water? A. Well, at times very foggy weather interferes with the lowering of the boat, and sometimes heavy rain will interfere; that is, it won't interfere with the lowering of the boat, but the chances are unfavorable for catching many seals when it is raining very hard. UNCERTAIN CHARACTER OF SEAL HUNTING. 195 Q. Why is that? A. Because the heavy rains ofttimes cause the seals to Rain, become restless. They don't sleep soundly, and they are hard to approach. Q. What would you say, from your knowledge and experience, as to the weather in the sea? A. It is variable. Q. Is it variable in different localities in the sea? A. It is. Q. Can you illustrate that in any way? A. I can illustrate it by a cruise I made in the Louis Olsen, before spoken of, during the month of August. A larger portion of it we were to the west and northwest of the Seal islands, or the Pribylof Islands, during which time we only lowered the number of days which I have meutioned; and nearly all the time, if not quite all the time, two degrees south, or two and a half, as the case may be, down at what they call the Bogosloff Grounds, there were lowerings made every day, and a large number of seals were being taken, while we were in gales of wind nearly all the time. Q. Now I will repeat the question. What would you say r 476, line to zones of good weather, and zones of bad weather? 25. A. I think there are zones of good weather and zones of We ather bad weather. zones. Q. What would you say as to any particular locality for fair weather? A. There are no known spots so far as I know where it is absolutely certain to find fair weather, or absolutely certain to find foul weather. They vary according to the circumstances. Q. Is there any locality where seals can always be found Chance of in abundance? finding A. I know of none. seals' Q. In your experience of two years, did you find seals at the same place? A. We found seals', but they were not always of the same number, or equally abundant one time as another; they varied. * * * * # Q. Mr. Alexander, will you state what reason you would R.,477,line 1. give for the abundance of seals at a certain place and a certain time, and their not being found at another? A. Oh, largely to the migratory species of the fish which they subsist on. Q. What is their food? A. Their food consists of cod, in a measure, salmon, squid, medusee, and floating Crustacea. 196 UNCERTAIN CHARACTER OF SEAL HUNTING. Q. You would say practically they are surface feeders ? A. They are practically .surface feeders. Q. And the species of fish migratory? A. Migratory. * * # # # Proximity of Q. What would you say as to the number of vessels in a other ves- certain locality affecting the catch? A. I should thiuk that a large number of vessels in a locality where seals were fairly abundant would have a tendency to lessen the individual catch. Q. Why? A. Because seals are very timid, and the more boats there are on a given ground covering a small or large area, as the case may be, would have a tendency to frighten them. It does frighten them; they are harder to approach—less easily obtained. Condition of Q. Now, from your knowledge of sealing in Bering Sea, seals. even if you possessed the data as to the number of hunters, their skill, the experience of the captain, and the conditions of the weather, locality of the vessel, and the proximity of other vessels, do you think there is any basis upon which the probable catch of a vessel for a given period of time could be predicated ? A. I do not. Q. In connection with your duties on the Fish Commission, have you studied the habits of migratory fish in Bering Sea that you have spoken of? A. Yes, sir. Q. How many years have you made a study of those? A. I think it is eight years since I first went there. Besides the testimony of the four witnesses given above, the evidence relating to this subject is as follows: The first citation is an abstract read into the Record from the case of the United States submitted to the Tribunal of Arbitration at Paris. It relates particularly to the difficulty the hunter experiences in approaching a seal and securing it after being wounded. R., 273, line This is self-evident, when the fact is taken into considera- 30" tioti that the boat is in almost constant motion, and the mark is the small head of a seal, among the waves, 30,40, 50, or, when a rifle is used, even 100 yards from the hunter. Four other conditions also modify this possibility of loss: First, the state of the weather, for if the water is rough the UNCERTAIN CHARACTER OF SEAL HUNTING. 197 boat and the seal having more motion the percentage of those killed or stunned by the shot is much less than when the sea is smooth; second, the condition of the seal shot at, for if breeching, the shot being at the body is not liable to paralyze the animal, though it may be as fatal as when the seal is asleep on the water with only a portion of its head exposed as a mark; third, the skill of the hunter is also to be considered; and, fourth, whether or not the seals are wild and hard to approach, in which case the hunter is from necessity compelled to fire at long range. A second citation from the same document treats of the difficulty of securing the animal after it has been killed. Besides those lost by wounding, in many cases others R., 273, line killed outright are not taken, because the specific gravity of 61. the seal being greater than water, it sinks before it can be secured. In order to save as many sinking seals as possible, each boat carries a gaff with a handle from four to six feet long, with which to grapple the carcass, if the point where it sank can be reached in time to do so. Of course, in securing a sinking seal much depends on the distance from which the seal was shot, the condition of the water, whether rough or smooth, and whether or not darkened by the blood of the animal, as also the skill of the hunter in marking with his eye the place where the seal sank. It can therefore be seen that the range of possible and probable loss, in case the seal is killed outright, is certainly large, though not so great as when the seal is wounded. The above citations relate particularlv to the experience of the hunter, aud the following testimony is upon the same subject. William T. Bragg, called on belialf of Great Britain, testified: Q. Now, witness, does it make any difference about theE.,265,line6. catch of a vessel, the capacity, and experience of the hunters? A. It does. Q. What other contingencies are there, witness, that youR-, 265, line know of, that would make a difference in results of one **■ hunter as against another, or of one boat as against another? A. I do not understand your question. Q. What facts that you know of arise, which make a difference in the catch of one boat as compared with.another, except the scarcity or plentifulness of seals? 198 UNCERTAIN CHARACTER OF SEAL HUNTING. A. Well, some hunters are superior to others, and thenj again, it depends on your boat's crew. Q. Your vessel's crew, you mean ? A. The crew of the boat. Q. Of the small boat? A. Of the small boat; yes, sir. Q. What do you mean by that? What would depend upon the crew, as to whether they could reach the seal or not after it was shot? A. It is in chasing a cripple, or in getting over more ground. A good crew can get over more ground in a day than a poor crew, and the more ground you go over the more seals you are liable to get. J. D. Warren testified as follows: R., 288. line Q. Does the result of the sealing voyage depend, to any 39. extent, on the experience of the hunters? A. Oh, yes. Captain McKiel, testified: R.,_327, line q_ js jt an advantage to have three men in a boat? b0'' A. Yes, sir. Q. And you would not have such good results with two men in a boat? A. Well, no; three men do better work than two men. Q. One of them pulls the boat, one of them steers the boat, and one of them shoots? A. Well, yes; the steerer's work is to get up on the seals; he steers the boat up on the seal. Q. And outside of that time he also pulls? A. Pulls or pushes. Q. Is it a fact that sometimes the puller or steerer, or both, shoot? A. Never to my knowledge. Q. But where there are three men in a boat, it gives the hunter better opportunity to shoot than where there are only two ? A. Yes; the hunter has a better opportunity. Q. And it is to be expected that he will have better results? A. Exactly. Capt. W. E. Baker, gave the following testimony: R., 727, line Q. Now, does it make any difference in the result as to 58. whether your hunters are experienced or not? A. Yes, sir. UNCERTAIN CHARACTER OF SEAL HUNTING. 199 Q. And, therefore, a man with three years' experience, if he was a good shot, would get more seals than he would in his earlier years? A. Yes, sir. Q. Well, admitting, then, that their hunters had not as R., 789, line much experience as your hunters, would you say that it W- would be fair to base the catch of the other vessel on what you did? A. No, sir. As to the experience of the captain, the witness Bragg, testifying in regard to the Mary Ellen in 1886, stated: Q. Do results depend any on the capacity of the master R., 265, line of a vessel as to his experience in the manner of locating? 52. A. It does. Q. And the Captain of your vessel, Daniel McLean, was one of the most experienced inen in the business? A. He was. Captain Baker said that the skill of the captain in R-> 728> Une some degree entered into the probabilities of a catch in Bering Sea. Capt. C- N. Cox gave the following testimony: Q. Is it not a fact, Captain, that a man's skill as a captain R^2608' line and his reputation depend on the success he has in handling his crew of hunters and aeamen? A. Oh, yes; to a certain extent it does, Q. And by handling his crew with success, you mean managing them so that you can get the best results? A. Yes. Q. You were asked by Mr. Warren as to whether there R-> 612> line 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 kuows how to handle his men, there is not much chance about it, is there? A. I consider the chances are whether the captain stays among them and gets them or not. Q. If you once find seals the captain's duty is to keep among them ? A. Yes, sir. I K 200 UNCERTAIN CHARACTER OF SEAL HUNTING. Q. And 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. ■ A portion of this extract is cited in the Argument on behalf of Great Britain to establish the certainty ^ „„„ ,. of securing" seals. It is needless to say, in connec- R., 613, line. ... y-i •. i ,i *V i 19. tion with tne witness s statement that the seals are found "scattere'd about," and "three or four, or two" together, "very often one," that the chances he refers to are sufficiently numerous to make the probable success of staying among them very uncertain. The capacity of the hunting power of a canoe depends in a measure upon the number of skilled hunters it contains. Upon this subject J. D. Warren testified as follows: R., 280, line 24. Q. And how many of them hunted? A. There were not always two hunters; sometimes there was merely a canoe steerer and an' experienced Indian hunter. Sometimes there would be two experienced hunters in the canoe. Q. How many, all told, in the canoe? A. Two. Sometimes they would be both experienced hunters, and one would paddle and the other one would strike (spear) the seal, or sometimes they would both strike the seal. Q. And actually hunting in each canoe, how many were there? A. Two. Q. But you say that one had to paddle and manage the canoe? A. Well, sometimes, if they came on two seals, both would strike. Q. But, as a rule, one was to manage the canoe and the other to hunt or strike the seal ? A. Yes. Q. What you mean by there being two hunters is that they both had spears and were prepared to hunt if they got the chance? A. They were both practical spearsmen. Although in some instances guns were used by Indian hunters, yet it appears from the evidence given V UNCERTAIN CHARACTER OF SEAL HUNTING. 201 by William D. Byers that they were not skillful in their use in the years 1886 and 1887. The witness testified: R.,324,iine9. Q. You were asked something about the difference between white men and Indians. I simply want to ask you this question: In 1886 and 1887 were the Indians in the habit of using guns at all ? A. No. Q. So if you had an Indian crew at that time you would have to use spears? A. Yes, sir. Q. At that time which were considered best, spears or guns? A. Guns. The unreliability of the Indian hunters and the difficulty which attended their employment as hunters because of then* ignorance and superstition receive a complete demonstration from the evidence. Alexander Reppen, called as a witness on behalf of Great Britain, being questioned as to the reasons for the Grace leaving* Bering Sea in 1886, s*ave the fol- lowing" testimony: Q. And when did you leave the Bering Sea ? A. We left on the 14th or 15th of August. Q. Why did you leave on the 14th or 15th of August? A. Well, Indians wanted to go home. Q. Did they object to remaining any longer? A. They were afraid, I think. They objected to staying any longer. Q. They were not used to going to Bering Sea, I suppose? A. No, sir. R., 307, line 10. Again, at another place in his examination, same witness said: The Indians don't go out in foggy weather. the R., 308, line * 23. Q. Is it not a fact that before you came out it was blowing u., 310, line pretty hard, and that was the reason the Indians wanted to 30. get away? A. Yes; the weather commenced to be a little bad. Q. Are not the Indians very superstitious? B s 26 202 UNCERTAIN CHARACTER OF SEAL HUNTING. A. Yes; they are as a general rule. Q. And if they want to go away do the captains have to go? A. Yes; to humor them. It is of no use to go against them. Q. Is it not a fact that the season was practically ended on the 15th August that year? A. If we had had white men we could have stayed longer. Capt. William Cox, relied upon by Great Britain, gave the following testimony: R., 757, line Q. Why did you leave on the 15th of August? 35- A. The Indians would not work any longer. Q. And you left on the 15th of August? A. Yes, sir. # # # # # Q. And the Indians mutinied and would not work? A. They would not work. Q. What was the matter with the Indians? A. They wanted to go home. Q. Did you have to go home? A. Yes. Q. Was there any talk of seizure in 1890 ? A. No. R., 758, line Q» When you say the Indians wanted to go home, what 55. did they do ? A. They broke their spears up and threw their paddles away. Q. Was there any use staying any longer? A. No. Q. How was the weather getting when that happened? A. It was getting better. And again in dealing with the general question of the difficulties to be met by a captain who has employed Indian hunters, he testified: R., 762, line Q. An Indian is usually ready when he is off sealing to 37. make what money he can, is he not? A. Yes, sir; when he is out there, but when they take a, notion in their heads money won't stand in the way. Q. The only notion you know they took in their heads was they wanted to go home because of dirty weather ? A. Well, as I say, there was one sick Indian aboard; the Indiaus were all afraid he would die and be a sort of Jonah. UNCERTAIN CHARACTER OF SEAL HUNTING. 203 Q. They are superstitious about that, are they not? ' A. Very. The condition of the seals as affecting the results of a voyage are referred to by several witnesses. Among Rtj 608, line them C. N. Cox gave the following testimony: 37- Q. Just tell the Commissioners—you have had considerable experience in sealing—when you are out sealing how many seals are there in a bunch that hunters go after ordinarily; how do they travel? A. Oh, we lower very often and we don't see seals at all. When the day is fine enough to put our boats out we lower whether we see seals or not, when we consider we are on the ground for seals. . After referring to a single instance when he saw a large body of seals off the Columbia River, the witness was asked: Q. You never saw any in Bering Sea in such crowds as R., 608, line them? 60. A. I have seen quite a number of seals from the vessel, but I don't know that we ever lowered expressly for that purpose. Q. You don't want to be understood as testifying that boats go out into a large herd of seals and catch them right and left? A. No, sir. Q. They take them up separately? A. Yes; one and two together—three. Again, referring to the way in which the hunting is done, the witness gave testimony: Q. They [the canoes] circulate about the boat, and whenR.,609,iine3. they find a seal sleeping, traveling, or breeching, whatever he may be doing, they kill it. A. Yes, sir. Q. Then they go searching for another? A. Yes, sir. Q. It is a fact, is it not, that when there are a large number of seals traveling together, they have seals on the edge of the herd that keep an outlook, and it is very hard to approach them ? 204 UNCERTAIN CHARACTER OF SEAL HUNTING. A. Yes; when they are sleeping, a large number together, they are much more difficult together than if sleeping singly. Q. Then it is a fact that if they are more abundant in the neighborhood of the vessel it is harder to get them? A. I do not think so. Q. Where there is a large bunch of seals asleep they always have outlookers"? A. There is generally one or two awake. Q. They make a noise and others are aroused? A. Yes, sir. on his redirect examination the witness was Up asked: R., 613, ..\i;'{-, R., 613, 12. R., 613, 31. line Q. Do seals herd together, as Mr. Warren suggests? A. I have never seen them that way. line Q- Coming back to the point about the seals being all in a herd together, is that the case at all in the months of July, August, and September? A. I have never seen them in that way. Q. How do you find the seals then? A. Scattered about. Q. On certain grounds? A. I seldom find them on the same grounds. Q. How many will you find together, as a rule? A. Three or four, two, very often one. Q. And this idea of large herds with watchmen to keep the pelagic sealer off, is there any of that kind in Bering Sea? A. Not in my experience, line Q. Did you ever meet a mass containing as many as 25 seals close together in Bering Sea at once? A. No, sir. Q. You meet them in scattered numbers ? A. Yes, sir. Thomas H. Brown, sworn on behalf of Great Britain, on cross-examination was asked if he had made an affidavit, a copy of which appeared in the proceedings of the Tribunal of Arbitration at Paris. He replied that he had, and that the statements contained in it were true. Paragraph 8 of the affidavit contains the following': R., 652, 51. line I am sure that I don't shoot at one out of fifty seals that I see; probably not one out of a hundred. UNCERTAIN CHARACTER OF SEAL HUNTING. 205. Capt. W. E. Baker, testifying as to the modifica- k^.728, line tions which enter into the catch in Berjng Sea, stated that "the seals are wilder sometimes than at other times." Giddine: C. Gerow testified: You may be amongst lots of seals and not kill any. His examination also contains the following*: R., 1499, line 15. Q. You were going to tell us that there were many seals R., 1499, line around the boat and that you could not get any. What 24. observation have you to make about that? A. I was merely going to say that you might be in sight of hundreds of seals and you could not possibly get one. Q. Why? A. On account of the wind, and on account of, sometimes, their traveling; and you may see thousands of them and you can not get a seal. Q. There may be seals all about you and you could not get any of them? A. Yes. The importance of the weather in determining the success of hunting in Bering Sea is referred to by several witnesses. Alexander Reppen, already cited, testified as follows upon this subject: Q. While you were in the sea were there many calm days? R,, 310, line 65. A. Not very many. R., 311, line Q. Did you have worse weather [in August] than you did 50- in July? A. Yes. Q. Did your sealing end about the 10th of August? A. About that time, I think. Q. You went out of the sea on the 15th of August? A. Yes. Q. You stated that you were there several days waiting for good weather, did you not? A. Yes. Q. And the good weather did not come? 206 UNCERTAIN CHARACTER OF SEAL HUNTING. A. No. Q. So you went out of the sea? A. Yes. Q. It was bad weather; that was the chief reason why you left the sea? A. Yes. The witness, C. N. Cox, to whom reference has been made, was asked: R., 608, line Q. You did not think that because you take seals in one 15> part of the month that that is any indication that you would take them in another part of the month? A. A great deal depends on the weather. Bearing upon the weather conditions, and especially upon the frequency and density of the fogs which prevail in these waters, is evidence relating to the common occurrence of the loss of canoes while hunting. 750, line Captain Laughlin McLean said that he picked up, four canoes which had been lost from another vessel. Captain McKiel testified that during his voyage in 1889 he lost three canoes about the 13th of August. He was asked, "Was that with the men in them, or did they simply go adrift?" and replied: "The men went adrift; we lost them in a fog." Gustav Hansen stated that during the cruise of the Adele in 1888 he lost a canoe and spent a week searching for it, and that he was compelled for this reason to cease hunting. Captain W. E. Baker, asked as to the contingencies line which enter into the number of seals taken, stated, " The weather for one thing." 25. R., 671, line 30. R.,615,line3 R., 728, 28. Q. And rain? A. Wind and weather. Q. And fog; I suppose you will include that? A. Yes, sir. UNCERTAIN CHARACTER OF SEAL HUNTING. 207. J. D. Warren, after listening to the testimony of the witness Bragg relating to 1886, was asked: Q. Did you hear the testimony of the witness Captain r., 284, line Bragg, this morning, regarding the days in that year when 3. it was impossible to do any sealing? A. Yes, I heard him name bad days for him, when I had good sealing days. Relating to the chance of finding seals in abundance, the witness Alexander Reppen testified: Q. Are the seals thicker in one quarter than in another? r., 310, line A. No. 54. Q. It just happens that you run across a number of seals, and stay there for awhile? A. Yes, sir. Q. And then you go sixty or seventy miles in another direction? A. Yes, sir. Q. And then lie to and send out your canoes? A. Yes, sir. Q. And then you stay there a day? A. Yes, sir. Q. And if the seals are thick you stay there two days? A. Yes, sir. Q. And sometimes more? A. Yes, sir; sometimes more. Q. And then you pick up your canoes and move off sixty or a hundred miles in another direction ? A. Yes. Capt. Laughlin McLean, in his cross-examination, gave the following testimony: Q. You don't mean to say there are any stated courses inR., 332, line Bering Sea on which a vessel sails each year when she is 17, sealing, do you? A. No. Q. As a matter of fact, you go at random, wherever you can find seals, do you not? A. Not exactly at random. For instance, if I go into Bering Sea next year I will cruise around where I saw them the most this year. If there are none there I will Q. If you happen to get some seals last year where you never got any before, would you go there this year? A. Certainly. 208 UNCERTAIN CHARACTER OF SEAL HUNTING. R., 608, 18. R., 612, 60. R., 728, 34. Q. Then you would go where you thought you would have good luck: is that it? A. Well, I would prospect around until I found some seals, and if I find enough to warrant my staying I would stop. Capt. C. N. Cox, being cross-examined as to the contingencies which affect the catch of seals in Bering Sea, testified: line Q. And there is a great deal of luck in it? A. There is a certain amount of luck. Q. And there is a chance of finding where the seals are and getting them ? A. Yes, sir. In that portion of the redirect examination of this. witness which has already been quoted, attention is uncalled to his statement that he considered "the chances are whether the captain stays among them [the seals] and gets them or not." Capt. W. E. Baker, already referred to, testified as follows: line Q. Would you say there was any luck in running across the seals when you are looking for them on your schooner? A. Yes; a good deal. They call it luck. Q. A good deal of luck, is there not? A. Yes, sir. The contingencies which enter into the speculation of how many seal skins may be secured during a hunting cruise in Bering Sea, which have been presented in detail with the substantiating evidence, may be briefly summarized as follows: The smallness of the vessels employed; the extraordinary perils of a voyage to and cruise in Bering Sea; the experience and skill of the master, hunters, and crew; the unreliability of Indian hunters through their ignorance and superstition; the frequent inclemency of the-weather; the prevalency of fogs and rain; the condition of the animals when hunted, and the uncertainty of finding seals. These contingencies, the United States claim, are of such a nature as to make impossible any method of computing an estimated catch, which will be just. NO DEFINED "SEALING GROUNDS" IN BERING SEA. The Argument on behalf of Great Britain, in that portion entitled "The character and extent of the sealing grounds in Bering Sea," endeavors to do away with one of the many contingencies that enter into the problem of estimating a probable catch. It should first be observed that the employment of the words "sealing grounds" is a misuse of language, which has become common to sealing captains, and has often been adopted by7 others through thoughtlessness or ignorance of the character of seal hunting. The word "grounds," applied to a sea area, conveys the idea, to one not familiar with the occupation of procuring sealskins, that it partakes of the nature of fishing grounds, implying* shoals or banks abounding* in va- rious species of fish. But in the area of Bering Sea, where seals are hunted, the charts submitted before the Commission, which give soundings, demonstrate that no such banks exist. It is also to be noted in connection with the misuse of the term "sealing* grounds," that there is a similar misappliance of the words "fishing" and "fishery" to the occupation of hunting seals. That sealing partakes of none of the principal features of fishing, and that the waters where seals are shot are in no way analogous to "fishing banks" or "fishing grounds," but possess rather the character of "whaling grounds," are evident to those who have become farniliar with seal life and its destruction. The Argument on behalf of Great Britain attempts to establish in this chapter that there are limited areas in Bering Sea where seals can at all times during the b s 27 209 210 NO DEFINED "SEALING GROUNDS" IN BERING SEA. months of July and August be found in sufficient abundance to warrant this High Commission estimating the probable number of skins which a seized or warned vessel might have taken if her voyage had not been interrupted. The portion is divided into two parts, the first dealing with supposed localities where seals may7 be found in abundance by the hunters, and the second attempting to demonstrate how plentiful the seals are in these areas. The endeavor is made to establish the first prcrao- sition by several quotations from the case of the United States at Paris, which may be briefly stated to affirm that seals are killed by the hunters at long- distances from the rookeries. That this position assumed in the case of the United States is correct, an examination of the testimony taken before the Commissioners fully substantiates, but that it bears upon the question under discussion is denied. The next class of evidence produced consists of certain charts submitted with the United States case Br. Arg., 57, at the Paris Tribunal. The first of these referred to line 49. . ., „ , ..,.,. . . . . is a "migration chart, which, it is stated m the Argument on behalf of Great Britain, "shows that the seals in July, August, and September of 1891-were observed by the patrol vessels of the United States to have been mostly in the position above referred to." This statement is undoubtedly an error, as the chart to which reference is made is number 3, in volume 3, American reprint of the Paris Tribunal. No reference is made in that chart to the A*essels which patroled the sea in 1891, while there is, at page 602 of the same volume, a summary of the data contained in the chart. That it was of necessity7 conventional in construction and merely7 suggestive of the supposed route of the migrating seals from January until July is apparent from an examination I NO DEFINED "SEALING GROUNDS" IN BERING SEA. 211 of the data from which it was constructed. Furthermore, in the counter case of the United States, at page 105, the following statement appears: From the further data mentioned above, a new migration 'fa ' chart has been drawn, correcting and modifying the one of the United States. This latter chart superseded the one put in evidence, and is discussed at another place. mi ii p i • ^i -i Br. Are., 58, Ihe second, chart referred to is the one termed line 4. '' sealing chart." An examination of what appears in this chart fails to disclose any purpose whatsoever for placing it in evidence. That the seals are thoroughly scattered in Bering Sea at distances of more than 200 miles from the Islands appears from the data platted, but the conventional use of short lines to indicate the number of seals counted during a day should not be misconstrued into a statement that the seals are in bands of that number. With this explanation, the United States are willing; Br,\ ^S■• 58» to rest upon the tacts disclosed by the sealing chart The third chart, on which are platted the positions where British and American vessels were seized or warned in the years 1886, 1887, and 1889, bears upon the question of the skill and industry of the United States revenue officers in intercepting* the sealing vessels after their entrance through Unimak Pass, the most easterly of the passes, and therefore the nearest to Victoria and San Francisco, and almost invariably used by sealing craft when entering the sea. mi c .i l r l -i e i • i-Br. Arg., 58. 1 he fourth chart referred to is that ot the cruise ot iine 15. the United States schooner Ellen in the season of 1887. The sea area covered by her cruise is- comparatively limited and her catch as shown by the chart was inconsiderable. The fifth chart is that of the cruise of the United iine fo' States schooner Annie in the same year. The vessel appears to have never approached within 120 miles i jjPr Br. Arg., 58. line 24. 212 NO DEFINED "SEALING GROUNDS" IN BERING SEA. of the Pribilof Islands. The area covered in her cruise, which lasted forty-four days, extends for 120 miles northwest from Akutan Pass and about the same distance southwest from a line drawn from Unimak Pass to the Pribilof Islands. The sixth chart is of the cruise of the British schooner Alfred Adams, one of the vessels seized in 1887. An examination of the course which the schooner took after entering Bering Sea, compared with that of the Ellen and the Annie already referred to, shows that the area covered was substantially distinct and separate from the other two. The seventh chart is that of the cruise of the Ada, one of the British vessels seized in 1887 by the United States, and for which a claim is made before this High Commission. The cruise of this vessel was entirely different from those of the other three schooners referred to. She covered during the period from 15th of July7 to the 25th of August, when she was seized, an area extending 150 miles northwest from Unimak Pass and fully 100 miles west from 164° 30' west longitude. The eighth chart referred to is chart No. 1, counter case of the United States at Paris. It demonstrates that in connection with the patrol of the sea in the y7ear 1891 the only coaling station in the eastern part of Bering Sea is at Unalaska, in Iliuliuk Harbor. The ninth chart referred to is No. 3, counter case Br. Arg., 58 line 26. Am. Rep.; vol. 7. Br. Arg., 58 line 29. Am. Rep., vol. 7. Br. Arg., 58, line 34. Am. Rep., vol. 7. Br. Arg., 58. line 40. of the United States at Pails, and establishes the same fact. The tenth chart is No. 6, counter case of the United States at Paris, and is of A7alue in showing how far seals wander in search of food from the Pribilof Islands, bearing in mind that the dots used to indicate the seals seen do not represent herds, but the number observed by7 a vessel in any given day. For example, at 55° 10' north, and 168° east, there appears to be V NO DEFINED 'SEALING GROUNDS IN BERING SEA. 213 an average of about one 5 the correctedBr.'. ^g:' line 50. 58, a mass of seals. The area covered by7 these conventional dots is 20 miles long and 12 to 15 wide. The number of dots is 102, or seal to every 2 square miles represented. The eleventh chart referred to "migration" chart submitted with the counter case of the United States at Paris. The statement as to how it modifies the first migration chart submitted with the case of the United States is substantially correct, although there appear included the months of November, December, and January, which are not shown in the first chart. The same conventional method is employed in platting the course of the migrating animals. The purpose for which these two charts are submitted is indicated in the Argument on behalf of Great Britain in the following language: It sufficiently indicates, as well as the migration chart Br. Arg., 59, first referred to, the comparatively limited space between line i. the pass of the Aleutian Islands and the Pribilof group, in which seals are found. Reference to the data from which these charts were Am'Ee£;>7oL 1 • ,i p ,i tt •, -i a, 3,p.602. prepared, given m the case ot the united btates at Paris, shows that the charts only referred to the seals outside of Bering Sea. There is no warrant for the statement contained in the British Argument as shown by the data in the light of which the charts must be examined, and there is no ground for the contention on the part of Great Britain that a "stream of seals" exists between the eastern passes of the Aleutians and the Pribilof Islands. Furthermore, the extract from the case of theBr.-. Arf1 59> tt •. i • o i-iA liicf ii"16 °- United btates, quoted m the Argument on behalf ot Great Britain, in connection with the foregoing statement demonstrates conclusively7 that the chart referred to seal migration outside of Bering Sea, the data from which they7 were prepared being particularly referred to in the extract. mm 214 NO DEFINED "SEALING GROUNDS" IN BERING SEA. Br. Arg., 59. References are made in the opposing Argument to certain maps prepared by Mr. C. H. Townsend, of the United States Fish Commission. The first of these contains data so meager as to be practically of no value for the purpose for which it is cited. The logs of only Sen^Doc.137, tw0 vessels are used for the' years 1886 and 1887— Br. Arg., io7! those of the Mary Ellen and Favourite—as is shown by reference to the data from which they are platted. It would appear that in this portion of the British Argument the Favourite remained on the so-called "sealing grounds" in 1886, which is a position contrary to the one assumed in discussing that claim in detail. Br. Arg., 59, 'fhe second Townsend map is based on data for the line 25. j __ . -, -. , L . -, . year 1894, and, though conventional in construction, it shows one important fact, namely, the area of sea over which sealers hunt. Br. Arg., 59, The third map, for 1895, is useful for the same pur-, lme 33. pose. The references to the month of SejJtember in 1894 are home out by the data, but the year is so remote from the period of this discussion, and the evi- R., 1257, line dence as to catch and duration of the season having 15- been specifically limited by the Commissioners to the y7ear 1890, the use of this map for any purpose other than to show the extent of sea over wliich seals are distributed is unwarranted. The next evidence advanced in relation to localities where seals are "always to be found in abundance" is an extract from the deposition of a pilot, who was employed in the Revenue-Marine Service of the United States for seven years preceding August, 1886, which he gave at Sitka in that year. It is first to be noted that 1886 was the first year when the revenue cutters of the United States were employed in cruising for sealing vessels. In the second place, an examination of his deposition shows that he had peculiar views in regard to seal life. NO DEFINED "SEALING GROUNDS IN BERING SEA. 215 The chief endeavor on the part of Great Britain to establish certain defined areas of sea, in which seals can with approximate certainty be found, is based upon oral evidence. Testimony ot this class is divided into two heads, those comprising general statements, and those specifying the areas and positions where seals were taken. Upon this latter class the Argument on behalf of Great Britain rests in its consideration of this subject. The witnesses quoted in the Argument and the substance of their testimony is as follows: Bragg gives his position during the year 1886 (erroneously7 cited as 1888 in the British Argument) Br- **£•>60- as east of the Pribilof Islands and south. nfa268' line Warren gives his direction from the islands for theR-, 28i. year 1886 as southeast and south. An examination of the cruise of the schooner of Kv 281- which Warren was master shows that he covered the sea in his operations from 54° to 56° 5' north latitude, and from 164° 10' to 168° 30' west longitude. It is approximately7 an area of sea extending 150 miles east and west and 120 miles north and south. O'Leary gives his position in 1886, during July, asE-> 292>lines 90 miles west of the Pribilof Islands, and in August as 120 miles south of the islands; covering, therefore, an area over 200 miles in length. t> i ^i tt7 • 1 oo/> • . , i ■ R.» 301, line JKamlase, on the l lieresa m loob, gives her posi- {g, tion at about 125 miles south-soutlieast of the islands. Reppen states that the vessel he was upon sealed west, north, east, and south of the islands. He gives R-> 31°, ii*16 but one distance, and that 150 miles from the Pribilof Islands. Moss is cited in the Argnment on behalf of GreatBr,-- •Ar£' 61' Britain as to the cruise of the Favounte in 1886. As Ex. No. 8 the log of the Favourite is in evidence, it is of much (U-b- more value than any statement made by a hunter. The log discloses that the Favourite sealed to the southwest, south, and southeast of the Pribilof Islands, i n 216 NO DEFINED "SEALING GROUNDS IN BERING SEA. covering an area extending over 175 miles from east to west. E-> 526> Une Raynor, on the San Diego, sealed to the south and southeast of the islands. R5 "2i73i6 Meyer, master of .the Vanderbilt in 1886, stated that line 47. he sealed to the eastward, northward, and westward of the Pribilof Islands. McKiel, master of the Mary Taylor in 1887, gives no actual position as to his sealing in that year, although it is stated in the British Argument that he BrfineTf'' 61' "explains that he worked in the vicinity of 56° north '- M ,. latitude, 177° 1' west longitude." The testimony R., 671, line n , , -\ i p i i <%/-, •■< 60. ot witness was that he sealed from 40 to 100 miles west of a line drawn from Unalaska to the Pribilofs. It would appear that his position was chiefly south- tvest and south of the Islands, and the area he covered about 60 miles from east to west and over 150 from north to south. r.^333, line Moss gives the position of the Kate in 1887 as south of the Pribilof Islands, and distant 30 or 40 miles therefrom IHii line Raynor, on the Allie I. Alger in 1887, gives his position as south of the Pribilof Islands. r.^848, line Miner, master of the Penelope in 1887, gives his position as southwest of the Islands, and distant over 100 miles therefrom. r., 1728, line Meyer, who is not cited in the Aimiment on behalf 58; 1731, f. S-i \-\ * • 11 f»lT7-7 line 47. of Great Britain, and who was master ot the Vanderbilt in 1887, states that he sealed east, north, and ivest of the Islands. E'iol728 line W. E. Baker, of the Viva in 1888, gives his position 55. as south and west of the Islands, and from 60 to 90 miles distant from them, and adds that he sealed " principally west." 'fa ' Laughlin McLean, master of the Favourite in 1888, gives his position for that year as west and south of the Pribilof Islands. NO DEFINED "SEALING GROUNDS IN BERING SEA. 217 Hackett, master of the Annie C. Moore, gives hisE->,661> line position for 1888 (or 1890) at a point about 100 miles northwest of the Islands. The Triumph, in 1888, according to the positions of E-»702- latitude and longitude given by E. C. Baker, sealed soitth of the islands over an area 100 miles north and south, and the same distance east and west. Gerow, who hunted in 1888, states that the vessel R., 1493, sealed in every direction from the Pribilof Islands. line 22, Hansen is cited in the Argument on behalf of Great Br. Arg., 64, Britain as stating that'' he hunted to the southward and Une 13- westward of the Pribilof Islands, about 60 to 70 miles distant; after that, a little to the east. The direction was about north-northwest of Unimak Pass. This was in 1888." A reference to the marginal citation of the Record discloses an error in tl us summary of his testi- R., 616, line mony, the witness in tact stating that he hunted par- 26. ticularly to the southward and ivestward, and in the latter part of the year to the eastward." His examination shows also that he was speaking of the year 1889. Raynor, in 1889, gives the position where he wasR., 528, line warned as about 100 miles south of the Pribilof Islands. W. E. Baker, of the Viva in 1889, sealed mostly R-, 724, Hue southioard and westivard of the Pribilof Islands, anclR., 728 une distant 60 to 90 miles from them, but principally „55- ,. 1 r J R., 731, line west. 40. Laughlin McLean sealed to the south of the Pribilof Islands in 1889, and about 100 miles distant from them. Folger, master of the Penelope in 1889, states thatE-> 1083> H'116 he sealed to the west and east and south and northwest of the Islands. Hackett, master of the Annie C. Moore, gives hisR-> 661> line position for 1890 (or 1888) about 100 miles northwest 30' of the Pribilof Islands. B S- -28 218 NO DEFINED "SEALING GROUNDS IN BERING SEA. R., 724, 10. R., 726, 27. Br. Arg., line 35. R., 1079, 60. R., 758, 40. R., 771, 37. line R., 558, 16. line stf, e. Baker, master of the Viva in 1890, sealed to the westward and southward of the Islands, and 90 miles 6 distant, and m the latter part of the season from 40 to 60 miles east, in which position he apparently had his best hunting. The extreme points of his cruise j are cited in the British Argument as being 150 to 200 miles apart. Steele, master of the Theresa in 1890, states that he hunted to the westward and southward of the Pribilof Islands and near Bogoslof. The extent of the sea covered by7 him in his seal hunting appears to have been over 200 miles north and south. line William Cox, master of the Sapphire, states that his best seal hunting in 1890 was to the northward and westward of the Islands, although he "was all over the sea," going 80 or 90 miles east. line Capt. William O'Leary, a witness sworn on behalf of Great Britain, states that in 1888 he was west of the islands, and that he returned there in 1890, but did not find the seals "so plentiful." He then sealed to the eastward. Captain Miner, a witness sworn on behalf of the United States, testified: I sealed entirely around the islands. Q. Ton mean north, south, east, and west ? A. Tes, sir. Q. How far away from them? A. The nearest I was to the islands was 40 miles. Besides this specific class of testimony there is other of a more general nature. But two references are 66, made in the opposing Argument to this class of testimony ; one, an abstractof the evidence of A. B. Alexander, of the United States Fish Commission, which is in substance that Bering Sea during the months of July Br. Arg., 6i, and August is frequented by the fur seal; the other, a summary of the testimony of Capt. Alexander McLean, stating that his best hunting was about 60 or 70 or even 90 miles from the Pribilof or Aleutian Islands. Br. Arg. line 35 line 21. NO' DEFINED "SEALING GROUNDS" IN BERING SEA. 219 Upon the same page in the Record where this statement of Captain McLean's appeal's the following is found: Q. Can you in your observation in sealing, from 1883 down, tell from the seasons preceding whether you will in the com- R-io*14' ing season be able to find seals in any particular place or zone? A. I don't believe there is any certainty. I kept the book of reference for this reason. Q, Tou kept the book of references where you made good catches of sealing? A. Tes, sir. Q. And you have been there again in the same places? A. Tes, sir; placed it on the chart thinking it might be of some use to me, but found it was not. Q. Did you ever find any rule whereby you could find the seal the second time? A. The only rule I have found was that if they were not in one place, to go and hunt for them. Again, in the case of Captain Raynor, there appears Br ^ 63 in the opposing Argument an extract from his cross- line 25. examination to the effect that he was in the position 170° west longitude and 55° north latitude, when he was ordered out of the sea, because that is a sealing ground. The extract is closed with the following: Q. Of course, and you went where you knew the sealing ground would be? A. Why, certainly. The questions immediately following this are not cited. They are of far more importance than the single statement as to his position when warned. After the answer quoted, Captain Raynor was asked whether the sealing ground was confined to certain limits, to which he replied: "Yes; but those limitsRy 528, line are anywheres from the northeast of the islands up to the northwest of the islands and to the southtvard down towards the Pribilofs." Q. The Aleutian Islands, you mean? A. Tes, sir. 60. 220 R., 1728, 28. NO DEFINED "SEALING GROUNDS IN BERING SEA. Besides these witnesses referred to, Captain Meyer, of the Vanderbilt, testified as follows: line Q. Captain, from your experience in the years 1886 and 1887, do you know of any place in the sea where you can go in one year and find seals and then return in the following year aod be sure of finding seals there? A. No, sir; I do not. At another place in his examination appears the folic >win£ R.,1728, 62. R., 1729, 1. R., 1731, 51. line line R., 257, line 29. R., 1766, llTIA 30. R., 1770, line 20. R., 1771, line 60. R., 1767, line 34. R., 1779, line 2 line Q. And if you found seals in a certain locality in July, could you go back there in August and be sure of finding them? A. No, sir; I couldn't. Q. Have you tried it? A. Tes, sir; I have tried it several times. He added that he did not find seals at those places. In his cross-examination the witness was asked as to his cruise in 1887, and replied: "Somewhere in the same locality as in other years in search of seals." He was then asked, "You did not try any new ground at all?" to which he answered, "I tried new ground every day." Owen Thomas, a witness sworn several times on behalf of Great Britain, who had been pilot on the Carolena in the spring of 1886, hunter on the Black Diamond the same year on her northern trip, mate of the Pathfinder in 1887, master of the Pathfinder in 1888, and master of the Black Diamond in 1889, testified in his redirect examination as follows: Q. How is it that your catch was limited to about 500 skins in 1888 on the Pathfinder in Bering Sea? A. Well, I could not strike the seals; I could not get amongst them, I suppose. If the sealing grounds are "well known," as asserted in the Argument on behalf of Great Britain, it is a matter of conjecture how such an experienced sealer, as the witness Thomas claimed to be, could have avoided making a successful voyage. NO DEFINED "SEALING GROUNDS" IN BERING SEA. 221 Cotsford, one of the hunters on the Carolena in 1886, and afterwards engaged on other.sealing vessels, was asked, "Do you think that in Bering Sea there isR- 379> line any place or number of places where you can go as a sure thing, and get seals every year?"—to which he answered: "I do not think there is any sure place." Again, replying to a question as to the certainty of getting seals, he answered, "It is certain you will getE'59385> lme seals, but there is no certainty about the amount." A. B. Alexander, already referred to, who has had an extensive experience in Bering Sea, and made two sealing trips in those waters for scientific purposes, was asked, "Is there any locality where seals canE- 476> line always be found?" to which he replied, "I know of none." Capt. C- N. Cox, a witness on behalf of the claimants, in his direct examination, gave the following testimony: Q. How do you find the seals there? R.^613, line A. Scattered about. Q. On certain grounds? A. I seldom find them on the same ground. Captain Folger, who was subpoenaed by Great Britain and the United States, testified as follows: Q. From your experience in Bering Sea, Captain, will youR., 1082, line tell the Commissioners whether or not there is any one place 6^- in Bering Sea where you will always find seals? A. So, sir; not where you will always find them. Q. Is there any such place? A. The seals are everywhere, according to where the food is; wherever the food is, that is where the seals are. Q. Do they follow the food? A. Tes, sir. Alexander stated that the seals are practically1^]477' line surface feeders, and that their food consists of migratory fish. Capt. W. E. Baker stated that he thought the h ' hunting* grounds chang*ed from year to year. In this w 222 NO DEFINED "SEALING GROUNDS IN BERING SEA. R., 726, 60. line R., 758, 45. line Br. Arg., line 47. 60, R., 309, 34. line connection attention is called to the experience of Captain O'Leaiy in 1889 and 1890, already cited. In a statement made before the collector of customs at Victoria in 1892, and which Captain Baker in his examination testified was true, appears the following: I have noticed also that they [the seals] change their ground from time to time, and where you find them this year you may not find them the next. This was very remarkable during the year 1890, for the seals were all found to the eastward of the Pribilof Islands, while in the former years they were all found to the westward. With this statement the testimony of Captain William Cox is significant: Q. Where did you fish in 1890? A. I was all over the sea. Q. Did you go to the westward of the islands? A. I did, sir. Q. How far east did you go ? A. About 90 miles. Q. Did you catch seals there? A. I did not see any. Q. In what year? A. 1890. Q. You caught none east? A. None. When two such prominent witnesses on behalf of the claimants differ so widely as to the locality where seals could be taken in 1890, there is but one conclusion to be drawn, that there is no persistency in the abundance of seals in any sea area even during the same season. Alexander Reppen, a witness relied upon by Great Britain in connection with this question of the locality where seals are taken, testified as follows: Some days we found lots of seals and some days none. Q. Eight in the same place? A. At different places. We never stopped in one place all the time. NO DEFINED "SEALING GROUNDS" IN BERING SEA. 223 Q. Are there any particular hunting grounds in the sea?R-, 310, line A. No, sir, I do not think it; wherever you find the seals 46- you stay. Capt. Laughlin McLean gave the following testimony: Q. If you happened to get some seals last year where you R., 332, line never got any hefore, would you go there this year? 27. A. Certainly. Q. Then you would go where you had good luck; is that it? A. Well, I would prospect around until I found some seals, and if I found enough to warrant my staying, I would stop. Captain Raynor stated that he never in successive R., 524, line years had found seals in the same place*. From this summary of the evidence it is apparent that the sealing vessels are not confined to any given locality in then* hunting voyages, unless an area containing fifteen or twenty thousand square miles can be considered a definite "sealing grouncUfig A reference to the evidence given shows that seals were taken every year, from 1886 to 1890 inclusive, north, south, east, and west of the Pribilof Islands, at distances ranging from 60 to over 200 miles therefrom. The attention of the Commissioners is particularly called to the Townsend chart for 1894, and the "sealing" chart, No. 4, of the case of the United States at Paris, both of which were placed in evidence by Great Britain. The testimony and the charts demonstrate that the area where seals are hunted in Bering Sea extends from 165° to 175° ivest longitude, and from 53° to 59° north latitude, containing from 140,000 to 150,000 square miles, equal in area approximately to the North Sea. The Argument on behalf of Great Britain sums up Br. Arg., 65, the evidence relied upon in the following words: Having established that the sealing grounds in Bering Sea are well known and easily defined, it is proposed to point how plentiful the seals were in those sealing grounds. line 1 224 NO DEFINED "SEALING GROUNDS IN BERING SEA. I Br. Arg., 61 line 32. It is as fitting to term the entire expanse of the North Sea a "fishing ground" as it is to term these waters "sealing grounds;" and it is a significant fact that Great Britain fails to define the assumed locality of seal abundance. The second portion of this part of the Argument under consideration deals with the abundance of seals in this area of 140,000 to 150,000 square miles. During* the morning; session of the Hig*h Commis- sion on December 2, 1896, there was read into the record on behalf of Great Britain a deposition of J. H. Douglass, the revenue-marine pilot, already referred ■ to. In that appears the statement which is quoted in the British Argument showing that the seals "are at all times very plenty between Unimak Pass and said Islands, in a track about thirty7 miles wide, which seems to be then highway to and from the Islands." The picture of a "stream of seals" 30 miles wide, extending through Unimak Pass, and thence for 180 miles to the Pribilof Islands, suggests many possibilities and certainties attendant upon the occupation of seal huntmg. If such a condition existed in reality in 1886, or at any time, it can not be understood why it was necessary for the sealing vessels to ever enter the disputed waters of Bering Sea. Lying-to, at the entrance of the Pass, their boats, with short intervals between them, extending like a chain from shore to shore, it seems as if the avarice of the sealer and his exaggerated ideas of profit might have been fully realized in the slaughter of the migrating animals. The fact is that this has never occurred in the history of pelagic sealing, and that no vessel has ever hunted in Unimak Pass. That this deposition is suitable, authentic evidence, such as should receive consideration by this High Commission, is denied by the United States. Two weeks after this deposition was offered in evi- NO DEFINED "SEALING GROUNDS IN BERING SEA. 225 dence, in the redirect examination of the witness Clarence N. Cox, the following questions were asked: Q. Do seals herd together, as Mr. Warren suggests? R-, 613, line A. I have never seen them that way. Q. As a matter of fact, are the seals you get scattered about here and there? A. Tes, sir. Q. Coming back to the point about the seals being all inR., 613, line a herd together, is that the case at all in the months of July, 12- August, and September? A. Never in that way. Q. How do you find the seals then ? A. Scattered about. Q. On certain grounds? A. I seldom find them on th© same grounds. Q. How many will you find together as a rule? A. Three or four; two; very often one. Q. And this idea of large herds, with watchmen to keep the pelagic sealer off, is there anything of that kind in Bering Sea? A. Not in my experience. Q. Do you find them in larger bodies on the southern coast? A. Tes, sir. Q. When they are coming up to the sea? A. On the southern coast we find them in larger bodies. Q. And the remark you have made when asked about twenty-five seals together, and that sort of thing, does that apply to Bering Sea? A. rlo, sir. Q. Did you ever meet a mass containing as many as twenty- five seals close together in Bering Sea? A. rlo, sir. Q. Ton meet tnein in scattered numbers ? A. Tes, sir. The position here assumed by Great Britain is diametrically opposed to that taken when the Douglass deposition was urged upon the Commissioners. From the time of the examination of Cox, up to and including the last day of the session, on February 2, no more evidence was offered, on the part of Great Britain to establish this "stream of seals," and no other reference is made to it until it appears again at this time B s 29 226 NO,DEFINED "SEALING GROUNDS" IN BERING SEA. in the Argument. But few references to the Record need be made to show there is no evidence to sustain the position assumed anew by Great Britain, as the Br. Arg., 66. citations which are relied on in the Argument in no particular sustain the opinion of the witness Douglass or help to establish the contention that there is any well-defined locality where seals are found in such abundance as to- insure a certainty7 of profitable hunting. R., 310, lme -pp^ wit,nesS) Alexander Reppen, called on behalf of Great Britain, states that the seals are no thicker in one quarter than in another; that it just happens that a schooner runs across a number of seals and stays there for awhile, and that she then goes 60 or 70 miles in another direction, where, lying-to, she sends out her canoes and stays there a day, and, if the seals are thick, two days, and sometimes more; and then, picking up the canoes, the vessel moves off 60 or 100 miles in another direction, covering the whole sea about the islands. The witness, Charles E. Raynor, testified as follows: 2 535, lme q_ jn i00ting for seals out there, you have to take your vessel around the various parts of the sea to come across a bunch of seals ? A. Tes. Q. Tou do not hunt seals in herds, do you—they are found in small bunches, are they not? A. Mostly, I find them by two or three at a time. Q. There is no such thing as running across thousands of seals and being able to kill any number of them in a short time? A. No, sir; I never found it so. The witness Clarence N. Cox, already7 referred to, gave the following testimony: 45 ' Q. Tou don't want to be understood as testifying that boats go out into a large herd of seals and catch them right and left? A. So, sir. Q. They take them up separately? NO DEFINED "SEALING GROUNDS" IN BERING SEA. 227 A. Tes, one and two together—three. Q. The canoes or boats, whichever you may be using. Which do you use? A. I have had canoes since 1892. Q. They circulate about the boat, and when they find a seal sleeping, traveling, or breaching, whatever he may be doing, they kill him? A. Tes, sir. . Q. Then they go searching for another? A. Tes, sir. Further reference, in view of the foregoing statements on the part of the witnesses sworn before the High Commission seems useless. The United States deny that there exists in Bering Sea, except within the territorial waters of the United States surrounding the Pribilof Islands, any locality, where seals are at all times abundant, of such limited extent as to form a basis for calculating a probable catch. They admit that within an area, including from 140,000 to 150,000 square miles of open sea, seals are found during the summer months and that they are killed while seeking their food over this expanse of waters, at the same time contending that this large area over which the seals are scattered, north, east, south, and west from the Pribilof Islands, forms no basis for any formula which may be suggested for the computation of a possible catch. DURATION OF THE SEALING SEASON IN BERING SEA, The case of the United States in answer to the claim for damages, measured by the uncertain and estimated results of a prospective catch, is confidently rested on the citation of authorities universally hold- ing; that this basis for determining; and awarding; damages is too uncertain and speculative to be accepted-; and upon the testimony in the Record bearing upon the obstacles offered by7 nature and the unsurmountable difficulties encountered in the business of seal hunting, which render the ascertainment of a just basis for calculating future earnings of seal hunters absolutely impossible. The claim advanced as to the duration of the sealing season in Bering Sea, in the Argument on behalf of Great Britain, however, bears upon the time that the owners of the vessels, warned from continuing their voyages and not seized and condemned, were deprived of the use of their ships. The extracts and citations of testimony7 from the Record and the conclusions drawn therefrom in the British Argument, relative to the sealing season, are violently at war, the one with the other. The voyages of many of the vessels are shown in the extracts from the evidence, carefully collected, to have terminated between the 20th and 25th day of August, but the conclusion is drawn that the season extended "well into September." Again, at page 69 of the Argument, line 20, a statement is made of the latest A'oyages that the records show ever were made in Bering Sea, and made, it is worthy of note, during the year 1890, a year not 228 DURATION OF THE SEALING SEASON IN BERING SEA. 229 directly involved in this controversy. The average date for the termination of the voyages of the vessels named in this statement, which excludes nine vessels out of sixteen which were.in the sea that year, is September 5. The days that hunting operations were stopped is not given, only the days upon which the various vessels left the sea. The conclusion, however, is drawn: "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." Without citing from the Record the testimony of any witness showing that a longer voyage was ever made, and in fact no such testimony could be referred to, the final conclusion is drawn that it has been "determined that they would in each case have continued sealing; under the favorable conditions of British Arg, weather proved to have been existing until as near the end of September as would have been necessary7 to accomplish a satisfactory catch." The supposition might fairly be made that the termination of the sealing season, without any foundation in evidence being fixed "as near the end of September," would not be again removed to a later time. In the statements appended to the Triumph,' Argument, 148; Ariel, Argument, 151; Kate, Argument, 153, these elastic phrases, "until well into the month of September" and "until as near the end of September as would have been necessary," are expanded to October 1. The United States contend that the testimony in the Record definitely fixes August 20 to August 25 as the latest time seal hunting could be carried on with profit in 1886, 1887,. 1888, and 1889. No evidence was adduced on behalf of the claimants bearing upon the duration of the season, except 230 DURATION OF THE SEALING SEASON IN BERING SEA. in the indirect way of examining witnesses as to the time for which a vessel was outfitted. The answer to a question of that nature furnishes no definite information as to the last day that hunting was carried on, and includes the time required to make the voyage out of the sea and thence down the coast to Victoria. All the testimony in the Record relating to the duration of the hunting season in Bering Sea given by captains, mates, or hunters on vessels whose voyages tvere not interrupted or interfered with, is contained or referred to in this portion of the Argument. R.,230,lines. The hunting of seals in Bering Sea began in the year 1886. Captain Warren testified, " 188b' was the first yrear then of any note in Bering Sea." The evidence does not refer to more than a half dozen vessels which entered Bering Sea prior to that year, and none of them sailed from Victoria. Arg. on lie- The Argument on behalf of Great Britain, concern- b., p. 79, ing "Method for computing the estimated catch," line 16. contains the statement: K., 252. 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. G. William T. Bragg, called on behalf of Great Brit- Exhs01- p'am; was examined relative to the voyage of the Mary Ellen in 1886. He gave a detailed statement of the catch. The last hunting day was August 24. On cross-examination, he said: Q. The 24th of August was practically the close of the sealing that year in Bering Sea, was it? A. It was the close of our sealing. Q. Did you come away earlier that year than others, or did you stay the ordinary limit of the sealing season ? A. That was the ordinary limit at that time. Q. And in 1887 it was about the limit? A. About the limit in 1887. Exh. 2' Exhs., 43. R., 266, line 23. DURATION OF THE SEALING SEASON IN BERING SEA. 231 Q. Why did the season close on or about the 24th of August, 1886 and 1887? A. Well, coming on the 1st of September the weather commences to get bad. The northwesters set in about the latter part of August, and, as a rule, they take the first northwester about the last of August and steer for home. Q. And when they talk about the season extending into September they do not speak of the years 1886 and 1887 ? A. I never remained in there that late. Q. And you never knew anyone else to remain in there that late in those years? A. So, I did not. Q. I believe you said that you stayed in Bering Sea as E-, 267, line long as you desired, and that you did not come out because 5i- of any seizures in 1886 ? A. Not that I was aware of. Andrew D. Laing, examined on behalf of Great E-» 270. Britain and himself a claimant before this High Commission, testified relative to the voyage of the W. P. Sayward, 1886, and said that August 24 was the lastE->271»line3- day that the boats were lowered for the purpose of hunting seals. Emile Ramlase, called on behalf of Great Britain, relative to the catch of the Theresa in Bering Sea in 1 QQf ,„;,1. R-, 299, line loob, said.: jrj ' Q. And how long did you remain in the sea sealing? A. If I remember right, we left on the 25th of August. Q. Why did you leave on the 25th of August? A. I don't know. I suppose that was the end of the trip. On cross-examination, witness said: R.^300, line Q. When did you stop sealing in August? A. What year? Q. In 1886? A. Well, as near as I can remember, a few days before that, probably a couple of days. Q. Then you left on account of what? A. The vessel wasn't fitted out for a long cruise; she wasn't very well provisioned going home? Alexander Reppen, called on behalf of Great E., 306, Hue Britain, testified that he was on the Grace in 1886: Q. Did your sealing end about the 10th of August? A. About that I think. R 311 line Q* ^ou went out of the sea on the loth of August? 52. ' A. Tes. Q. Tou stated that you were there several days waiting for good weather, did you not? A. Tes. Q. And the good weather did not come? A. No. Q. So you went out of the sea ? A. Tes. Q. Was the bad weather that season the reason why you left the sea? A. Tes. Reppen was the only witness called who was aboard the Grace in 1886, and his evidence outweighs the general statement of Captain Warren that his vessels were outfitted for a voyage until the end of September. r., 377, line j^ Cotsford, called on behalf of the United lb. _, . States, relative to the voyage of the Carolena m 1886, said: Q. Do you know anything about what the time Captain Oglevie, or did you hear anything about the time he was preparing to leave the sea? A. Somewhere about the 20th or 23rd of August, I believe. (Captain Oglevie had told him.) British Ap., James Munger, called on behalf, of Great Britain, 40. ' relative to the voyage of the Carolena in 1886, is cited in the British argument as saying: In the sea the captain talked of going home about the end of the month (of August). r.. 636, line Cross-examined, this witness said: Q. Will you swear whether they said "about the end of the month" or "the 20th of August?" A. No. Q. Tou could not say which? A. No; not as to date. r.,_1728, Bne Peter C. Meyer, called on behalf of the United States, testifying relative to the voyage of the Vanderbilt in the years 1886, 1887, and 1888, said: Q. How did you find the sealing between August 20th and the end of August? 16. DURATION OF THE SEALING SEASON IN BERING SEA. 233 A. From the 20th of August to the end of the month? Q. Tes. A. Well, I didn't find much in it. There was not much pay in staying that time. Q. What did you stay for? A. I was there to give it a trial, and I stayed there and gave it a trial, but I found it didn't pay me. Q. In your experience in 1886 and 1887, you did not find good sealing between the 20th and 31st of August ? A. No, sir; it was not good sealing weather. The witness had been in Bering Sea between the E'ig727' Une 20th and 31st of August in 1886; therefore was in a position to testify concerning the actual conditions. Capt. Wm. O'Leary, master of the Pathfinder in 1886, R-^92> line a witness called on behalf of the claimants, testified: Q. How long were you provisioned to stay and how long did you expect to stay in the sea when you went there? A. I intended to stay until about the first of September. The witness then testified that he did leave August 6; consequently he had no actual experience that year in the sea after the 6th of August. Captain O'Leary was examined relative to theR-|0293, lme voyage of the Pathfinder in 1887: Q. For how long were you provisioned and what time did you expect to stay there? A. I expected to stay until September—about the 1st of September. Q. As a matter of fact, how long did you stay in the sea? A. I left on the 17th of August. The witness, therefore, was again not in a position to testify as to the actual conditions existing in the latter part of August. Exhibit 27, G B. Claim No. 1, Exhibits, page 43, discloses that, although the Mary Ellen ceased hunting the 24th of August, she did not leave the sea until • *I 1 • the 29th, the intervening time being employed m making ready for her return voyage and in the passage of the Pass, through which she left Bering Sea. Deducting five days from September 1, and even the testimony of Captain O'Leary regarding b s 30 234 DURATION OF THE SEALING SEASON IN BERING SEA. R., 770, line 43. R., 908, 66. what he intended fixes the close of the hunting season as August 25. This witness was examined relative to a voyage in Walter L. Rich in 1890: Q. How late in August did you leave? A. About tbe-25th of August, as far as I remember. Q. Tou never were in there later than the 25th of August? A. I do not think so; that was the last year I was in the Bering Sea. This witness, who was one of the captains employed by the claimant, William Munsie, between the y7ears 1886 and 1890, was never in Bering Sea later than the 25th of August. F-educting the usual time required to make the voyage from the place where the vessel chanced to be sealing to the Pass through which she would leave the sea and hunting operations would cease, according to his testimony, about the 20th of August. Captain James D. Warren, who managed the largest fleet of vessels in Bering Sea in 1886, examined on behalf of the claimant, is cited in the British Argument, page 70, in support of the contention that the sealing season in the year 1886 extended to the end of September: s Q. In 1886, taking the supplies you had on the vessels you have mentioned, how long did you arrange for the cruise, a cruise of the various vessels in your fleet? A. My intention was to have stayed in the sea until about the end of September. This witness might reasonably be expected, when the general character of these claims is considered, to testify to a prolonged hunting season, but irrespective of his prejudices, the fact is disclosed by the record that he was never in Bering Sea after the 20th of August, and that the captains sailing the schooners of the fleet in the year 1886 all stopped hunting before the 25th of August. ■ Laing, mate of the Saytvard, managed by Warren, states the last sealing day was August 24. DURATION OF THE SEALING SEASON -IN BERING SEA. 235 Alexander Reppen testified that the Grace ceased R'*-2311' line her sealing voy^age on. the 15th of August, and that she was not warned but stopped because of. bad weather. *;i: ;■;§.•* Captain Olsen, sailing the Anna Beck, belonging E'^g1066' Une to the fleet managed by Warren in 1886, testified: Q. So that you would not be positive that you were outfitted until the 1st September? A. I am positive that I was outfitted until 1st September when I left the west coast.' Q. And you made arrangements to hunt until what time?K-> 10*°>line A. Well, as long as I thought fit to stay in the Bering Sea. These were my orders. I had enough supplies on board to keep me there until the begiuning of September. Q. How long were you instructed to stay there? A. As long as I thought reasonable to get skins. Q. Did you fit out this same vessel the year before, viz, 1886? A. I did. Q. And you fitted her out in the same way? A. Tes, sir. Q. How long did you remain in the sea in 1886? A. Until the 19th August, and then I started for the pass and came through on the 21st. The captains on three of the vessels of this fleet positively contradict Captain Warren, and inasmuch as his testimony7 was based upon a supposition and theirs upon actual experience, but little weight is to The witness himself, however, on cross-examination, K-».838> nne be given to his statement he witness testified: Q. Now, you say your schooners were all fitted out to leave the sea at the end of September? A. In that neighborhood. Q. Did you ever know a sealing vessel that stayed in Bering Sea to the end of September in those years? A. In them years I don't think I do, and I think likely there was vessels in before Q. Tou did not begin to enter Bering Sea until 1886? A. The Victorians did not, as a rule. Q. Can you tell me of a single vessel that remained in Bering Sea in 1886 or 1887 as late as September? A. I don't know as I know of one. 18. 236 DURATION OF.THE SEALING SEASON W BERING SEA. i mW Q. Tou were first in Bering Sea in 1886? A. In 1886. Q. What was the usual time for leaving Bering Sea ofthe whole of the sealing fleet? A. We were commencing at that time; I intended to have Stopped in until the end of September. Q. Have you learned since by experience that there is no sealing to be had after the 25th of August? ■ A. Yes, sir. r.^403, Une Captain Alexander McLean, sailing the Favourite, closed his hunting season in 1883 on the 10th of August; in 1885 on the 23d of August, and in 1886 on the 19th of August. He produced the original log books of his voyage for those years, and the entries confirmed his testimony. The logs are on file as exhibits and can be inspected. This testimony7 is all the testimony in the record bearing upon the duration of the sealing season in Bering Sea in the year 1886, which was given by captains who were actually7 there and whose voyages were not interrupted. Only one of these vessels was warned, and Captain McLean, commanding that vessel, the Favourite, testified that he did not leave the sea because of the warning, but stopped hunting on the 19th of August because the season was closed. TESTIMONY RELATING TO DURATION OF SEASON OF 1887. R., 403, line p„ Al< •Japtain Alexander McLean, sailing the Mary Ellen stopped hunting'on the 19th day of August. r. 1247, une captain Charles E. Kaynor states that he made ready to leave the sea on the 24th of August, 1887, on the Allie I. Alger. E55730' line Captain Laughlin McLean, a witness on behalf of Great Britain, testified: Q. When did you leave Bering Sea? A. I will have to refer to my books [examining memorandum]. In 1887 hry last sealing day was the 27th_ of August, and I came out through the pass on the 5th of September. DURATION OF THE SEALING SEASON IN BERING SEA. 287 The detailed statement of the catch of the Favourite E^ 732> Une in 1887 shows that the 26th of August was the last sealing day, the witness stating, " and the 26th is the last day of sealing." Captain Albert Folger, a witness called on behalf E'g81082>Une of the United States, examined relative to his voyages in Bering Sea, testified that he was a sealing captain and that he resided at Victoria, and that the last day he sealed in 1887 was the "19th of August." Captain Peter C. Meyer, a witness called on behalf E'g61727'line of the United States, testified that his last lowering day in 1887 was on the 29th of August; that he remained in the sea until the 11th of September, and was unable to lower his boats in the meantime. Alexander Reppen testified that he was on the Black^ 1384>Uae Diamond in 1887, and that she left the sea on the 15th of August. Captain Moss testified that the Kate left the sea in E-.> 335>line 1887, "the latter part of August," andlater fixed the R.,34i,iine4. date "somewhere about the 20th or 24th or 25th." Examined again as to the date, he testified "20th o/E-> 1389> ^ August or a little later. I do not remember as to a day or so." THE TESTIMONY RELATIVE TO THE CLOSE OF SEALING SEASON IN 1888. THE Emile Ramlase, examined on behalf of Great Brit- E'in623> line ain relative to the -voyage of the Annie C. Moore in Bering Sea in 1888, said: Q. What time did you leave ? A. About the 20th of August, I believe. I am not certain r., 623, line of the date, though. 50. Q. Very near the 20th? A. It must have been very near the 20th, because we had finished our sealing season. Q. Were you warned out in 1888? A. No, sir. E. Crow'Baker, the owner of the Triumph in 1888, and a witness sworn on his own behalf, testified rela- ;! 238 R., 702, 42. R., 730, 66. R., 1082, 57. R., 1078, 20. R., 1078, 58. R., 1727, 13. R., 1728, 26. R., 403, 59. R., 677, R., 677, 42. R., 677, 38. R., 659, 62. line R., 1447, 46. DURATION OF THE SEALING SEASON IN BERING SEA. five to the voyage of the Triumph in 1888, and gave a detailed statement of the catch in Bering Sea. The last lowering day Was 'the 20th of August. The last lowering day before that date was the 14th of August Captain Laughlin McLean, testifying relative to the A7oyage of the Favourite in 1888 on behalf of the claimants, said "(referring to memorandum): 8th of July I entered Bering Sea; 3d of September I left the sea. My last sealing day was the 27th of August.1' The reason he left: "The weather was bad." Captain Albert Folger, of the Maggie Mac, testified tat his bust sealing day in 1888 in Bering Sea was the 24th of August. Captain John Steele was sealing in 1888. "The first strong gales that set in from the northwest after the 20th August we generally left for home." CaiDtain Peter C. Meyer testified that he was master of the schooner Vanderbilt in 1888, and that sealing did not pay after the 20th of August. Captain Alexander McLean, sailing the Mary Ellen, in 1888 stopped hunting on the 19th day of August. William J. Goudie, called on behalf of Great Britain, testified that the 28th of August was the last hunting day of the Edward Welch. Although the vessel did not go out until the 7th of September, the boats were not lowered in the meantime. Captain Charles Hackett, called on behalf of Great line Britain, examined relative to the voyage of the Annie C. Moore in 1888, testified that he left the sea the 22nd of August, and that he was not afraid of seizure. Captain Victor Jacobsen, a claimant before the High Commission, is cited in the Argument on behalf of Great Britain on the duration of the season, and the statement Is made that he "also remained in the sea in 1888 until the 7th of September without difficulty." lme He was cross-examined relative to the voyage:. line tl line line line line line line line line r DURATION OF THE SEALING SEASON IN BERING SEA. 239: . Q. I am talking about whether you are certain you hunted after the 3rd of September. A. We went out through the pass, but we hunted to the last. We left the sealing- ground on the 3rd of September in the sea, and went and filled water, and we lowered and sealed after we filled water and come out,, the same day we come out or the day before. Q. Tou practically abandoned your hunting then on the 3rd of September? A. Out in the sea, I suppose. We come and filled water and then we hunted after that. Q. Tou lowered in.the pass? A. Tes; lowered inside the Pass. This witness said that he came out in the year 1890 on the 21st of August; that he was not afraid of seizure, and that he came out because he had enoughR'eiU8'line seals. Captain Baker is cited in the Argument on behalf Ar&<?:]H?* X mi ^ Olj 11HC Of 4 of Great Britain. The statement is made that he remained in the sea until the 2nd of September. The witness being asked to give a detailed statement of the catch of his vessel in the month of August, 1888, gave the statement which shows that after theE., 72i9,iine fi2 27th of August he did not lower the boats, and took but two seals after that date, one of them on the 30th of August and the other on the 2nd of September. Q. And, for instance, I think you stated that on August E-> 7273>nne 8, 16, 23, and 30th and September 2nd you only took one seal on those days. Would those be lowering days? A. No, sir. Accordingly, the close of the hunting season for. that voy7age was August 27th. Captain Clark, of the Juanita, testified that he E&m9'line left the sea August 20, 1888. Recalled for further examination, he stated that the reason he left was because he did not know but there might be seizures after the 20th of August. Herman Smith, testifying on behalf of Great Brit- E'*53U85>line aim said the Black Diamond left the sea in 1888 on the 25th of August. 240 DURATION OF THE SEALING SEASON IN BERING SEA. The testimony of all the witnesses clearly establishes that but one vessel had ever remained in Bering Sea, prior to the year 1889, into the month of September. In the claims as presented in the Argument damages for interrupted voyages which would have been extended until the 15th of September are asked. The Mountain Chief, sailed by Captain Jacobsen, was the vessel that alone of all the sealing fleet in Bering Sea in the years 1886, 1887, and 1888 took a seal in September. The testimony of Captain Jacobsen has been cited where he stated that "We left the sealing ground on the 3rd of September in the sea." He does not state what day he lowered last in the sea, leaving this to conjecture. Inasmuch as the testimony of the other witnesses abundantly establishes the fact that no other vessel lowered its boats in the month of September, the presumption, amotmting almost to a positive conclusion, is that Captain Jacobsen did not lower his boats from the Mountain Chief in September in the sea. Against the positive statement of the other witnesses as to the close of the hunting season, and against the experience of so many other sealing captains, this one case of the continuation of hunting to the 3rd of September surely does not warrant the conclusion that the 15th of September was the limit of the season. TESTIMONY RELATING TO DURATION OF SEASON OF 1889. Captain Charles Hackett, a witness on behalf of E.^658, line Q.reat Britain, testified that he left the sea in the Annie C. Moore in 1889 on the 22nd of August; that it was not favorable weather for sealing between the 16th and 22nd, and that he stopped hunting the 16th of August. Thomas H. Brown, witness called on behalf of Great Britain, testified that the last lowering day of the vessel that he was on in 1889 was the 25th of August. R.. 651 24. line - 1 DURATION OF THE SEALING SEASON IN BERING SEA. 241 Captain Baker, cited as authority on duration of the sealing season, in the Argument of Great Britain, andR-,719, lines, a witness called on behalf of Great Britain, testified that the last hunting day in Bering Sea in 1889 was the 21st of August. He sailed the Viva. Captain Laughhn McLean testified that he wasE|2736' lule sailing the Favourite in the year 1889 and that the last day he sealed was the 25th of August. He left a few days later. He did not leave because of fear of seizure, but because he "wanted to go home." Albert Bissett, called on behalf of Great Britain, testified that he was on the Theresa in 1889 and thatE'{4776' line she did not leave until the 3rd of September. The witness did not know the last lowering day. Captain Albert Folger, of Penelope," testified thatE^o1082, line the last day he sealed in 1889 was the 19th of Au-^-> io82,iine , J 65. gust. Captain John Steele testified that he was in the sea in 1889, and stated: The first strong gales that set in from the northwest after the 20th of August we generally left for home. The latest he was ever in Bering Sea was the 29th of August \n 1890. Captain Alexander McLean, sailing the Mary Ellen, stopped hunting the 25th of August in 1889. Wm. T. Bragg, called on behalf of Great Britain, testified that the 25th of August was the last lowering day of the Maggie Mac in the year 1889. Wm. J. Goudie, witness called on behalf of Great R., 1078, line 58. 403, line R., 765, line Britain, stated that his vessel stayed in th sea until some time in October for the purpose of making E „„„ .. . a raid on the Pribilof Islands, but that the last lowering day for the purpose of seal hunting was between the 20th and 25th of August. Captain Hansen testified that he left Bering Sea the middle of August on the Adele. He afterwards stated 45. as the reason that he could do nothing with his Indians; that "they would not hunt any more." b s 31 242 DURATION OF THE SEALING SEASON IN BERING SEA. R., 557, 58. R., 665, 38. R., 658, 58. R., 606, 31. R., 558, lin R., 751, 8. R., 754, 10. line Captain Miner testified that he left the sea in 11 "the latter part of August." This testimony of the witnesses relative to their actual experience in the year 1889 establishes that there was not a vessel in Bering Sea in September, 1889, for the purpose of sealing, and yet in some instances the claim is made for the sealing season extending until the 1st of October. The testimony relied upon to thus extend the duration of the voyages of these vessels which were interrupted by the cruisers of the United States relates entirely to the year 1890. There are no claims before this High Commission for vessels warned in the year 1890, and the testimony relating to that year is remote when used for the purpose of establishing the duration of the season of 1889. Considering the testimony of all the witnesses relating to the voyages of vessels in 1890, the weight of testimony supports the statements made relative to the duration ofthe season in former years. line Captain Victor Jacobsen testified that the last day of hunting in 1890 was the 21st of August. He sailed the Minnie. liue Captain Chas. Hackett, a witness on behalf of Great Britain, of the Annie C. Moore, said that he gave up sealing on the 11th of August, and that he stopped on account of bad weather. Captain Clarence Cox, master of the Triumph in 1«90, testified that the 19th of August was the last, day he hunted in that year. Captain Mmer, commanding the Allie I. Alger in 1890, testified that he left "along the first part of September." Captain Laughlin McLean, commanding theFavour- ite in 1890, testified that the last day he lowered was liue the 14th of August, and stated that the weather was line generally worse in the last part of August than it was in July or the first of August. lii DURATION OF THE SEALING SEASON IN BERING SEA. 243 Captain John Steele, of the Theresa, testified that R., 1078, line the 29th of August was the latest he was ever in Ber- i0' ing Sea, and that was the year 1890. His last sealing r., 1078 line in that year was on the 28th day of August. *2- Captain Albert Folger, ofthe Penelope, testified thatR., 1083, line the last sealing day in 1890 was about the 26th of 59- August. Captain Frederick Paine, of the W. P. Sayward, in the year 1890, testified that the last lowering day was e., 1725, line about the 28th of August. 13- Theodore Magnesen said of the voj7age of the Sea E|61004>line Lion: Q. And when did you leave the sea in September ? A. I left it on the 14th. Q. So that from the first to the 14th you caught 300 seals ? A. I think so; pretty near. Q. Was there pretty good weather in September? A. September was fine, the first part of September. Q. In fact you did better work in September than you did in August? A. Tes; I did nothing in August, nor in July, either. It was too stormy. Q. So that these people who tell us you can not fish in September on account of the weather, they don't know anything about it, do they, Captain? A. Oh, no; you can get lots of seals in September. This witness is cited in the Argument for Great Britain as a witness called on behalf of the United States. He was called on behalf of the United States for the purpose of ascertaining information relative to the catch and the duration of the sealing season. No witness examined on behalf of Great Britain was ever asked regarding the duration of the sealing sea- son. This witness, however, was the mate of the Minnie at the time of her seizure and was afterwards a witness on behalf of Great Britain in the claim of the Minnie, and was a sealing captain out of the port of Victoria. Captain Robert E. McKeil, a witness on behalf of E'42672' Um Great Britain, testified relative to the voyage of the 244 DURATION OF THE SEALING SEASON IN BERING SEA. E. B. Marvin in 1890, and said that the last day of hunting was the 30th or 31st of August. R.,7ii,Hne4. Captain Louis Olsen testified that the Juanita left the sea "the 2nd of September." He could not state the last hunting day. E'48723' line Captain W. E. Baker testified relative to the voy- R.,724,iine5. age of the Viva in the year 1890, stating that he took seals eight days in September; that he remained in the sea and that his last sealing day was the 12th of September. Captain Siewerd, whose testimony was not taken r., 1940, line in court, but whose statement was taken, said that he 34' left the sea on the 6th of September, in 1890. R.,_770, line William O'Leary, testifying relative to the voyage of the Walter L. Rich, in 1890, said that he left the sea "some time towards the end of August," and added that he did not think he was ever in Bering Sea later than the 25th of August. R43677' Une William G. Goudie, testifying relative to the voy- r., 757, lineage of the Sapphire, in 1890, said that they left the sea on the 17th or 18th of August. Captain Cox testified he left August 15th. EI0W86'line Herman Smith, testifying in behalf of Great Britain, said that he w9^ on the Katherine in 1890, and left the sea on the 31st of August. R.^6i6, hue GrUStave Hansen, master of the Adele, testified that he left the sea the 12th of August. The testimony shows that but three vessels actually sealed in Bering Sea in the month of September, during the entire period from 1886 to 1890, inclusive. These three vessels are the Mountain Chief, in 1888, which took sixty seals in the Pass, a place in which the Record discloses the boats of no other vessel were ever lowered, and this was, therefore, a chance pickup of seals. The Viva, in 1890, which took 370 seals in September; and the Sea Lion, in 1890, which took "about 300 sills in September." The total number of seals taken by hunters who DURATION OF THE SEALING SEASON IN BERING SEA. 245 testified on the witness stand at Victoria amounted to nearly 73,000. The total number taken .in September was 730. The proportion taken in the month of September is as one to one hundred. The United States contend that there is no fact in the Record so firmly established as the fact that the termination of profitable seal hunting in Bering Sea was between the 20th and 25th of August. The Argument on behalf of Great Britain cites the Bl}& Arg*' *•• witness Steele as saying that there are " some fine days in September, and that some fine catches are made in that month." Captain Steele was never in R., 107s, line Bering Sea in September, according to his testimony. Captain Baker is cited as remaining in the sea until E"Aq727, Une the 2nd of September. The record discloses that his last sealing day was August 27. The statement is made that Captain Jacobsen remained in the sea in 1888 until the 7th of September. The testimony of Captain Jacobsen states he left the position in the sea where he was sealing, September 3, and does not state when he hunted last before that date. The statement made that in certain years there were only a limited number of boats (naming them) which remained in the sea without interference is corrected by the testimony here given. The testimony cited in this Argument, establishing the termination of the hunting season in Bering Sea, does not relate to the voyages of vessels warned or interfered with by revenue cutters. Wherever the testimony disclosed that the voyage was interfered with in any manner no reference has been made to the testimony. The statement made in the Argument, of the latest Brj*- A**''?' t • i> • c? j ii j 69, linage- voyages ever made m Uenng oea ana all made m the year 1890, corrected, would read: Sea Lion, 14 September; Viva, 12 September; Ocean Belle, 6 September; Juanita, 2 September; 246 DURATION OF' THE SEALING SEASON IN BERING SEA. W. P. Sayward, 28 August; Penelope, 26 August; E. B. Mai~vin, 31 August. The average of these dates is September 5. Captain Alexander McLean is cited in the opposing Argument and the observation made that the answer stating that he "figured on getting back" about the last of August and the 10th of September, and the answer, which is not given in full in the British Argument, that he generally returned to San Francisco by7 the 11th of September, is inconsistent with his testimony "about the 20th of August I would consider the end of the season. I used to leave the sea then." R., 462, line f^ Commissioner on the part of the United States 65. . . . .1 . . „ . asked, at the time this testimony was given, it there was any inconsistency, and called attention to the fact that the later time included the time required to make the return voyage. In conclusion, every witness whose testimony is in the Record, when asked generally regarding the close of the sealing season in Bering Sea, fixed the termination of profitable hunting as between the 20th and 25th of August. There is no testimony in the Record given by a captain who was in the sea, and therefore based upon actual experience, extending the season into the month of September. "METHOD FOR COMPUTING THE ESTIMATED CATCH" DISCUSSED. That portion of the Argument on behalf of Great Britain entitled'' Method for Computing the Estimated Catch" possesses an originality which makes it unique among the formulae which have previously been employed in dealing with the subject of probabilities. While the United States insist that "prospective profits" can not be allowed in any event, and furthermore that the contingencies which necessarily appertain to seal hunting preclude the results from becoming a legitimate field for mathematical demonstration, the method for computation proposed is so extraordinary, so unjust, and so unreasonable, that it can not be passed over without comment. In brief, the scheme advocated is this: to take the catch of the schooner Mary Ellen in 1886, which took in that year the largest number of skins ever taken by any vessel in Bering Sea of which we have evidence, and calculate from the data of the voyage how many seals were secured on the average by one of her hunters during the period from the date of the seizure or warning of the vessel, for which the catch is being computed, to the 24th of August, the day when the Mary Ellen ceased hunting. The scheme is complicated by a calculation of probable hunting days, which makes the method more involved without affecting the result; for example, in the case of the Carolena, given in the Argument to demonstrate the application of the system proposed, it is stated that 5 boats on the Mary Ellen were in the sea 24 days, which would equal 120 days for 1 boat; 247 mm 248 ESTIMATED CATCH DISCUSSED. Br. Arg., line 13. that the "lowering days" were 68J, and the catch 958; that the 4 canoes of the Carolena would have been hi the sea 31 days, or 124 days for 1 canoe; the formula then adopted is this: TTTi-pX .on — the probable catch of the Carolena. bo.5 1/0 L It is apparent that 68 J, the number of hunting days, is superfluous, and can have no effect upon the result. This factor of "lowering days" appears to have been inserted in the problem for the purpose of making it seem more plausible, while in fact it only7 tends to complicate and mystify. Stripped of its superfluous factor, the formula proposed in the Argument is this: The catch of the Mary Ellen, from the date of seizure (or warning) of the schooner to August 24, divided by the number of boats on the Mary Ellen, times the number of days from the date of seizure (or warning) of the schooner to August 24, and multiplied by the number of boats (or canoes) on the schooner , times the number of days from date of seizure (or warning) to the presumable close of the season, equals the probable catch of the schooner . The facts, which it is necessary to assume in order that this method of calculation may7 be applied, atre so numerous, and at the same time so uncertain in themselves, that it is difficult to understand how such a mathematical scheme could have been suggested to the High Commission as a means of determining approximate certainty. That these assumptions are recognized in the Argument on behalf of Great Britain is shown in the illustration they.give of the application of their formula. The Argument says: , If these four men [hunters on the Carolena] 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, etc. These assumptions as to the duration of the sealing voyage in Bering Sea, the universality of weather in ESTIMATED CATCH DISCUSSED. 249 different parts^'of the waters frequented by the sealing vessels, and "other conditions" are all in themselves probabilities, and so problematic as to demand sufficient demonstration of their approximate certainty before they7 can be employed as a basis for arriving at another probability7. They have been fully dealt with in this Argument under the titles of "Duration of the sealing season," "iso defined sealing grounds in Bering Sea," and "Uncertain character of seal hunting," to which reference is here made. On reviewing these assumptions, to establish which no attempt is made in the Argument on behalf of Great Britain, except in relation to the duration of the season, the abundance of seals, and the 'limited area in which they are found, yet without which the method proposed can not be applied, it is apparent the ramifications of these probabilities are so wide that there is not the slightest basis upon which to found the formula proposed in the Argument on behalf of Great Britain for a computation of an estimated catch. The following statement appears in the Argument without marginal reference to the Record: It is shown that boats took about one-third more than an Br. Arg., 79, equal number of canoes. l*116 9- An examination of the Record fails to disclose upon?/'32*!11'-?9- i Vi .1 • • i -i mi ^ E-> 327> line what evidence this statement is based. Ihere are 65. numerous witnesses who testify that a boat is supe- *j ' rior for seal hunting to a canoe, but evidence of aE-i 729, line ratio between them is altogether lacking, except that of two witnesses, who make definite statements upon this point, viz: Captain Alexander McLean and Captain McKiel. The former in his examination gave the following testimony: . Q. What in your judgment, from your experience, is the R-, 424, line comparative value in sealing of canoes to boats? 9- B s 32 250 R., 329, 45. ESTIMATED CATCH DISCUSSED. A. It will take more than two canoes to compete with a good white hunter. Q. Tou mean with Indians in it? A. Tes, sir; I have found them to be so, and have heard it from other vessels. Of course there are exceptions. Q. Name the exceptions. A. Some vessels with Indian hunters make very large catches. Q. Is that because of the skill of those Indians? A. Tes, sir. Q. Those are exceptions, are they not? A. They are. The answer of Captain McKiel to a question relating to the proportionate hunting power of boats and canoes was as follows: line Well, I can't say; but I think six good white hunters would be equal to ten canoes—the average, canoes. Q. Tou are now comparing white hunters with Indians in canoes ? A. Tes. No witnesses were produced to contradict these statements. Although there is no attempt to establish the assertion in the Argument on behalf of Great Britain, and no other reference is made to the subject, it is of the greatest importance in any attempt to reach a basis from which to calculate a "probable catch," for of all the vessels for which claims are made for such earnings before this High Commission, but four—the l''2!!-*'"^ Thornton in 1886, and the Triumph, Pathfinder, and 39. Ariel in 1889—employed sealing boats with white E-65327' lu3ehunters. In the case of the Carolena canoes were r., 329, line used, and although the Argument on behalf of Great Britain assumes that two white men in a canoe are equal to three in a boat, all the evidence which is worthy of consideration tends to disprove the assumption. Returning to the formula proposed, let us apply it line by substituting in place of the Mary Ellen the Thornton. The latter entered the sea on July 2, 1886; was 280, 59. R., 812, lino 18. ESTIMATED CATCH DISCUSSED. 251 seized August 1. She earned four hunting boats with R 932 llne three men in a boat, and her catch up to the time of H seizure was 403. As it must be assumed in the Argument on behalf of Great Britain in computing the catch of the Thornton by the proposed method, that her hunters were as expert as those of the Mary Ellen, and her fortune in finding seals equal to that of the latter vessel, the same assumption is adopted for the purposes of this Argument. The average catch per day for each hunter on the Thornton would be for the thirty days she was sealing, 3.36. Applying this average to the extension of the Carolena's voyage, as presumed by the Argument on behalf of Great Britain, her catch would be 417 seals. It may be argued that it is not a just comparison, from the fact that the hunting of the Tlwrnton took place in July, while the operations of the Mary EUen, on which the calculation is based, were in August. The Mary Ellen in thirtv-fbur days prior to August 1 took 1,437 seals, while in twenty- four days in August she took 958, the daily average in July7 exceeding that for August. If there is any advantage, therefore, it is in favor of the Carolena. Another fact, to which the attention of the High Commissioners is called, is that the daily average of a hunter on the Mary Ellen in July7 was 8.41 seals, and for a hunter on the Thornton was 3.36. As a further test, let us substitute the W. P. Sayward for the Mary Ellen. It is stated in the British Argument that the rerun 1 iinegj5.' r.' of the W. P. Sayward is incomplete, but an examina- motion of the testimony7 of Andrew Laing discloses that the data furnished by him is sufficient for the purpose of computing and estimating a catch by the method proposed, as we have shown that the data in regard to "lowering day7s" are superfluous. Furthermore, there is no evidence before the High Commission showing that the W. P. Sayward was J 252 ESTIMATED CATCH DISCUSSED. R., 1098, 17. R., 271, 8. R., 1098, 12. R., 710. 28. R. 1725, 8. interfered with during her cruise, and Laing, her mate, and a witness sworn on behalf of Great Britain, was not questioned on this point. line It should also be noted that the last "lowering" of the W. P. Sayward was the same day as that of the Mary Ellen. The former in the year 1886 car- lm6ried eight canoes. Her catch for the first twenty- line four days of August was 512. The average daily catch for one canoe during these twenty-foui" days was, therefore, 1.897. Assuming for the sake of argument, and for the purpose of comparing this basis with the one employed by Great Britain, that the Carolenawould have sealed the entire month of August, we would have an average catch during that month for each canoe of 57.8; and the four canoes used by the Carolena would have taken 231 seals. Again, let us take the W. P. Sayward in 1889 as a basis in place of the Mary Ellen. She entered the linesea that y-ear on July 7, and lowered last on August 18, a period of forty-three days' hunting. She carried 14 canoes, and made a catch of 1,812; the average per day for each canoe would be, therefore, 3.241. One canoe for thirty-one dayrs, the time claimed as the intended voyage of the Carolena; would at this ratio have taken 100 seals, and an estimated catch for the Carolena's 4 canoes would therefore be 400. line Take the same vessel in 1890. She entered the Sea June 29, and lowered last, August 28, which would be sixty-one days of sealing, in which time she took in the neighborhood of 500 skins; each of her 8 canoes had, therefore, a daily average catch of 1.024 skins,' and for the thirty-one days, assumed as the duration of the Carolena's voyage, the 4 canoes of the latter schooner would have taken 128 seals. On the basis, therefore, of the W. P. Sayward for the three years 1886, 1889, and 1890, we have, by adopting the method proposed in the Argument on behalf of Great Britain, the following variations as ESTIMATED CATCH DISCUSSED. 253 an estimated catch for the Carolena during the month of August, viz: 231, 400, and 128. We may also compare the catches of the Mary Ellen and the Carolena during the month of July, 1886, for the purpose of reaching a ratio of the hunting power of a boat used on the Mary Ellen and a canoe used on the Carolena. The catch of the Mary Ellen from the 28th of June to the 31st of July, inclusive, was 1,437 seals, which would be a daily average of 8.41 seals for each hunter. The Carolena, assuming that her sealing practically began on the 1st day of July, E-> 3?6, line took in thirty-one days 684 seals, or an average per day for each hunter of 5.51. Such examples of the application of this method of computing catch might be multiplied to the full extent of the data relating to the 70 vessels given in the evidence produced before the Commission; but the foregoing are deemed sufficient to demonstrate how false the assumptions and how faulty the method proposed. When these claims were originally presented to the United States in the case of Great Britain, submitted to the Paris Tribunal, the method of reaching an estimated catch for the claimants of 1886 was by means of a computation based upon the average number of skins secured by thirteen vessels sealing in that year. Why this method was abandoned on the part of Great Britain is apparent from an examination of the data for 1886, which is printed in a table attached to this partof the British Argument. The average reached in the original schedule of claims was substantially the same as the Bering Sea catch of the Mary Ellen, used in the present method; but from the testimony given in connection with Exhibit B of the declarations made by J. D. Warren, as agent for the claimants, it appears that the average in the table was R., 287. obtained from the catch- for tlie entire season. In order, therefore, to maintain the average which was advanced in the original scheme of' estimating the 254 ESTIMATED CATCH DISCUSSED. probable number of seals which would have been taken by a schooner seized or warned, it was necessary for the claimants to adopt some other method than one based upon an average of the catches of the vessels, the data of which were given in evidence. No other plan than the one presented by the Argument on behalf of Great Britain could possibly7 give such large results or be more satisfactory to the claimants. A careful examination of the items for " Estimated Balance of Catch," appearing in the schedule attached to the consideration of the separate claims in the British Argument, testing each by the formula suggested, fails to disclose how the numbers claimed were reached. For example, the claim for the Anna Beck is 3,000 skins, while calculated as proposed the "probable catch" would have been 4,082; the Minnie's claim is 3,500, according to the formula, 4,298; the Triumph (1889), 3,500 claimed, 5,852 computed; and the Ariel, 2,086 claimed, 3,436 calculated. In the majority7 of cases these skins claimed as "an estimated catch" are less than would have resulted from an application of the "Mary Ellen method," while in a few instances the claims exceed the calculated catch. The , arbitrary change of the figures resulting from an application of the method of calculation proposed shows that it could not have been deemed satisfactory or equitable even when suggested. Immediately preceding that portion of the Argument in which the mode of calculating "probable profits," based on the catch of the Mary Ellen, is explained and advocated, there appear five tables, giving what purports to be a summary of the evidence in regard to the vessels sealing in Bering Sea in the seasons from 1886 to 1890,- inclusive. In view of the method suggested in the opposing Argument, the object of this table is not apparent. ESTIMATED CATCH DISCUSSED. 255 It certainly can not be presented for the purpose ofBr- At&> 81> giving the Uommissioners other data upon which to base an estimate for "probable catch," nor is it anticipated that, having advocated a method and insisted that it is fair and just, Great Britain would suggest another scheme of computation after this argument had been delivered and when the United States had no opportunity to reply to such new proposition and new bases for the calculation of a "supposed catch." It is believed by the United States that Great Britain presented to this High Commission what was deemed the most plausible method to be adopted on the facts, and the one which they considered to be most easy of mathematical demonstration. Attention is called to the fact that at the time when Great Britain offered evidence as to the catch for the year 1890, it was strenuously objected to on the part of the United States as being remote to the questions at issue; and at the same time it should be noted that from the first the United States have insisted that allE-'U1, testimony offered for the purpose of founding a basis for the computation of a "probable catch" was irrelevant, and ought not to be entered upon by the Commissioners, on the ground that future profits could not be recovered by the claimants. The portion of the Record relating to the admission of testimony in regard to the Bering Sea catch for the year 1890, which was originally presented by Great Britain, and is now apparently abandoned, is as follows: The senior Counsel on behalf of the United State ,.R [22, line There is no probable catch claimed for 1890, and we submit that it is remote, and the same rule would cover as was in the minds of your honors when you excluded any examination of Mr. Alexander, the United States Fishery Commission agent, by us, as to the catches of 1894 and 1895. Of course, if there was a probable catch claimed for 1890 there would be no question about it under your honors' ruling to take the testimony as to probable catches, reserving the question for future argument. There is no question here as 256 ESTIMATED CATCH DISCUSSED. to the cases of seizures in 1886, where they claimed the probable catch for 1887, or the seizures for 1887, where they claimed the probable catch for 1888. The Commissioner on the part of Her Majesty7: I do not remember what was ruled before, but it seems to me that the catch for any reasonable year, especially after the time in respect to which the claim is made, would have a bearing, because presumably the seals are not appreciably greater. Therefore, at all events, within a limited number of years they may be considered to be about the same in number, and the catch in any year to be reasonably close—not getting too remote from the date in question—would seem to me to have a very obvious bearing upon the probable catch for the year in question. If we have ruled out evidence of this kind in 1894, the proper course would be to allow that evidence to be given, if it is considered that 1894 is not too remote. The Commissioner on the part of the United States: It was ruled out after very careful consideration. The Commissioner on the part of Her Majesty: The evidence might not be admissible in 1894, because at that time the mode of sealing was changed after the regulations came in force, and, of course, with a changed mode of . sealing the circumstances would not be the same and the evidence would not be applicable; but it would be otherwise where the mode of fishing is the same. It wou Id seem from the fact that Great Britain having offered so much testimony in regard to 1890, and all the other y7ears from 1886 lip to that time, there was premeditated during the early7 sessions of the Commission at Victoria a plan to reach approximate certainty by "means of applying the general average of a large amount of data in relation to catches of other vessels for those five years; but that, in examination of the testimony, it was found that in a large number of cases the evidence was incomplete, and in a still larger number was uncertain, through numerous contradictions in the testimony of different witnesses. This ground for the conclusion apparently reached by Great Britain is reasonable, and, as the ESTIMATED CATCH DISCUSSED. 257 United States conceive, fully justified by an examination of the Record. Probability, from the time that it has been treated as a branch of mathematics, has always, in deducing a future event from known past events, dealt with the question of general average. Without general average, probability is mere chance. It is, therefore, confidently believed that the High Commissioners Encyi. Brit., will not adopt any method of computation which p. 768. ' excludes an average resulting in approximate certainty. That a reliable general average can be reached from the evidence is denied, and it is asserted that, even if there were a legal basis, which the United States insist there is not, for the adoption of methods employed by mathematicians, there is before the High Commission no adequate data for the application of the rules which relate to the science of probabilities. bs 33 R., 1881, 1 64. R., 1884, 1 36. THE VALUE OF SEAL SKINS. Theodore Lubbe, a purchaser of seal skins in the city of Victoria since the year 1875, was the only competent and experienced witness called on behalf of either party to this controversy who gave general inetestimony of the value of seal skins in the market of Victoria in the years when the seizures by the United States were made. Mr. Lubbe testified that the Alaska Commercial Company, of San Francisco, at that time lessees from the Government of the United States of the Pribilof Islands (R, 1883, line 23), Bessenger & Co. (R, 1890, line 65), The Hudson Bay Company (R., 1891, line 60), Liebes & Co., of San Francisco (R., 1931, line 23), I. & A. Boscowitz (R, 1932, line 21) and himself, representing Martin Bates, Jr., & Co., of New York, were purchasers of seal skins in the market of Victoria in the year 1886; that J. Uhlman & Co., of New York (R, 1883, line 29), Liebes & Co., of San Francisco (R., 1883, line 35), the Hudson Bay Company (R., 1883, line 36), J. Boscowitz (R., 1890, line 35), and himself, representing Martin Bates, Jr., & Co., were purchasers of seal skins in the market of Victoria in 1887; that Walter Borns, Joseph Uhlman, of New York, H. Liebes & Co., of San Francisco, himself, representing Martin Bates, Jr., & Co., The Hudson Bay 11,6 Company, and I. & A. Boscowitz were purchasers in the market of Victoria in 1889. In the year 1886 all skins taken in Bering Sea and on the coast by seal hunters from the port of 258 W\ THE VALUE OP SEAL' SKINS. 259 Victoria were sold in the markets of Victoria or San Francisco. There is no evidence in the Record of any sales in that year elsewhere. Theodore Lubbe purchased in that year at Victoria Ev01882'line 16,797 skins. H. Liebes & Co., of San Francisco, purchased on the coast in 1886, 7,563 skins, and the Alaska Commercial Company bought a large quantity of skins in Victoria that year. The witness, Theodore Lubbe, was the agent for the sale of the Mary Ellen's skins hi the year 1886; in fact, as he stated, "I owned *->uao, line in her," and sold the skins to the Alaska Commercial Company's representatives at Victoria for $6.50 a skin. In that y7ear Bessinger & Co. were paying from $6.50 to #7 per skin. Lubbe testified: R.,i893,iine 1 lb. Q. Mr. Lubbe, there were purchases of the Bering Sea catch here in Victoria in 1886 ? A. Tes, sir. Q. Can you tell me what they were sold for? A. The highest I know was $7 and the lowest $6.50. The market value of seal skins in the market of Victoria in the year 1886 is therefore definitely fixed as between $6.50 and $7. The claimants demand the highest price. They should be allowed the average market price. In the year 1887 there were no skins sold directly by owners of sealing vessels in any other market than in the markets of Victoria and San Francisco. In that year Liebes & Co. purchased 17,956 skins. R-. woo. Morris Moss was buying for the Liebes firm in the 23. ' market of San Francisco that year. A total catch of 10,200 in Bering Sea was all purchased in Victoria by Uhlman, Liebes & Co., Hudson E->1883>line Bay Company, and Lubbe. The only witness sworn as to the market value of skins in the city of Victoria in the year 1887 was Theodore Lubbe, who testified that he purchased from r., 1882, line Charles Spring & Co., on the 10th day of October, 260 THE VALUE OF SEAL SKINS. R., 1882, 33. Brifc. Arg. line 13. ,85 R., 1883, 30. line' Brit. Arg line 2 R., 1883, 32. R., 1883, 34. R., 1884 4. R., 1884 13. 1887, 1,625 seal skins, at $4.50 each, and the witness added: line Yov instance, in the Bering Sea the schooner Kate did not contain any gray pups to speak of; she may have contained a few, but in the others the pups are included. In the Argument on behalf of Great Britain, Charles Spring is cited as having sold his skins that year for $7. If Charles Spring sold any skins that year at $7, it was much earlier in the year than the cargo of skins from any of the vessels seized would have been landed in Victoria. The fact is, according to the books of Mr. Lubbe, that he received $4.50 for each seal skin of the Bering Sea catch of his schooner Kate in that year. Uhlman & Co., of New York, bought of Munsie the 2,377 seal skins taken by the Pathfinder, at $6 per skin. .,85, *p^ie statement is made in the Argument on behalf of Great Britain that the skins sold by Munsie to Uhlman were less valuable because of the number of gray7 pups contained in the lot. Lubbe testified: Amongst these 2,377 there may have been 10 or 15 gray pups, which would change my figures slightly, but would, not amount to anything. line Lubbe bought the Penelope's collection of 1,500 skins at $5.50. This same year, 1887, Lubbe states line that skins were sold at the following prices in Victoria: Other skins from the Pathfinder, $5.50; from the Penelope and Theresa, $5.25. I think they are subject to a very slight increase on account of a few gray pups. It would not amount to any more than 5 ce'its per skin, line Q. And all these skins were Bering Sea skins, or northern coast1? A. Tes, sir; Bering Sea skins. Q. Gould you give us the date of that last purchase? A. October 11, 1887. line THE VALUE OF SEAL SKINS. 261 Mr. Lubbe testified that in 1887 he made this E-|71932>line memorandum in his book: "Uhlman appeared to have enough. Davis (Uhlman's agent) could have bought a lot at $5." Examined as to the average market price of skins in 1887 in the city of Victoria, Mr. Lubbe said: Q. In 1887 would $5.50 be a good fair average? e., 1933, line A. I should think so; yes, sir. 30. Q. For all? A. Tes, sir; for all. This means Bering Sea skins. Captain Warren, examined as to the market price of skins in the year 1887 at Victoria, said: Q. What was the ruling market price of skins in Victoria E., 1872, line in the year 1887 in the fall? M A. Well, as near as I can remember, it was about $5.50, what the buyers were paying here. This testimony7 conclusively establishes that the market price of fur seal skins in the city of Victoria in the fall of 1887 was $5.50. There is no other testimony in the Record bearing upon the average market price of seal skins at Victoria in that year. Affidavits originally filed by7 the claimants and E-> 190°- found in the British case presented to the Tribunal of Arbitration at Paris were read into the Record. The affidavit of Capt. James D. Warren, prepared in connection with the claims of the Dolphin, the Grace, the Sayivard, and the Anna Beck, claimed for each seal skin seized $5.50, the market value at Victoria in the E^11901'line year 1887. The affidavit filed in connection with the claim of the Ada, which was made on the 9th day7 of December, 1887, claimed for the seal skins seized by the R-, 1901, line cutter $5.50 per skin, the market value of seal skins in Victoria in 1887. The value of seal skins in the year 1888 is not directlv involved, and the testimony is not important. m 262 THE VALUE OF SEAL SKINS. tor eac h skin seized in 16. R., 1938, lin 32. The claim is made for $11 the year 1889. Mr. Lubbe testified: K.^836, line Q. You have been asked to say whether a certain sum would be a fair average of the northwest coast catch as Lampson classified them in 1889, and you also say that that is not a fair way to get an average price for Bering Sea skins. Can you give us the average price for Bering Sea shins for the year 1889 ? A. Tou mean a sum in London and here? Q. Take it both ways, if you can, or if you can not, give us either one way or the other. A. The price here was $7.75 and $7.60 in 1889. The price in London, I should thinle, would range between $9.40 and $9.50; the net results to shippers exporting sMns would be between $9.40 and $9.50, the average results. Mr. Lubbe afterwards stated that he made a sale in London in 1889 at $7.76 per skin. He again testified El41933, line concerning the market price in Victoria in 1889: Q. Taking them as they ran ? A. You can not do that. If you take 75 per cent Bering Sea and 25 per cent coast catch, the average would be more than $7.20. Q. But as they ran in 1889, from your knowledge of the market, $7.20 would be a fair average, would it? A. Yes; I should think so. Inasmuch as many skins seized from the schooners in 1889 were of the coast catch, this average price of $7.20 per skin in Victoria would seem to be a fair value for the skins taken from the schooners. The highest market price of skins in Victoria in 1889 was between $7.75 and $7.60. There is no testimony in the Record opposed to this, and in the Argument on behalf of Great Britain the price of skins is dismissed with one statement that Munsie says that he sold some in London for $11.00f. Munsie testified as to sales made in London in the He sold some at $7.92. He sold other Brit. Arg., p 85, line 45. R., 1863, line 50. year 1889. R., 1864, line skins |g lgg9 &t $g 10| The date of that gale wag October 30, 1889. He testified that he sold one lot for $11.00|. THE VALUE OF SEAL SKINS. 263 The claimants, in the original affidavits containedE-• J900' E-> in the British case filed at Paris, and which were read into the Record, all claimed the market value at Victoria. Charles Spring*, in his affidavit made in 1889, in R-, i900, line ■ , , . . 40 connection with the claim of the Kate, said: The market value of seal skins at Victoria aforesaid, at or about the time the Kate arrived from said voyage and since that time, was, and now is, $8 per skin. Samuel Bucknam, in the affidavit made in connection with the claim of the Ariel and sworn to in November,-1889, said: The selling price of seal skins at said Victoria on the said '"•■ 1900, line arrival of the Ariel and on the 1st October, about which *7- time sealing vessels usually arrive at Victoria from a fall season's voyage, was $8 per skin. The affidavits of all the other claimants contained a reference to the market value at Victoria. The claim is made for the market price at London, in the Argument on behalf of Great Britain. There Brit- £fs-> is no testimony7 of the market value of skins in London in the yrears 1886 or 1887. There is no evidence .of any direct shipment by sealers to London in the year 1887. The statement is made that Captain Warren shipped skins to London in 1887. The fact is that J. Boscowitz, who was and had been for a great many years a purchaser of seal skins in Victoria, sent his skins to London, where they were sold at the auction sales for his account. rhis shinment was not made by Captain Warren, Exhibits, p. i ^1^1 394 and the papers introduced in evidence on their face show the shipment was made by Joseph Boscowitz. The onlv other testimony in the Record of any shipment ever made to London was given by Hall, who stated that he made one shipment to London in 1888, but gave no account of the sale, and the testimony of Munsie. 264 -THE VALUE OF SEAL SKINS. Lubbe says the market price in London in 1889 was $9.40 to $9.50 net at Victoria. The United States contend, as stated in another part of this Argument, that the price of the seal skins seized is fixed by the market price ruling in the city of Victoria at the time that the vessels would have delivered then skins there for sale. No rule of law is more firmly established than that which declares that in case of a loss of cargo before a voyage at sea is completed the value of the cargo is determined by the market value ruling at the port of departure. Not only were no contracts put in evidence, but no evidence was offered that any of these claimants, with two exceptions, even intended to sell their skins on the London market. That there was a market at Victoria for the sale of skins is abundantly established, and that the claimants would have sold their skins in the port of Victoria is beyond question. In any event, had they testified that they intended to sell in London, the market value ruling in London could not control. That would be allowing damages based upon speculation, and no such rule of law has ever been established by any court. The United States claim that the value to be awarded for seal skins seized in the various years is as follows: In 1886, between $6.50 and $7; 1887, $5.50; 1839, $7.20 to $7.75. EVIDENCE RELATING TO VALUE OF VESSELS. The evidence presented to the Commissioners for the purpose of establishing the value of the vessels seized by the United States, and which became total losses to then* owners, may be divided into three heads: First, actual sales which took place at the time of the seizures. Second, the opinions of witnesses, competent from occupation and experience as experts upon the market value of vessels at that period, as to the value of the vessels seized. Third, the cost of building vessels of a class similar to those, for which claims are presented, at the time of the seizures. In discussing the method of reaching a proper valuation, counsel on behalf of Great Britain said: I propose to show that there are ten or fifteen vessels, and that those vessels actually cost so much to build. I propose to show that by the very best evidence. The commissioner on behalf of the United States suggested that actual sales of similar vessels at that time would give some idea of the market. To this the reply was made: I am going to prove the actual sales and the actual cost o/r.,120. some vessels. Again he said: How can I show better the value than by giving evidence as what vessels were sold for at that time. In view of these statements of counsel, we would anticipate that, under the first class of evidence sub- R., 103. b s- 265 m I 266 EVIDENCE—VALUE OF VESSELS. mitted, Great Britain would have proved, or attempted to prove, a number of sales at the port of Victoria of vessels suitable for sealing during the period from 1885 to 1888, inclusive. But no witnesses were produced on behalf of the claimants in reference to such sales except in the case of the seized schooner Carolena, although the record discloses that at least ten vessels changed hands at Victoria during those years. As these sales are deemed of chief importance in determining the prices ruling in the Victoria market at that time, it is proposed here to submit a summary of the evidence relating thereto, classified according to the years in which the transfers took place. 1885 or 1886. Alexander The Alfred Adams (68.75 tons) was sold.at Victoria R.,4i2,iineto Gutman & Frank. But Frank, who was a wit- 19- ness on behalf of Great Britain before the Commis sioners, was not questioned as to this sale. Alexander The Black Diamond (81.57 tons) was sold at Victoria R.°4i2e fine about the same time, and was purchased by the same 25- firm, but no questions were asked the witness Frank concerning this sale. R., 1760, line Henry Paxton, a witness for Great Britain, and part owner of the vessel, in 1886 stated under cross- examination that Gutman bought one-fifth of her in 1885 or 1886, and that witness did also, and that he (Paxton) paid $500 for his one-fifth. In November, R„ 1761, line 1887', he sold his interest to Gutman for the same consideration. 1886. A. 1 e x a n d e McLean R.,417,1111 19. The Active (40 tons) was sold at Victoria for about 83,800, to "Gutman & Co." (i. e., Gutman & Frank, : as Gutman was subsequently lost upon this vessel). The witness Frank gives no testimony" in regard to this sale. EVIDENCE—VALUE OF VESSELS. 267 The Favourite (79.54 tons) was transferred forA?,?x?'n<ler _ nr.n ,,■ , c „ McLean, S>o,000, just as she came from sea. R.,409,iine An endeavor was made on the part of Great Britain to contradict this testimony of McLean, and for that purpose Theodore Lubbe was sworn as a witness in relation to the transfers of this vessel, but his examination disclosed that the sales, of which he had knowledge, occurred in 1883 and in 1884, and to which reference will be made hereafter. The Kate (60 tons) was transferred at Victoria for Al?*?*?®r S s Six.' JU G H 11 , $1,800. Charles Spring, a claimant before the Com- R.,409,iine mission and a party to the sale, was not questioned in his direct examination regarding the transfer, but on cross-examination he corroborated the statement of R-, 892, line McLean. 5a The Mary Ellen (78-80 tons) was sold at Victoria w^er'cro"^ at the rate of "something less than $4,500." The examina- sale was evidently a matter of common knowledge, 132 ime 9. but no witnesses were produced by Great Britain to Alexander establish the consideration which passed. g 499 y,^ The Mary Taylor (50 tons) was sold at Victoria 8- 1 1 r,r>/> 11 -r\ ttt 1 p mi Alexander about looo, and. J. U. Warren, the agent ot ihomas McLean, H. Cooper, the largest claimant, on cross-examination R-^^hne states that he purchased the vessel, but no evidence r., iise, line is produced by Great Britain as to the incidents of the sale. The Juanita (40 tons) was sold at Victoria about ^J^J' 1886. McLean stated that he did not know for what R.,4i2,iine price the vessel was sold, but no witness was produced on behalf of Great Britain to disprove the statement of McLean that the vessel was sold or one to testify as to the consideration. The TJieresa (63 tons) was sold at Victoria, but noA1jJ££^*r evidence was produced on the part of Great Britain R.,4i3,iine concerning this sale. The Wanderer (16 tons) was sold at Victoria by John Sabiston, one of the witnesses sworn on behalf 268 EVIDENCE—VALUE OF VESSELS. of Great Britain in regard to the value of vessels. r. 211 line The fact of this sale was elicited from him under cross- is- examination, but on his redirect examination the wit- 51. ' uess was not asked as to the consideration, but what it cost him to build the vessel. Besides the sales which took place in 1885 and 1886, and which are of a special value in determining the market price of vessels at Victoria at the time of the seizures, the evidence discloses the following' transfers, which, though in a measure remote, have a bearing upon the question under discussion: 1882. E39n00'line Tlie w- F- Sayward (59.79 tons) was one-half sold, about the time she was launched, by Andrew Laing to J. D. Warren. Neither of the parties to the sale, who were witnesses before the Commission, were questioned as to the incidents connected with it, and the only source of information as to the consideration r., 460, line which passed is Alexander McLean, who states that 56' the one-half was transferred for $3,000. 1883. The Favourite (79.54 tons) was partly sold at Victoria to Alexander McLean. He purchased sixteen shares in the vessel for $1,337.50 (that is, at the rate of $5,350 for the vessel). The evidence concerning E-> 701> lil*e this sale was produced by Great Britain for the pmpose of contradicting the testimony of McLean, to which reference has been made above. In regard to the consideration for the sixteen shares purchased, it R., 1724, line must be borne in mind that this was "a master's 27- interest," and therefore the purchase price was higher than the usual valuation of shares to ordinary pur- R., 701, line i rni . • l i i • n 29. chasers. Ine entire vessel was again sold, in Decem ber, 1884, to C. Spring & Co., for 84,500. . EVIDENCE—VALUE OF VESSELS. 269 1884. The Kate (60 tons) was one-third sold. For theAl?xander p i • ■ i o ,1 n t McLean, purpose ot explaining a valuation ot the Onward R.,460,iine brought out on the cross-examination of Charles Spring, the bill of sale to C. Spring & Co. was produced, showing that the consideration was 82,800. E->,489()> Vme The Mountain Chief (20 tons) was sold at Victoria for "something less than 8500," but Great Britain McLean* failed to produce a witness to give the facts connected R.,409,iine -i /» 30 with the sale or to contradict the testimony of McLean. The Onward (35 tons) was sold to C. Spring & Co. for $2,200. This testimony was brought out on the cross-examination of Spring* above referred to. E'-.„8™',^ne r ° 62; 890,line 34. 1889. The Triumph (97 tons) was sold at Victoria to Mar-A1,J*£*Jt"r vin and Cox by E. C. Baker for $8,000 or 89,000. R.,4i3,iine Cox and Baker were both sworn as witnesses on be-R.^gi, une half of the claimants, but neither Was questioned 8- on direct examination in regard to this sale. Mr. Baker however, on cross-examination, stated that the vessel was sold on October 11, 1889, for 89,000, "forE-, 1431, line everything, as she was then lying in the harbor." The Triumph had 7 regular hunting boats and 2 other boats in her outfit. The cost of the 7 hunting boats r_ W22 line was $755. She carried at least 16 guns for white 48- I hunters, and her bills for firearms and ammunition H j ' amotinted to $776.70. She had returned from Bering Sea in July, and therefore presumably had remaining a considerable portion of her provisions, ammunition, and other supplies on board at the time of the sale. In the year 1886, there appear to have been 22 vessels actually engaged in sealing, from the port of Victoria. Of this number, 12 had then ports of origin on the Pacific Coast of the United States, 1 on the Atlantic Coast of the United States, 1 in Nova Scotia,. j& li 270 EVIDENCE VALUE OF VESSELS. and 8 in British Columbia; of which latter number App.B. p. 37. hut ^ were buill at Victoria, and these in the years 1881 and 1882. It is apparent that the chief source of supply for the Victoria sealing fleet in 1886 were the shipyards on the Pacific Coast of the United States, and it is a matter of common knowledge that San Francisco was the princioal market for vessels on that coast. Under these circumstances the market value of sealing craft in 1886 and 1887 at the latter port, with the custom duties on, and cost of delivery at Victoria of vessels of that class, is material in determining the price obtaining at Victoria during the period when the seizures were made in Bering Sea. The actual sales of schooners of light burthen at San Francisco during these years evidence the ruling market prices at that time. W. H. Thornley, 'a witness on behalf of the United States before the High r., 1721, line Commission, who is the most experienced ship broker °' in San Francisco, and whose firm represents 90 per cent- of the vessels registered at that port, and who has personally7 attended to 75 per cent of the transfers of sealing schooners there,- testified to a large number of sales of vessels ranging in tonnage from fifty to a hundred and thirty7, of which he had personal knowledge of the consideration. The fol.- lowing is a list of the vessels referred to, sold in 1886 and 1887, their tonnage, date of building', and the consideration which passed. 1886. r., 1722, line Addie C. Hazeltine (129 tons); rebuilt 1885; one- ||pf| half was sold at the rate of 85,000. E-'61722'Un6 Golden Gate (93 tons); built in 1874; one-eighth was sold at the rate of 85,000. R., 1722, line Irma (92 tons); built in 1883; one-eighth was 50' sold at the rate of $6,400. r., 1722, line Ivanhoe (114 tons); built in 1869; one-eighth was 'wgm sold at the rate of 84,000. • EVIDENCE VALUE OF VESSELS. 271 Page (104 tons); built in Massachusetts in 1831;E^1722'rme one-fourth was sold in 1886 at the rate of $4,000. San Jose (52 tons); built in 1886; one-fourth wasE->1722>line sold at the rate of $4,200. 1887. Barbara (107 tons); built in 1877; one-eighth wasR-, ri23, line sold at the rate of 85,216. 4' City of San Diego (46 tons); built in 1881; one-E-< 1723> liD6 fourth was sold at the rate of $4,200. Ivanhoe (114 tons); built in 1869; five-sixteenths R., 1723, line were sold at the rate of 83,200. ' ■ Lillie L. (63 tons); built in 1887; one-thirteenth R-,_i723, line was sold at the rate of 85,200. Besides the foregoing sales, Mr. Thornley testified to transfers of other vessels of the same class which appeared by the books of the San Francisco customhouse, but of which he had no knowledge as to the consideration other than that derived from the records. The list of these vessels is as follows: 1886. Bessie Ever ding (70 tons); built in 1876; one-half E-> 1796>liue was sold at the rate of $5,000. Ino (93 tons); built in 1867; one-half was sold atR->Ji-797,line the rate of $2,000. 27' JohnN.Ingalls (91 tons); built in 1875; one-eighthe-j 1797>line was sold at the rate of $4,000. 1887. Anqel Dolly (19 tons), built in 1860, was sold foi*R-, n96,iine $1,000. 16' Alton (84 tons), built in 1886, was sold for $3,000. E-^1796>line John N. Ingalls (91 tons), built in 1875; one-sixth r., 1797, line was sold at the rate of $4,200. 47- The testimony of Mr. Thornley was supplementedE-J695- Une and confirmed by Capt. Andrew Anderson, a large ship-owner and prominent shipping merchant of San Francisco, whose place of business had been for 272 EVIDENCE—VALUE OF VESSELS. R., 180, 51. R., 180, 62. R., 406, 58. R., 1261, 16. R., 406, 54. twenty years a rendezvous of sealers and other seamen. That the supply of sealing vessels was sufficient to meet the demand is established by a list of over 40 vessels in the harbor of San Francisco, which could be utilized for seal hunting and which was given by Captain Anderson; and Walter Walker, a witness produced on behalf of Great Britain, stated that vessels could be bought cheaper in San Francisco linethan in Victoria, "because there was a large number of schooners there to choose from." line *phe Canadian duty upon vessels of this class and line the cost of bringing the same to Victoria from San lilie Francisco is important in establishing at what cost these vessels could be supplied to the Victoria market. The duty upon such vessels was in those years 10 per cent, and the expense ol bringing them from San Francisco was between $235 and $250. From the lists of sales testified to as having taken place at Victoria, and from the lists given by Mr. Thornley, the following tables have been prepared which show the average price paid per ton for vessels actually sold at Victoria, and the average price per ton at Victoria for vessels built on the Pacific Coast and sold at Sai\Francisco in 1886 and 1887: Average price paid per ion for vessels sold at Victoria. liner Year. Vessels. Tonnage. Age at time of sale. Cost per ton. 1885) or \ 1886J 68.75 81.57 79.54 60 78-80 50 40 63 16 81.57 59.79 79.54 79.54 60 35 20 Years. 35 (a) 18 24 23 11 11 3 14 (a) 0 15 16 22 13 15 $30.56 Mary Ellen Wanderer Black Diamond 1887 1882 1883 1884 W. P. Say-word 100.00 C67.26 56.57 43.33 1889 Omvard 62.85 b25.00 a TTntuown. c Master's interest. EVIDENCE—VALUE OF VESSELS. 273 Average price per ton at Victoria for vessels built on the Pacific Coast and sold at San Francisco in 1886 and 1887. Year. •st Thornley list. 1886 Ad-lie (I.Hazeltine. Golden Gate Iriiui Ivanhoe San Jose Barbara City of San Diego.. Ivanhoe LilyL Second Thornley list. Bessie Everding Ino John N. Ingalls ; Angel Dolly ... Alton Barbara John N. Ingalls Ton Age at tune of sale. Cost per ton deliv nage. ered at Victoria a Years. 129 02 $44.58 93 12 61.82 92 3 79.32 114 17 40.79 52 0 93.65 107 10 55.88 46 6 91.30 114 18 33.07 63 0 94.76 70 10 82.14 93 19 26.34 91 11 51.09 19 27 71.05 84 1 42.26 107 10 53.73 91 12 53.51 a'' Cost per ton delivered at Victoria'" is based on the sale ofthe vessel at San Francisco with the duty, 10 per cent, added and $250, the highest price fixed for bringing a vessel from San Francisco to Victoria. i> Rebuilt. In contrast to this evidence produced on the part of the United States which established nine sales of sealing vessels at Victoria in 1886 and 1887, and sixteen at San Francisco in the same years, and taken in connection with the statement of counsel on behalf of Great Britain as to the value of "actual sales" as evidence of market value, is the following list of transfers at Victoria proved by witnesses produced by Great Britain, and which it is contended are of little, if any, assistance in determining* the market value, being so few in number, and their dates so remote to the time when the seizures occurred. 1890. Mary Taylor (50 tons), built hi 1875, was sold atR., 105. Victoria by Warren to Munsie for about $4,000. 1893. Vera (60 tons), built in 1888, was sold at Victoria»-, mi. for $7,442. b s 35 274 E., 141. E., 105. E., 104. E., 158. E., 159. E., 104. E., 754, 47. E., 1424, 30. EVIDENCE—VALUE OF VESSELS. Annie E. Paint (82 tons), built in 1885, was sold at Victoria about 1893 (?) for $9,400. 1894. Otto (X6 tons); one-quarter interest was bought by Munsie at the rate of $5,500. Besides these sales at Victoria, Great Britain produced evidence to establish what was the cost of vessels, purchased in Nova Scotia, when delivered at Victoria. The schooners built in the east were of a superior class of material and workmanship to those produced in the shipyards of the Pacific Coast, and were with but one exception comparatively new vessels. It is therefore contended that the prices paid for such craft are no criterion of the market value of vessels constructed of Douglas fir by less experienced builders. The list, classified by years, is as follows: 1886. Pathfinder (66 tons), built in 1879, was jmrchased in Nova Scotia by Munsie. Her cost, delivered at Victoria, was $6,500. 1887. Aurora (about 70 tons), built in 1881, was purchased in Nova Scotia for $6,600. She cost $1,200 to bring her to Victoria, making a total of $7,800. It appears, however, she had an accident in the Straits of Magellan, which undoubtedly7 added to her cost at Victoria, because of delay and repairs. Viva (about 92 tons), built in 1885, was purchased in Nova Scotia and brought to Victoria by Munsie. Her cost, delivered at Victoria, was about $9,090. Une Sapphire (123 tons), built in 1884. was purchased in Nova Scotia and brought to Victoria, but the cost of the vessel was not given. lme Triumph (97 tons), built in 1887, was purchased in Nova Scotia by E. C. Baker and Daniel McLean for EVIDENCE—VALUE OF VESSELS. 275 $5,000; delivered at Victoria in April, 1888, she cost her owners $8,250. 1890. Ocean Belle (80 tons), built in 1884, was purchased^158- in Nova Scotia. Her cost, delivered at Victoria, was $8,000. Geneva (90 tons), built in 1885, was purchased inB-,158. Nova Scotia. Her cost, delivered at Victoria', was $8,700. 1891. Dora Sieward (93 tons), purchased in Nova Scotia e., 158. Her cost, delivered at Victoria, was $9,039.20. From the foregoing list of sales at Victoria, furnished by the evidence of witnesses sworn on behalf of the claimants, and of the list of schooners brought from Nova Scotia for sealing purposes, the following tables have been prepared, showing the price per ton for such vessels in the Victoria market: Average pr ice paid per to7 for resst Is sold at V cioria. Tear. Vessels. Tonnage. Age at time of sale. | Cost per ton. 1890 50 60 Years. 15 5 8 a $80.00 Vera 124.03 114. 03 1894 Otto 86 63.95 a About. Average price per ton at Victoria for vessels purchased in Nova Scotia. Year. Vessels. Tom lage. Age at time of purchase. Cost per ton delivered at Victoria. 66 70 92 123 97 80 90 93 Years. 7 5 3 6 $98.49 a 111. 57 97.82 1890 1891 Ocean Belle Geneva 100.00 96.67 97.19 276 EVIDENCE—VALUE OF VESSELS. From the foregoing summary of the evidence presented by both parties to this controversy, the following table is submitted as showing the average market price per ton for sealing vessels at Victoria in the years 1886 and 1887, as established by actual sales. The table contains three Nova Scotian vessels, which are included to avoid any charge of unfairness, although, as alreadv stated, these schooners were far superior to those seized, both in material and construction. Price per ton in 1S86 and 1S87 for vessels at Victoria, as shown ay actual sales. Tear. "Vessels. 0to3 years old. 4 to 10 years old. 11 to 15 years old. 16 years and over. Black Diamond ;■'. ■ -'; $30. 56 1887 Black Diamond $44.58 $01.82 79.32 40.79 Barbara City of San Diego 91.30 LilyL 94.76 1886 82.14, Ino 26.34 51.09 1887 Angel Dolly Alton 42.26 53.51 JohnN. Ingalls 1886 Viva 97.82 85.05 78.20 76.30 55.47 Note The Aurora is omitted from this table, as it appears from the evidence that she met with an accident in the Straits of Magellan, which, as already stated, undoubtedly increased the expenses of bringing the vessel from Nova Scotia. The second class of evidence, relating to the value of vessels, presented to the Commissioners, partakes of the character of expert testimony, and is substantially the only7 evidence relied upon in the Argument on behalf of Great Britain to establish the value of the seized vessels. The prominence given this class of evidence by Great Britain demands a detailed ex- EVIDENCE—VALUE OF VESSELS. 277 animation of the qualifications, competency, and credibility of each witness sworn on behalf of either of the high contracting parties. The witnesses produced by Great Britain will be first discussed in the order of importance given them in the Argument on behalf of the claimants. Walter Walker, termed in the Argument "ship-Br ^^ y? Wright and proprietor of shipyard," and cited as to Une «s- the value of the Carolena, Onward, Anna Beck, Grace, and Dolphin, was a journeyman ship carpenter. It does not appear that he ever built a sealing schooner or worked upon one in course of construction, nor does it appear when he became interested in "Trahey's shipy7ard," of which he claimed to have been the proprietor; but in 1883 he was working as foreman in repairing a Government steamer and left his trade in 52. ' April, 1884, to become measuring surveyor of theE-> 175> line port of Victoria. His estimates of value are based r., isi, line on what it would cost to build vessels in Victoria in the years 1886 and 1887, and do not refer to market value, as is shown bv the following from his examination : Q. Yon can only tell what it would cost to build a schooner K., 181, line here in Victoria where they did not have the ship chandlery 40- material, and where they wonld have to pay a high price if they did get it; that is all you propose to tell? A. That is all. Q. When you testified as to the value of ships in 1886 you E-> 185» line were not very familiar with vessels that were sold in that year, were yon, or familiar with their prices ¥ A. No. .R., 175, line This witness had repaired the Favowrite after 1882, i0;i83,iine and was therefore familiar with her build and condition. When requested to place a value upon her repaired, he gave as his opinion that she was worth R., 184, line $7,000 or §8,000. The vessel, which was of 80 tons register, was actually sold, in 1884 for s4,500, and ^-J701- Une again transferred in 1886 "just as she came from sea" R., 409, line 85. 1 278 EVIDENCE VALUE OF VESSELS. R., 185, line 18. R., 409, line 67:892,line 50. R., 836, line 53. R., 980, line 35. for $3,000. Questioned as to the schooner Kate, the witness said he knew her and showed intimate knowledge of her construction. When asked, "In 1886, when she was here, what was she worth?" he replied: "I should think she was worth about $6,500." This latter vessel was of 60 tons register and was trans- ferred in 1886 for $1,800. The question was raised on his redirect examination whether he was well acquainted or not with these vessels; but it appears that he was better acquainted with them than with the Thornton, of which his valuation is relied upon in the Argument on behalf of Great Britain. He based his valuation of the Grace, Dolphin, and W. P. S. Sayward on what they would cost to build, and on the fact that they would not have depreciated in five or six years after being launched. Orlando Warner is cited in the Argument on behalf of Great Britain as to the value of six vessels, the Carolena, Thornton, Onward, Anna Beck, Grace, and Dolphin. He also was a journeyman ship carpenter and was for four years interested in a shipyard in R.,i97,iine8. Victoria; as he was so interested in 1891, he was but a journeyman in 1886 and 1887. His experience in building sealing vessels consisted in working as a journeyman on the Dolphin in 1881, and in 1890 and 1891 constructing under contract the hulls of two schooners. Between the years 1884 and 1888, inclusive, he built no vessels. He bases his valuation entirely on what it would cost to build a vessel. In regard to the value of the Carolena he testified: Q. Now, when you put her price at $3,800 or $4,000, are you thinking of what it would cost to build her? A. That is my idea; yes, sir. Q. To build her new? A. Tes, sir. Q. And you base your estimate on that? A. Tes. As a witness upon the question of the value of the R., 196, line 10. R., 1015, line 18. R.,197,line5. R., 199, line 17. R., 199, line 67. EVIDENCE VALUE OF VESSELS. 279 Grace, Dolphin, Anna Beck, and W. P. Sayward, he testified: Q. Tour estimate, of course, as usual, is based upon your R-, 1016, line estimate of cost? *3- A. Tes. Q. Entirely? A. Entirely. It is contended that the testimony of this witness can possess no weight in determining the value of the vessels seized. George W: Cavin, cited in the Argument on behalf of Great Britain as to the value of the Thornton, Anna Beck, Gi'ace, and Dolphin, was & journeyman ship carpenter, who followed his trade about half the time. E->„1028'Une His experience in 1886 appears by the following testimony : Q. Did you own any vessels in 1886? E-» 1(>2^ Une A. No. 39* Q. Buy any part of one? A. No. i^v; Q. Do you know of any sales in those years? A. No; I had nothing to do whatever with any sales. It is needless to criticise the value of this witness's testimony, further than to quote his actual language in regard to the Dolphin, in connection with the evidence of J. D. Warren, the agent for the owner, that in _ -,.„-,. 1881 the Grace (which was larger than the Dolphin) I2. cost him to build, with engines complete, $16,000: Q. Do I understand that you put a value of $14,000 on the g2 ' ne hull and spars of the Dolphin f A. Tes. Q. And outside of that she would have to be rigged and made ready for sea? A. Tes. Q. And you think it would cost about one-third of $14,000 to rig her to get ready for sea? A. About that, I think. Q. That would make about $4,700 more? A. Tes. Q. So that the Dolphin, without her machinery, would be worth $18,700? 280 EVIDENCE—VALUE OF VESSELS. Br. Arg., line 35 R., 166, 46. R., 836, R., 853, 3. R., 835, 67. R., 831, 64. R., 1713, 35. A. Tes; she would run pretty well up to that, I think. Q. And about how much would her engines and boilers be worth? A. They would be worth $3,000 or $4,000. Q. A large engine, like the Dolphin's, would be worth at least $4,000 or $5,000, would it not? A. I don't know; that ain't a part of my business; I am not an engineer or machinist. Q. But tbat would cost at least $4,000 or $5,000, you think? A. It is pretty hard telling in Victoria about how much she would cost at that time. Q. Give us your idea. Tou said $3,000 or $4,000? A. They might have cost that and might have cost a great deal.more. Q. They would at least cost that? A. Tes, they would at least cost that. Q. So that would make the Dolphin worth about $22,000 or $23,000, with her machinery in ? A. Tes; I don't think she would cost much less than that at that time. ' Hubert J. Cook, cited in the Argument on behalf of the claimants as to the value of the Thornton, Onward, said Anna Beck, as "a shipwright and proprietor of shipyards for many years at Victoria" and "an experienced builder," was proprietor of a shipyard lineprior to 1883, in which y7ear Turpel rented it, and who at the time of his examination was working as a journeyman. During the sixteen years he claims to have been engaged in building he never constructed any sealing schooners, but he calculates the value of lill6a vessel in 1886 on the basis of what it would cost to build one at that time. The capacity of the shipyard managed by Cook line is shown by his statement, that in 1878 it took him eleven months to partially rebuild the Thornton, while Matthew Turner testified that in his yard at San Francisco a 100-ton vessel usually took sixty days to build "ready for sea," but could be completed at increased expense in thirty days. Cook was ques- line- line' I* EVIDENCE-—VALUE OF VESSELS. 281 R., 853, line 14. tatedR-'6830> line tioned as to' market value iu 1886, and testified as follows: Q. How do you know what it would cost in 1886? A. Because I knew what the prices were. Q. How do you know anything about the market value of boats in 1886 ? A. So far as that goes there was uo real market value. Q. But boats were transferred from one person to another at that time? A. Tes; we used to buy some vessels from San Erancisco, and some came out from the East. As nine sales in Victoria during 1886 were testified to before the High Commission, as already shown, the incompetency of this witness is apparent. He in his examination that the Thornton in 1877 was worth $5,200. Being questioned as to the extent of the repairs he made upon the vessel in that year, he replied: She was worth more when I was done with her than sheK., 831, line was when she was built first. "• Q. Well, then, your bill would represent the complete value of the ship? A. It would at that time. He was further asked: Q. Mr. Cook, did you estimate the cost of repairing theR.,935,iine9.. Thornton in the year 1877 at $3,500? A. Tes, sir. It is unnecessary to further review the evidence of this witness or to discuss his competency7 as an expert. Richard Bennett, cited in the Argument on behalf of Great Britain as to the value of the Anna Beck, Grace, and Dolphin, was a journeyman ship carpenter, R-, 1038, line who stated that he did not know much about the vessels since 1883. His testimony7 in the case of the Dolphin and Grace is in relation to the cost of building rv 1037, une them. 30- In the case of the Avma Beck, the following appears in his examination: Q. Did you have anything to do with the sale of schooners? R 1038 line A. No. 17. ' B s 36 282 R., 188, 50. R., 189, 43. R., 189, 53. EVIDENCE—VALUE OF VESSELS. Q. From actual sales, do you know anything about the value of the fleet of sealing schooners here ? A. I would have to take account of the vessels and look over them. Q, Being a shipbuilder, do you, in estimating values, largely give your own idea of the cost of them ? A. I do. Q. Tou are quite positive that the cost was cheaper in 1881 than in 1886? A. I am. Q. The cost of building was very high in 1886? A. It was. Q. And the value of the vessels correspondingly increased ? A. It did. Q. Do you know anything about the difference in the values of vessels between 1881 and. 1886? A. No, I did not give it a thought. The knowledge and experience of this witness are entirely insufficient to give his opinion as an expert the slightest value. Alexander Watson, jr., cited in the Argument as to the value of the Carolena and Onward, was a jou/r- \me>neyman ship carpenter, who built on contract the hull of one sealing vessel, the Minnie, in 1889. He stated line that he knew of no sales of schooners in 1884, 1885, 1886, or 1887. His ignorance of values and his incompetency as an expert are shown by extracts from his examination: 16 Q. How do you know what the Carolena would have sold for? A. I do not know what she would have sold for. Q. How do you know how much she was worth ? A. I gave my opinion of her value. Q. How could you form an opinion of her value when you don't know what the market price was? A. I could tell by what I heard of vessels; it was only hearsay, of course. Q. Tou can state what she cost to build ? A. Tes. Q. That is, your own opinion? A. Tes. Q. Tou do not know of a single sale of a vessel in these years? lin EVIDENCE—VALUE OF VESSELS. 283 A. No; there might have been sales, but I don't know anything about them. He stated that he knew what it would have cost to build the Carolena in 1886, but upon being asked what such cost would have been, he replied that he would have to have the specifications, and that he did R-> 190> line not know the length, breadth, and depth of hold of the Carolena. In his examination as to the value of the Onward,E-. 858, line which he had never worked on, but had seen in the r.; 859, line harbor of Victoria in 1885, he stated that his valua-_13- ,. i -1 ii- p cn^r- • -1 E-> 858, line tion was based on a calculation ot s 125 per registered 68. ton to build a new vessel of that class in 1886; and on this basis he valued the Onward at from $4,325 to $5,000. His testimony7 discloses the incompetency and ignorance of this witness. S. McC. Smith, cited in the Argument on behalf of Great Britain as to the value of the Grace and Dolphin, was for a number of years a master shipwright, working at his trade in Victoria; and his examination disclosed three sealing vessels upon which he worked in E-'0191> line that capacity; but his experience, in which he noted the cost of building, was confined to the years 1890, R'|81013'line 1891, and 1892. When questioned as to the Carotenes value, he stated that he never had seen her, but E''0194' llne he imagined that she would be worth about $3,600 or $3,700. He is not cited in the Argument in the case of the Carolena, presumably either out of deference for his method of valuation or because his imagination was not strong enough to bring his figures as high as the other witnesses sworn. He based his valuation of the Grace and Dolphin on what it would cost to build them in 1886. It is contended that this witness has not been shown qualified to give testimony7 as an expert for the years 1886 and 1887. John J. Robinson, cited in the Argument on behalf E->155 R., 1010, line 13. » 284 EVIDENCE—VALUE OF VESSELS. R., 156. R., 153. R., 15! of Great Britain as to the value of the Carolena, was a journeyman ship carpenter, employed at the yard of Andrew Laing, one of the claimants before the Commission. The witness stated that he never built a sealing schooner, never bought one, and never sold one. Furthermore, the Record does not disclose that he ever worked upon any sealing vessel excepting the Carolena at the time when she was lengthened, in 1884. The value of the testimony given by this witness is best shown by extracts from his examination. Q. In the course of your business here have you acquired a knowledge of the value of vessels? A. No, I could not say that I have; I have general ideas all round. Q. Have you any opinion as to the value of the Carolena at that time? A. I should think she was worth between $4,000 and $5,000. Q. Have you any opinion as to the cost of building vessels per ton in Victoria at that time and prior to that time? A. Oh, I suppose all the way from $150 up, builder's measurement. R., 156. A. I have never built any schooners. That is my idea. Q. After you had completed your work on the Carolena, at what did you value her per tou ? A. Oh, I suppose about $165. Q. She was worth then more than it would cost to build a new vessel? A. Tou have got to take the vessel apart. Tou can not take her apart for nothing. Q. Then that vessel that has been cut in two, and has been lengthened, is better than a new vessel? A. No, sir; certainly not. It takes more labor to do it that way; she is worth more after you have finished. It takes more labor in proportion to do that work. Q. Is she worth more than a new vessel of that length? A. I don't say she would be worth more to her owner. Q. Was she worth more on the market? A. I understood she was worth about $5,000. The witness is, from his own evidence, clearly incompetent to give testimony as to the value of any sealing vessel. EVIDENCE—VALUE OF VESSELS. 285 Henry F. Siewerd, cited in the British Argument R,>157, on behalf of Great Britain as to the value of the Carolena and Ada, was a sealing captain who had nothing to do with the sealing business prior to September, 1887. His only experience as to the value of vessels is in connection with the purchase of three schooners in Nova Scotia, the first one of which he brought to Victoria in 1888. The following from his testimony aonears in the Argument on behalf of Great Britain: Br. Arg., p. 1 l 90, line 38. A. I am not acquainted with the Carolena. Q. But from your knowledge of vessels, take a vessel in 1887, suitable for sealing, and of the tonnage of 32 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 18911 paid $3,200 for a vessel about thirty years old. To which should be added: Q. What tonnage was she? A. Fortv. R., 160. The Carolena was built the same year as the vessel App.B,p. 29. he mentions, and was 27.36 tons, according to the survey made of the vessel in 1884. His ignorance of the Carolena and of market value in 1886 divests his opinion of the slightest weight. His inexperience in purchasing vessels and his ignorance of the Ada, for which he made an offer in 1887, show that his valuation of her is mere speculation. John Sabiston, cited in the Argument on behalf of R.,208, line Great Britain as to the value of the Carolena, was a- Nanimo pilot who never built a .sealing vessel, but. had had "boats" built in 1872 and 1893. On the 5. cost of building in 1872 and 1893 he bases his opinion of what it would cost to build a vessel like the R., 211, line Carolena in 1884, and he fixes it at $5,000. That 10" he is utterly incompetent to place a value upon any vessel in the years when the seizures were made, or 211. line 211, li: 286 EVIDENCE—VALUE OF VESSEL8. at any time from 1880 to 1890, is evident from his testimony. William Sleightholme, cited as to the value of the Thornton, was a journeyman ship carpenter who had E-> 964> linebeen employed on the A7essel in making the usual annual repairs. He had never been a contractor or E-> 965> Jine master shipwright, and had never bought or sold a r., 965, line vessel. His knowledge of the cost of material for oi' ship building was confined to the purchase of masts E-> 965> ^ofor one- vessel. His valuation of the Onward was 44, R., 52. R., 166 R.fi66, HnePentei* until 1883 50. m, line based upon what it would cost to build a vessel in the port of Victoria in 1886. The evidence of such an inexperienced man, even so far as the cost of construction is concerned, can be of no value, line William Turpel worked as a journeyman ship car- I that year he rented ways and used them until 1885, building two small tugboats in that time. He then again became a journeyman, and remained so until 1887, when he bought the "Center Shipyard," and continued there until the present time, building hi those ten years two sealing schooners line and "quite a few tugs." In 1889-90 he built the 2ine schooner Maybelle, and in 1890—91 the Sadie Tu/r- 57. pel. The witness, who is undoubtedly the most ex perienced shipwright sworn on behalf of Great Brit- r., 84i, line ain, was called in the cases of the Carolena, Thornton, line 27. ' Dolphin, Grace, Anna Beck, and W. P. Sayward. In regard to all of these, excepting the Carolena, he stated that he was not familiar enough with the ves- R., 166 54. R., 167 R., 169. sels to fix a value upon them ! of the Car his opinion that In the case of the Carolena, on direct examination, jave if she was as good as they ne w , say she was," he should think she would have been r., 171, iineWOrth about $4,000. On cross-examination Turpel was asked: "From your personal knowledge of the Carolena are you competent in yow own mind to place a value upon her?" to which he replied, "No." EVIDENCE—VALUE OF VESSELS. 287- The witness also stated that the cost of building a E-> m vessel in 1886 and 1887 was from $175 to $200 a ton. On the same ratio the cost of building a vessel in San Francisco, deducting the duty and expense of delivery to determine the cost of such vessel delivered at Victoria, would have been from $150 to $175 per ton. An :R-^GS8> Un6 examination of the evidence of Matthew Turner, the San Francisco shipbuilder (which is later reviewed), discloses that such a figure would have been largely in excess of the actual cost in 1886 and 1887 at the latter port. This statement of Turpel shows conclusively why sealing schooners were not being built at Victoria in those years, and demonstrates that the cost of building at that port is not even remotely a basis for calculating what would have been the cost to the owners of replacing the seized vessels. Richard Collister, cited in the Argument as to the value of the Ada, was inspector of hulls at Victoria since 1884, previous to which time he had been a ship ^'iJ31 • e carpenter. In 1883 the witness had worked as a jour- R., i3H, line neyman on the Dolphin, and in 1887 had surveyed the schooner Ada for the underwriters at San Francisco, although his official duties were confined to the inspec-' tion of vessels using steam. In his cross-examination E-, 1313, line 29 the following appears: Q. Do you know anything about what the cost of the Adan., 1313, line was? 58. A. I have no idea. Q. And in fixing the value, do you estimate the cost to rebuild her at Victoria ? A. I estimated her at what she would sell for at that time in Victoria. Q. Tou are quite familiar with the sales of other vessels? A. I knew vessels' value at the time. Q. How did you learn that? A. Because they were in great demand. Q. Did you know of the buying or selling of any vessels Lur., 1314, une 1886? 5. A. I did not. Q. 1887 or 1888? A. I knew nothing.about the sale of vessels. 288 EVIDENCE—VALUE OF VESSELS. R., 216 60. R., 216 52; 21' 4. R.. 217 24. R., 217 56. It is clear from his evidence that his valuation was based entirely upon what it would cost to build a vessel in 1887, and as his experience in ship building, even as a journeyman, was previous to 1884, his testimony is valueless for the purpose for which it was produced. iine John Clark was a journeyman shipwright, who came to Victoria about 1884, and who, since 1888, has been line a contractor on his own account, during which time, ,iine^n tjie w^te!- 0f 1891-92, he built two sealing schooners of 69 tons each for $8,750 and about $9,000, respectively. His evidence is produced for the purpose of showing that the cost of building vessels had decreased at Victoria from 1886 to 1892. Although the cost of building at \ ictoria in 1886 has little bearing upon the question of market value, and the cost in 1892 is still more immaterial, the witness establishes his own incompetency by his testimony7: line Q. Well, there was no building here in 1886 of sealing ships, was there? A. No, sir. Q. Nor in 1S85? A. No, sir. Q. Nor in 1884? A. I don't think so. Q. Nor in 1887? A. Not that I know of. une Q. Tou can not tell anything about the cost of a ship in 1884,1885,1886, and 1887? A. Oh, I had nothing to do with them at that time. Redirect examination: Q. In the answer which you have given to the last question, have you in mind sealing vessels or vessels of all sorts? A. I merely answered the question that I had nothing to do with sealing vessels at that time. I was repairing. The only value of the testimony of this witness, is to show that a journeyman shipwright is incompetent to give expert testimony as to values, and that one engaged in repair work had little or no knowledge of the cost of building a vessel. EVIDENCE—VALUE OF VESSELS. 289 R., line : Samuel Sea, in the Argument on behalf of Great 3\£*f> 105> Britain, termed "a shipbuilder of large and long experience, and familial* with the Onward," was a ship carpenter, who built two schooners, "such as areB'<_856> line used for sealing," in 1863 and 1868, and who last built a vessel in 1872. He was sworn on behalf of GreatK'i8856' line Britain as to the value of the Onward in 1886, on which he did some repair work in 1878 and 1880. The knowledge he possessed of the Onward outside of the question of his general experience is shown by the following testimony: Q. Have you seen the Onward since you, worked on her?E-> 857, line A. Tes, I have seen her when she used to come into harbor. Q. Have you been upon her? A. Tes. Q. Have you seen her since 1886? A. I can not say I have seen her since 1886; I might. Q. Are you positive you saw her between 1880 and 1886 ? A. I think I have. Q. Well, are you positive? A. I can not exactly swear, but I am almost sure. Q. Are you about as sure that you saw her since 1886? A. Tes. His incompetency is apparent. James Gaudin, sworn in relation to the condition and value of the Ada, was the master of the vessel and an alleged personal claimant before the Commission. He is only7 cited in the Argument as to his- .. statement that the Ada was the best sealing schooner 127, line l in the harbor of Victoria in that year. His opinionE" ' ; as to her value does not appear to be relied upon. No attempt was made to qualify him as an expert on the value of vessels, and his evidence discloses he had no knowledge on which to base an opinion. As this cruise on the Ada was his first and only experience with sealing craft, his statement as to the superiority of the vessel possesses no weight, as evidence. He is clearly incompetent to give any testimony as to value. b s 37 34. mil- 290 EVIDENCE—VALUE OF VESSELS. John Irving, a witness, who had been engaged in buying and selling vessels at Victoria since 1874, was sworn in the case of the Ihornton, but his opinion as to what it would cost to build such a vessel in 1886 is not referred to in the Argument on behalf of Great Britain. His ideas are so exaggerated, and his ignorance of the vessel so evident, that his opinion is of no value. The foiu* remaining witnesses upon the value of vessels, sworn on behalf of claimants, and cited in the Argument on behalf of Great Britain, are J. D. Warren, one of the personal claimants and the agent of Thomas H. Cooper, the largest claimant before this High Commission; William Munsie, Charles Spring, and J. J. Gray, three of the principal claimants (who for themselves or others represent claims, which, as submitted in the Argument, aggregate over $500,000). The evidence of these witnesses, who possess a common interest in enhancing the value of sealing vessels at Victoria, and especially the schooners seized, must be received with the utmost caution. That all of them possess a certain amount of experience as to the value of vessels is unquestioned, but that they did, under the circumstances, and in view of the doubtful credibility of the three first mentioned (as disclosed by portions of their testimony), give a fair, unbiased opinion of the value of the vessels, as to which they were examined, is not probable. In the report of the committee apr board of trade, which was so relied upon by Great Britain in the Geneva Arbitration, the following observations appear, and are quoted in the counter case of Great Britain: Geneva Arbi- It wDl be at once admitted by those who are at all familiar tration, with the practice of the courts in maritime cases that it is count er impossible to place much reliance on the opinion or evidence Great Brit- °f shipowners or merchants as to the value of property, ain, p. 131. which they are seeking to recover. Shipowners are in the lointed by the EVIDENCE VALUE OF VESSELS. 291 habit of founding their estimate not on what would be the market price of the vessel at the time of her loss, but on the original cost price, and often take into account the amounts which they have expended at different times without any proper deduction for the wear and tear and damage which has been sustained. These observations apply with equal force to the opinions and evidence of these three claimants and the agent, Warren, who are relied upon in estimating the value of the vessels seized. It is also to be noted that William Munsie is not called as a witness on value in the case of any vessels but his own; that Charles Spring stated that the 0n-Vx ward was valued in the sale of the firm property of W. Spring & Co. at $2,200 and the Kate at 82,800; and that the latter vessel was sold in 1886, at the time r of the dissolution of the partnership of C. Spring & Co., for $1,800, while he claimed the value of the former was in the same yeai* $4,000, modifying, how- R ever, his valuation by saying, "considering that she k was worth every bit of that to me at that special time;" and that James D. Warren testified that the five vessels for which his principal makes claim were offered '£3 ' ne for sale at public auction in the fall of 1885 and would not bring the face of the mortgages, which are much less than the amounts claimed as the value of the vessels by Warren, who had charge of the Cooper claims. Having reviewed the qualifications and testimony7 of the witnesses sworn on behalf of the claimants, as experts, itis proposed to discuss those who were' sworn by the United States. Alexander McLean, a Nova Scotian by birth and E., 429, line from boyhood engaged in seafaring on the Atlantic coast, came to Victoria in the year 1880, and was for , 890, ii. line , 892, 50. line 863, line two years sailing from that port in different vessel during which time he was mate of the Government steamer connected with the department of marine and fisheries. He began his experience in sealing in R., 400, line 30. R., 400, line 58. 292 EVIDENCE—VALUE OF VESSELS. R., 419, 24. line R., 404, 406. R., 459, 62. 405, line R., 265, line 68. R., 1420 , line 32. R., 701 line 20; 701, line 29; 890, line 34; 752, line 15; 1305, line 54. 1882, as navigator of the schooner San Diego; since then he has been master of a sealing vessel, excepting in the year 1883, when he again sailed as navigator on the San Diego. He became a member, in 1884, of the firm of C. Spring & Co., which was engaged in trading on the west coast of Vancouver Island, and which also owned several sealing vessels, retaining his connection with that firm until its dissolution in December, 1886. He testified that it had been a part of his business to keep posted as to the sales and transfers of sealing vessels on the Pacific Coast, and showed his familiarity with the market at Victoria by testifying as to the number of sales which occurred in 1886 to his personal knowledge, and which have already been reviewed. His familiarity with the sealing vessels which were at the ports of Victoria and San Francisco in the years 1885, 1886, and 1887, is shown by an examination of his testimony, in which he gave the tonnage of the vessels and the years in which they were engaged in sealing. Besides his experience in Victoria, Captain McLean was employed by prospective purchasers to inspect vessels which were offered for sale at San Francisco. The witness Bragg stated that Capt. Alexander McLean and his brother were the two most experienced men in the sealing business at Victoria in 1886, and E. C. Baker, a claimant before the Commission, said that Daniel McLean "and Alexander McLean at that time (1889) and previously were considered the men best posted in that business." Every effort was made on the part of the claimants to shake Captain McLean's testimony by rigid cross-examination, and to destroy its effect by rebutting evidence, but in no single instance do we find, in an examination of the entire Record, that the attempts were successful; in fact, in many instances where witnesses were sworn for the purpose of contradicting him, I EVIDENCE—VALUE OF VESSELS. 293 cross-examination brought out a full corroboration of the testimony which he gave. It is to be noted thatR., 890, line Captain McLean was part owner of the Onward and Favourite, two vessels ■ for which claims are made before the High Commission. It is asserted by the United States that this witness is shown by his own evidence, and by the evidence of every witness who was sworn for the purpose of rebutting his testimony, to possess more experience and qualifications to be an expert as to the value of vessels at Victoria in 1886 and 1887 than any witness which appeared before the Commissioners. Charles E. Raynor, who commenced his experience E-a 492> Une in sailing from Pacific ports in the year 1871, and who became master of a vessel in the year 1875 and of a sealing vessel in the year 1886, showed by his testimony familiarity with the seating fleet at San Francisco and knowledge of the market price of vessels in that port. His entire experience as to theR., 493, line market for sealing craft is confined to the ports of San 32;503,ime Francisco and Seattle, and his testimony in relation to the valuation of vessels is based upon that experience. In 1887 he had charge of the construction ofE-. *92> line the Allie L. Alger at Seattle, purchasing the material and superintending the work. In 1889 he inspected the Ada on behalf of James C. Nixon, who bought R., 1249, line the vessel under his advice when she was sold at Port Townsend. In 1886 Captain Raynor was seized on the San Diego and taken to Unalaska and Sitka. He E-^1247>Une was again seized on the Allie I. Alger in 1887 and taken to the same ports. His testimony as to the value of the vessels seized in both these years is of peculiar importance in that he examined them after then* seizure, and could testify particularly as to their condition. That his valuation of these vessels is based entirely on experience in American markets does not deprive it of the weight to which it is entitled, as it is merely a question of addition of the 33. , 494, line 10. 44. 294 EVIDENCE VALUE OF VESSELS. R , 468, R , 469, 3. R , 470, 18. R , 469, 17. R , 479, 40. R , 469, R , 478, 53. R , 469, 50. 1'-. 170, 27. R., 477 65. R., 530, 30. R., 529, 55. R., 529, 68. R., 529, 62. custom duties and cost of delivery in order to reach a proper valuation in the port of Victoria. A. B. Alexander, who since 1888 had been employed by the United States .Fish Commission on the line Pacific Coast, and previous to which time had resided line at Gloucester, Mass., since the year 1864, was sworn on behalf of the United States in relation to the value of the Carolena, which he had seen on the beach at liueUnalaska in the summer of 1888. Mr. Alexander during his residence at Gloucester had been engaged line in the fisheries, in sailmaking, and in assisting his line father, who was a shipbuilder of Gloucester. He testified that he knew of the cost of construction of line vessels at that port, and on coming to the Pacific line Coast in 1888 he examined the fishing vessels there ,. employed (which are similar to those used in seal- lme. \ < . K. . , ,. ■■ . mg), their rigging and construction, making notes at the time for general comparison with the vessels on the North Atlantic; that his investigations covered the age, general condition, rig, material, and cost of fishing and sealing craft, and that his reasons for such examination were his own interest in such matters and the fact that he might be called upon to give information upon this subject to the Fish Commission. He examined the vessel as to which he testified with care, and detailed her construction and condition at that time. line From his experience, which was fully brought out in his cross-examination, it is plain that the witness was competent to give testimony7 as to the value of the Carolena. Hue E. P. Miner was sworn as a witness on behalf of the United States as to the value of the Carolena. He had been engaged since 1875 upon fishing and liue hunting vessels, and had sailed from the ports of San Hue Francisco, Yokohama, Victoria, and Seattle. In 1885 he became master of the British schooner Penelope, and since that time up to 1895 had been a master of ft EVIDENCE—VALUE OF VE88ELS. 295 532, line 530, line 555, line -:s7. line 63, line '36, line sealing vessels. He stated that he knew every vessel E-.i 530> nne that was engaged in sealing in 1886 and 1887, and that two-thirds of them were originally built in San Francisco. That he was familiar with the market at !« San Francisco is shown by his testimony, and that in R-, giving an opinion as to the value of the Carolena he r. was guided chiefly by his knowledge of market *& values at that port. He testified also concerning the so, building of vessels in California, and showed an inti- jg mate knowledge of their construction, material, andu.. «~„+ 38 cost In giving evidence as to the value of a vessel on the market in 1886 and 1887, the opinion of Captain Miner is of a special importance because of his evident familiarity and long experience with vessels of the class under consideration, and because of the clearness with which he showed upon what grounds he E *&, it-, based his statements. His testimony in regard to the 40. /nf«._«7«_ i •„„i.*„C l-'Ju l>_ _ J~ B.,587.1ine8 Carolena rested upon an examination which he made of her in 1889 at Unalaska. He described her model, material, and construction, and explained fully how she differed from marketable vessels in 1886. It appears from the foregoing review that 21 witnesses were sworn on behalf of Great Britain as to the value of the vessels seized. One of these was a master shipwright, one the manager of a steamship company, one a pilot, and ten journeymen ship carpenters. These thirteen witnesses all testified as to values upon the basis of what it would cost to build vessels at Victoria in 1886 and 1887. The remaining witnesses are a sealing captain, who had no experience in the business prior to September, 1887; an inspector of hulls of steam vessels at Victoria, the agent of the largest claimant; three of the claimants before the Commission; and an alleged claimant. These seven testified as to the value of vessels in those years. The remaining witness is a shipbuilder (William Turpel), and the most experienced 296 EVIDENCE—VALUE OF VESSELS. of the witnesses sworn on behalf of Great Britain, but he fails to place a value on any vessel from his own knowledge. The witnesses sworn on behalf of the United States are four, three of them the most experienced seating captains on the Pacific Coast, who from their comprehensive knowledge of the sealing business were fully competent to fix a value upon the schooners seized. The fourth witness'was an employee of the United States Fish Commission, who had been familiar with the class of vessels used in sealing from boyhood, and with those on the Pacific for the past ten years. All of these witnesses give testimony as to the market value of the seized vessels. The third class of evidence submitted to the Commissioners, but which can only be relied upon in case it is deemed a market price has not-been proved, is the cost of constructing vessels of a similar class. It is apparent, from a review of the summarized evidence of witnesses sworn on behalf of the claimants as experts, that from the year 1883 to 1889, inclusive, there were no vessels built at Victoria. The only evidence which was submitted under this head on the part of the claimants, excepting in the cases of seized vessels, related to the years 1890 and 1891, when it appears that increased facilities for the. transportation of the necessary materials from the East had made it possible to build vessels at Victoria in competition with the large shipyards of San Francisco. The vessels built at Victoria in 1890 and 1891, of which evidence was given, were the following: 1890. r., 167. May Belle (57 tons) was built by William Turpel for $6,500. r., 168 Sadie Turpel (56 tons) was built by the same man for $10,500. EVIDENCE—VALUE OF VESSELS. 297 Diana (53 to 56 tons) was built and launched inR-, 197, line this year. Her hull, spars, etc., without rigging, sails, ° ' or furnishings, were supplied by Orlando Warner for $2,800. 1891. Charlotte Cox (83 tons) was built and launched inR., 196, line this year. Her hull, spars, etc., without cabin fur- ° ' nishings, rigging, or sails, were supplied by Orlando # 200 line Warner for $5,600. He estimated the balance of 34. her cost at $2,800. Victoria (69 tons) was built, according to Captain E->159- Siewerd, at a cost of over $11,000. McDonald and Clark were the contractors. Clark, who was a witness E-, 159. before the Commission on behalf of Great Britain, stated that the price which they received for the con- R... 216, line struction was $8,750. Enterprise (69 tons) was built by Clark at a costE-> 216» ^n& of $9,000. Besides these vessels there is no testimony produced on behalf of Great Britain in relation to the cost of building vessels at Victoria, excepting the three "Cooper" vessels, which were launched in 1881 and 1882. There is some evidence before the Commissioners as to the cost per ton for building at Victoria in the years 1886 and 1887, but in view of the fact that no vessels were constructed this testimony must have been mere speculation on the part of the witnesses who gave it. It is contended on the part of the United States that there is no evidence presented on the part of Great Britain as to the construction of sealing' vessels at Victoria which has the least bearing' upon the market value of vessels at that port in the years 1886 and 1887. As the cost of building vessels, in the absence of evidence establishing a market price, may be entered upon in determining value, it is considered advisable to fully discuss the evidence, although it is claimed by b s 38 298 EVIDENCE—VALUE OF VESSELS. R., 1686, 20. R., 1687. R., 1689, 2. J*.., 1718, R • , 1' ri8, 30. R ., 1718. 34. R ., s 37. '18, R •, 1" 40. '18, R I1 42. 119, R am S 719, the United States that a market price at Victoria has been shown. The principal witness and expert on the cost of buildingvessels on the PacificCoast in 1886 and 1887 was Matthew Turner. He came to San Francisco in 1850, and, having purchased a schooner in 1853, commenced a coasting trade. Until 1871 he continued his occupation as a master of a vessel, owning at the same time two other vessels. In 1871 he established a shipyard at San Francisco, having learned the trade of shipbuilding at intervals between 1853 and 1871. From that time until the present (1897) he has constructed 188 vessels of from 20 to OArer 400 tons burdei i. I lis shipyard is the best known on the Pacific Coast, and excepting one at Port Blakeley, in the State of Washington, the largest. His knowledge and experience make him an expert of the highest class. During the past fifteen or twenty years he has con- structed numerous sealing schooners, and other craft, suitable for seal hunting. In 1885 he built six ves- linesels of this class, and in 1886, five; all of these were built and furnished complete '' ready for sea." Turner stated that in those years a vessel of 30 tons cost approximately $115 a ton to build, and that a 70-ton line vessel cost about $90 a ton. La his cross-examination he was questioned as to vessels which he had constructed. His evidence can be summarized as follows: line Emma (42 tons), built in 1885 for $5,800. line San Jose (R. 51 tons), built in 1886 for $5,200. line Pearl (83 tons), built the same y7ear for $9,500. line Moi Wahne (83 tons), built at the same time at a cost of $9,000. line Lavina (68 tons), built in 1886 for $7,232. The witness explained that in the case of the Emma lini line she was finished as a yacht, with awning, etc., at an extra cost of $1,000; and he also explained that the 1 ~1 EVIDENCE VALUE OF VESSELS. 299 Lavina had extra furnishings, which increased her cost beyond the usual price per ton for a vessel. It should also be noted in this connection that Captain r.; 408, line McLean, whose experience has already been dis- 28- cussed, fixed the average price per ton for a new sealing vessel, "ready for sea" in the port of San Francisco, at SlOO. In connection with the cost of building sealing R-, 1690, line vessels, and in order to make such evidence material in determining market value, it is necessary to consider the annual depreciation or "wear and tear" of vessels, which also becomes important in determining the value of vessels which had partially completed their voyages. Turner stated that, with ordinary care and repairs, a vessel depreciates about 10 per cent per annum. His reasoning upon this question r.( 1691. of depreciation is extremely clear and full. Captain Anderson, whose experience has already R-, 1700, line been fully discussed, stated that the annual depreciation is about 10 per cent, adding that there is a difference of opinion as to the first year after building; that some consider the wear and tear at 10 per cent, while others place it at but 5; and that he would consider r., 1700, line that a vessel twenty years old, kept in a seaworthy 51" condition by repairs or partial rebuilding, would be worth approximately 40 per cent of her original cost. In the examination of Captain Siewerd, a witness sworn on behalf of Great Britain, the following appears: The Commissioner on the part of the United States: R-. 1244, line r 53. Q. "What would the ordinary wear and tear be? A. The ordinary wear and tear would be 10 per cent. The Commissioner on the part of Her Majesty: Q, Do you deduct 10 per cent for wear and tear oh a vessel R., 1244, line two years old? 61. A. It is the custom to allow that on the average every year as we go along. The following appears in the examination of J. D. 300 EVIDENCE—VALUE OF VESSELS. R., 916 67. R., 1692, 62. R., 1695, 20. R., 1692, 25. R., 1693, 4. Warren, agent of the principal claimant before the High Commissioners: By the Commissioner on the part of the United States: line Q- What would it cost to refit this Thornton f I do not mean the outfit; but you say you thoroughly refit every autumn; how much did it cost each year to refit—take the Thornton, for instance? A. Well, she would cost, oh, I should say Q. 1 am speaking simply of .the vessel herself, to make good her wear and tear? A. I think she would take fully $1,000 a year, one year with another; one year she might not take so much and another a good deal more. Q. Do you mean the wear and tear would be as much as that? A. The running gear is a good deal, and the sail is a good deal, and then they have to be thoroughly overhauled and repaired, and if they require any caulking,, to get it, and once in a few years liave to put in new chaffing, and overhaul them. Q. Do you mean a vessel of the size of the Thornton would take that? A. I think she would take fully that. Q. That would represent the wear and tear, would it? A. Tes; I think she would take about that. The sealing business is a pretty hard business on these little vessels. line Matthew Turner, in further discussing the question line of depreciation, stated that in his opinion a vessel which had been lengthened would decrease in value from 15 to 20 per cent per annum, and that a vessel whose hull had been injured by refitting for steam would depreciate more than the annual rate of 10 per cent, line His explanations as to how a vessel would be injured line by lengthening, and how affected by putting in steam, are full and explicit. It is asserted by the United States that in any consideration of the cost of building vessels, which may be deemed necessary for the ^^Spose of determining market value, the question of depreciation must also be taken into account, and that such vessels among those seized as had been EVIDENCE VALUE OF VESSELS. 301 lengthened or fitted with steam must be valued in the light of Mr. Turner's testimony. The United States claim that from the foregoing review of the evidence submitted in relation to the values of the vessels seized for which claims are made, the following facts have been established: First. That in the years 1886 and 1887 there was a market at Victoria for vessels suitable for seating, and therefore a market value for vessels of that class in that port. Second. That there were no shipyards at Victoria at that time which were employed in the construction of sealing schooners, but to a certain extent the shipwrights there were engaged in repairing vessels used for sealing purposes. Third. That the source of supply for the Victoria market in 1886 was San Francisco, and the market price at Victoria was governed by the prices ruling at San Francisco, with the customs duties and cost of transportation added. Fourth. That the source of supply for the Victoria market in 1887 was San Francisco and Nova Scotia, and that the market price at Victoria was governed accordingly. Fifth. That the cost of building vessels in 1886 and 1887 at Victoria must be conjectural, based on no actual experience, and excessive of the cost of vessels imported from San Francisco or Nova Scotia; and that such cost of building, even if it could be established, would form no basis upon which experts could calculate the market value of vessels in those years. Sixth. That shipwrights engaged in their trade at Victoria in 1886 and 1887, who possessed no knowledge of sales of vessels at that port or at the port of San Francisco, and whose knowledge during this period of the cost of building does not come from 302 EVIDENCE—VALUE OF VESSELS. other experience than making repairs, are incompetent to give expert testimony as to the value of the sealing vessels in question. Seventh. That witnesses who in 1886 and 1887 were familiar with the market of San Francisco and the ruling prices there, and witnesses who had knowledge of sales and transfers of sealing vessels at Victoria, are competent to give expert testimony as to the value of the vessels in question. Eighth. That the sales of sealing schooners at the ports of Victoria and San Francisco during the years 1886 and 1887 are proper data for the computation of the market value of vessels in those years. Ninth. That the remoteness of Nova Scotia, the superiority of the vessels there produced in material and construction to the schooners built on the Pacific Coast, ami the small number procured—from there in 1886 and 1887, make the prices paid for Nova Scotian vessels delivered at Victoria of but little value in establishing the market price of schooners at the latter port. Tenth. That the sales of vessels at the port, of San Francisco form a proper basis for the computation of the market value of sealing vessels at Victoria in the years 1886 and 1887; and in the absence of proof of an actual market value, the cost of building in the former port. Eleventh. That the number of vessels, sales, and transfers at the port of San Francisco in 1886 and 1877 is evidence of the supply which existed for meeting the demands of the Victoria market. It is proposed at this point in the Argument, and m connection with the preceding review of the evidence and witnesses produced by both high contracting parties, to briefly examine the claims made for vessels seized by the United States, and for the value of which it is asserted the United States have become liable. In all of the testimony as to value, it is claimed that EVIDENCE—VALUE OF VESSELS. 303 wear and tear which the vessel had suffered at the time of seizure must be taken into consideration. CAROLENA. The Carolena, seized the 1st August, 1886, wasApp. b, 29. built at San Juan, United States, at a date uncertain. She was registered at Victoria in 1870. The vessel was 55.8 feet in length, 16.5 beam, and 5.5 depth of hold, with a gross and registered tonnage of 27.36. E-> 470> line She was constructed of soft wood, and fastened with block iron, not galvanized. The wood used wasR., 178, line Oregon pine or Douglas fir. 8. Mr. Alexander, who saw the Carolena in 1888, statedR, *70, line that she had "primitive lines as compared with mod-R.; 488, line era build," and that she was of an "old-fashioned 6i- type," "full bow," and "had but very little dead rise," and that "she had very full lines from bow to aft all over." Captain Miner also said of her that "she was a very E-> 537, line old style—that is, in model." James D. Warren spoke of her as a " small-sized" R.229. ^ne vessel of sharp build, but added that he did not examine her after she was rebuilt. Of the witnesses sworn on behalf of Great Britain as to the value of the Carolena, six base their opinion upon what it would cost to build a vessel new in Victoria at that time. Their occupation and the valuations they give are as follows: John Robinson, journeyman ship carpenter, $5,000. E->15i- Walter Walker, journeyman ship carpenter, $4,000. R,r78,iine4. Alexander Watson, journeyman ship carpenter, R., 188, line about $4,000; and is so cited in the Argument on behalf of Great Britain. The last witness, on being corrected as to his ideaR. wo, line 1 • 50 of the size of the Carolena, changed his valuation toE '19Q une $3,375. P ' Orlando Warner, journeyman ship carpenter, R> 197, line $3,800 or $4,000. ^ ft 304 EVIDENCE VALUE OF VESSELS. 20. R. 169. John Sabiston, Nanaimo pilot, 85,000. R-9n94' Une £>• McC. Smith, master shipwright, who never saw the vessel, imagined she was worth about $3,600 or $3,700. Besides the foregoing witnesses, William Turpel, proprietor of a shipyard at Victoria, placed a value of about *4,000 upon the Carolena, "if she was as good as they say she was." 42. ' James D. Warren, agent of the principal claimant before the Commission, stated that he would consider the vessel worth $4,000, although he did not examine her after she was lengthened. R.,24i,iine7. Charles Spring, also a large claimant before the Commission, placed her value for sealing purposes to her otvner in the neighborhood of $3,800 or $4,000. William Munsie, the alleged owner of the vess.el, stated that she was valued in 1885pwhen he became interested in her, at about s3,800, but that he would "not be positive." According to the considerations expressed in the various bills of sale to and mortgages from Munsie, the value of the Carolena at that time was $2,000.- R'io1024' Une Patl'ick Hickey, who was half owner of the vessel when she was sold in 1885, stated that he received $1,000 as his share of the purchase price, and that Captain Urquhart, who made the sale, told hhn that he had sold the vessel for $2,000. As corroboration of the last valuation, it appears that the lengthening of the vessel renewed about two-thirds of her hull, and that such repairs cost $900. At the same rate, although repair work was more expensive than the construction of a new vessel, the entire hull of the Carolena could have been replaced new for $1,200. :.-.. m, line Orlando Warner, who built the hull of the Charlotte Cox, estimated that the cost of the outfit would oe one-third of the cost of the hull; and the same R., 87. R„ 119. R., 209, line 38. R. 153. 34. R., 1031, line 62. EVIDENCE—VALUE OF VESSELS. 305 ratio is given by the witness Cavin in the case of the Dolphin. If correct in their opinions, the Carolena was worth certainly not over $1,600 or $1,700 new. The witnesses sworn on behalf of the United States expressed their valuation of the vessel entirely upon the prices ruling in the Victoria and San Francisco markets at that time. Alexander McLean, who spoke from knowledge of the Victoria market, stated that the Carolena when he E-> 414> Une saw her in 1885 was probably worth $1,700. A. B. Alexander, basing his opinion upon an examination of the vessel in 1888, placed the valuation 29. ' at between $1,800 and $2,000, not exceeding $2,000. Charles E. Raynor, whose experience as to the E-> 5°3j i^e value of vessels is confined to the San Francisco market, placed her value there at $1,0,00 to $1,200. Edward 1\ Miner, who saw the Carolena in 1889 atE-|5537> ^ Unalaska, stated that a difference in valuation between her and a new ship of modern construction and build would be fully 50 per cent. Being asked what she was worth in the market, he replied: In the market I think she would be probably useless, r., 538, line unless there was some special business to put her into that 5. she could accomplish. Again: In the market generally a vessel that had been built up so much, of that age, would be, I think, comparatively useless. There could be no market value set on her. THORNTON. The Thornton, seized August 1, 1886, was built at Dungeness, in Washington Territory, United States, in 1861. She was, according to the transcript of regis- App. B, pp. ter, 51.1 feet in length. 19.2 feet in beam, and 5.1 feet 101, i03. in depth of hold. Her registered tonnage was 22.30. n s 39 306 EVIDENCE—-VALUE OF VESSELS. It is apparent from" her dimensions and tonnage that the vessel was broad, flat-bottomed, and of an . antiquated model, and this is confirmed by the fact r., 859, line that, prior to 1877, when she was changed from a 58' sloop to a schooner, she had a centerboard. r., 1069, line Capt. Alexander McLean states that she was an old 93 -■ , :':;" 11 ].»<:. • R., 1056, line Captain Raynor, who saw her in Unalaska, where 68- she was taken after seizure, states that "she was a very old-fashioned model—about the same model of vessels built about 1850 and 1855." r., 1056, line It would appear from the evidence that the vessel was in a dilapidated condition at the time of her seizure, as her mainmast was broken off about 7 feet below the crosstrees, and her fore rigging was carried away. R.,9i6,iine3. That her condition in those years demanded extensive repairs every year on the part of her owners is apparent upon the statement of F. D. Warren, that the annual wear and tear upon the vessel would be fully $1,000. This may in a measure be accounted for by the fact that she was wrecked in the early summer of r., 919, line 1883 on the west coast of Vancouver Island, at a point 49- where she was exposed for several weeks to the full R., 1068, line sweep of the southwestern gales which prevail at that period of the year. R., 937, line According to Warren, her engine was small, R. 844 line an<^ it w011ld appear from the evidence that it was of 41- little value to the vessel as she was towed into Bering 54. Sea through Unimak Pass by the Dolphin, although E381618'Une at tne time sne ha<l a^ sa^s set anc*- was undv>" full R., 1613, line head of steam. R 904 line Captain Warren stated that he purchased the ves- 23- . sel three years after she was built for $1,800. He 40. ' me placed a value on her at the time of seizure of $6,000. E:S*ib.»> Q- In connection with this valuation of Captain War- is., 47. l EVIDENCE VALUE OF VESSELS. 307 ren's, his testimony in Warren v. Boscowitz is of Interest: 931. Q. I want you to state as nearly as you can what the R., 944, line cost of these vessels was. 24- A. The cost of running them? 932. Q. No; the vassels. A. Well, I put the Thornton, I think, at $4,000—that is, the time she had her machinery put into her and was made a steamer of. On redirect examination, Captain Warren endeavored to explain away these statements, but the language is too plain to deprive it of the weight it possesses. The Thornton was mortgaged in 1885 by Warren E'^81086' Une to Boscowitz for the sum of $4,000, and sold at public auction, after being regularly advertised, for $1.00,E'^087'Une subject to this mortgage. It appears also by the charter party from Warren's 20. ' e assignee to Boscowitz, dated February, 1886, that the vessel could not. be sold for the amount due on the mortgage. The annual wear and tear on the Thornton, as given by Captain Warren, must be deducted from any valuation made of the vessel, as she had completed over three-fourths of her voyage. In the Argument on bejialf of Great Britain the Bljv*&•> "> value claimed for the Thornton is $7,000, or $1,000 more than is claimed by her alleged oumer. The evidence relied-upon in the Argument as to the valuation of the vessel is entirely based upon tes- testimony of what it would cost to build a new vessel of a similar type. Four journeymen ship carpenters were produced to establish such a valuation. H. J. Cook gave her value in 1881 at $5,500, butE'£0835* Ulie stated that he was "not talking about the market value." Walter Walker said that he "considered she was '25. ' e worth, machinery and all, about $6,000 in 1886." '308 EVIDENCE—VALUE OF VESSELS. r., 965, line William Slieghtliolm valued her, before her machinery was put iu, at about $5,000, and in 1886, machinery and all, at "perhaps something over $7,000." r., 1028, line Q. w. Cavin, who was employed to float the vessel when she was grounded in 1883, stated that he supposed "she was worth probably $5,000 or $6,000, exclusive of her machinery." Besides the ship carpenters above referred to, a report of Assistant Treasury Agent Lavender is relied upon in the Argument as to the valuation of the vessel. r., 966, lino y\y. Lavender saw her in 1890 on the beach at Unalaska, and he states: " I should think, lohen new, that $7,000 would be a fair price for her, including her engines and all other accouterments, ready for sea." It is evident that this statement may be placed in the same category as the testimony of the ship carpenters referred to, who base their valuation upon the cost of building new vessels in 1886. On the question of market value but one witness appears by the Record to have given evidence—Capt. Alexander McLean—and he testified as follows: ~^"ia line ^ think from her age and appearance at that time, and from the other vessels that were changing hands here, I think she would be worth about $1,800, outside of the machinery. ONWARD. App. b, p. The Onward, seized 2d August, 1886, was built in 104* California, United States, in the year 1871. Accord ing to the transcript of register, her length was 56.5 feet, beam 20 feet, and depth of hold 4.5 feet. She had a registered tonnage of 35.20. She was constructed of the usual material used upon the Pacific Coast, termed indiscriminate! v ()regon pine and Douglass fir. As to the value of this vessel, five ship carpenters EVIDENCE VALUE OF VESSELS. 309 were sworn by Great Britain, all of whom based their estimates upon the cost at Victoria in 1886 of building vessels similar to the Onward. Hubert J. Cook, on being asked, "What is yourE-> 853, line n 28. estimate of the cost of the Onward in 1S86?" answered, "I considered between $4,000 and $5,000, or something like that." Orlando Warner, who stated that he did not know ^u855' line the age of the vessel and never worked upon her, estimated her value in the neighborhood of $4,000 to $5,000 "ready for an ordinary trip." Samuel Sea stated that he should think a vessel E-» 856, line of her kind, as she was then, would be worth $4,500. Alexander Watson, jr., gave his opinion, from hav- r., 858, line ing seen her in the harbor on several occasions, that she was worth from $4,325 to $5,000. Walter Walker stated that he should judge lierR-,860,iinei. value to be about $4,000. Besides these five witnesses sworn as experts, Charles Spring, half owner of the vessel and the claimant in this case before the Commission, was also sworn on behalf of Great Britain as to the value of the vessel. Being asked for his opinion as to her value, he replied: "I put her down at $4,000, considering that she was worth every bit of that to me at that special ^863, line time." On cross-examination he was asked: "Did youR-,879,iinei. intend to testify to the market value of the Onward in 1886?" To which he answered: "No, no; just what she was worth to myself engaged in that business, having nothing to bear on the market whatever." The onlv two witnesses who testified as to theE-> 90°. lille market value of the Onward were Captain Raynor and Capt. Alexander McLean. The former was on board ot the vessel at Unalaska immediately n. ,i • , i , I i • i i ., " R., 900, line alter the seizure and stated that he considered the 32, market value of the Onward in 1886 to be$2,000. 310 EVIDENCE VALUE OF VESSELS. R., 1070, line Capt. Alexander McLean, who was half owner of the vessel, stated that he would consider the Onward to be worth in the port of Victoria in the year 1886 from $2,200 to $2,300. R., 879, line In corroboration of this testimony of Captain McLean's it appears that the Onward was transferred in June, 1884, to Charles Spring & Co. for $2*200. 14 R.,1070, line 61. ANNA BECK. App., B . P- 112. R., 1133, line 67. R., 975, line 35. R., 974, line 59. R., 1134, line 15. R., 1134, line 50. Ii., 1131, line R., 978, 35. R., 978, 50. R., 981, 69. R., 1016, 25. line line line line The Anna Beck was built at San Francisco in 1865. Her length was 63.7 feet, beam, 22.6 feet, depth of hold, 5 feet. She had a registered tonnage of 36.35. She was purchased by J. D. Warren in 1872 for $4,000, and in 1880 she was fitted for steam. Only Oregon pine was used in "her construction. In 1883 she was burned to the water's edge, and was rebuilt at Victoria. Captain Warren testified that the cost of rebuilding was about $5,000,'' everything complete." The machinery which had been in the vessel when she was burned demanded considerable repairs, and the $5,000, it would appear from the evidence covered whatever work was done in making the engine of use. Five witnesses were sworn on behalf of Great Britain as experts upon the value of the vessel. All of them were journeymen ship carpenters. Walter Walker considered her worth $8,000 or $9,000 when she first came out in 1883, after the repairs, and estimated her depreciation in four years to have been between $500 and $1,000. He stated also that his value was based "on the day's work and material, whether costly or not." Orlando Warner, who worked part of the time on the Anna Beck while she was undergoing repairs in 1883, valued her without her machinery at from $5,000 to $6,000. EVIDENCE—VALUE OF VESSELS. 3L1 George W. Cavin said that the vessel would represent at that time between $6,000 and $7,000, exclusive of machinery. On cross-examination he stated that she was probably worth $7,000 or $8,000, exclusive of maclunery. Richard Bennett, who stated that he had not seen much of the Anna Beck since 1883, fixed her value at about $6,500. All of these witnesses, as heretofore shown, base their valuation upon the cost of building a new vessel at Victoria in the years 1883 or 1886. It must be also borne in mind that the cost of repah* work was more expensive than new work in Victoria, and that a vessel similar to the Anna Beck could have probably been built in 1883 by the day's work for a sum less than the cost of her rebuilding, but at the time when the accident occurred Warren, who was then her registered owner, was absent from Victoria, and the repairing was done under the direction of an agent or attorney. The Anna Beck was mortgaged for $4,000 in 1884, by one Hartnell, to Joseph Boscowitz. Subject to this mortgage the vessel was sold in 1885, at public auction, for $1. In the fall of 1886 she was again sold for a nominal price, subject to the same mortgage. In February, 1886, the assignee of J. D. Warren, chartered the Grace, Dolphin, Anna Beck, Thornton, Rustler, and one-half of the W. P. Sayward to Joseph Boscowitz, the mortgagee. In the preamble of the charter the following appears: And whereas the amount due to the said Joseph Boscowitz, upon the said mortgages or bills of sale, is greater than the sum for which the said schooners and interest can be sold R., 1031, line 40. R.. 1033, line 3. R., 1038, line 1. R., 1038, line 10. R., 1031, line 13. R.. 1086, line R., 1087, line 15. R., 1088, lines 10,53. R., 1087, line 12. Bearing also upon the question of the value of this vessel is the fact that after her seizure she was appraised at Sitka, with her outfit and furnishing, at $2,600. R., 1166, line 53. 312 EVIDENCE—VALUE OF VESSELS. R., 1276. 53. R., 1278, 14. R., 1270, 20. R., 1282, 29. In a letter from the United States marshal to the Acting Attorney-General of the United States, dated August 23, 1888, the following appears: line . The owners of the schooners Anna Beck, Grace, and Dolphin claim that the appraisement made at Sitka one year ago was at the time excessive, and that their value on account of the . inclement weather of Alaska has in the meantime constantly been depreciated, and therefore declined to bond them at such appraisement, which if not granted they desire the sale to proceed. The owner says, however, that he will furnish satisfactory bonds for the schooner Anna Beck, at her present appraised value, if it can be effected subject to a final settlement of the matter and without expense of an appeal to the Supreme Court. line A similar statement appears in a letter from the Secretary of State to the British minister at Washing1 ton, dated September 27, 1888. On the 4th of June, 1889, a committee of the honorable the PriA7y Council, approved by His Excellency the Governor-General, in council, referring to a former report adopted in December, 1887. in relation to the seizure of the W. P. Sayward, Grace, Anna Beck, Dolphin, and Ada, reported that— line One vessel was released on the loth May, 1888, under bonds, viz, the schooner W. P. Sayward. The owners of the other vessels (except the Ada, for which no owner could be found) considered that the appraisement was largely in excess of the value of the vessels. To meet the obvious conclusions to be drawn from the statements appearing in these letters and report, a telegram was offered in evidence on behalf of Great Britain, addressed to the Hon. C. H. Tupper, from Lieutenant-Governor Nelson, dated at Victoria, July 20, 1888. The following is an extract from the telegram: line The district court of Alaska has refused bonding to the owners, giving as reason application too late. Under present circumstances owners wilUng and anxious to bond vessels for appraised values—Anna Beck, $2,600; Dolphin, $7,750; Vj EVIDENCE—VALUE OF VES8ELS. 313 Qrace, $10,404; Ada, $2,900. Pending settlement of question have sale postponed. The date of this telegram is two months prior to the letter of the United States marshal and three months prior to the letter, of the Secretary of State, while the report of the committee of the privy council, already referred to, was approved over ten months after this telegram to the minister of marine and fisheries of Canada. It is claimed, therefore, that it does not in any way affect the weight of the evidence produced as to the excessiveness of the appraisement, and it would appear that if the owners in July were willing to bond the vessels at the appraised value, they reconsidered the matter before the date of the letter of the United States marshal. The principal witness produced on the part of Great Britain as to the value of the engines and boilers of this vessel and of the others registered in the name of T. H. Cooper was F. A. Thomson, the official inspector of hulls at the port of Victoria His R-. 986, iiine testimony is based upon surveys, not made by the witness, appearing in the records of his office for the year 1885. He stated that the engine of the Ai Beck was substantially a duplicate of the Thorntons, I. which has already been discussed. His values are evidently uncertain, as at one places., 997, line in the Record he values the machinery of the Grace ""
about $22,000 or $23,000 with her machinery in,
J. D. Warren, expenses to Ottawa, putting in claim, S152,
something between ten and fifteen dollars.
Estimated value of provisions, ammunition,
similar letters were written to other collectors of customs
Expenses incurred in bonding Sayward, etc., say, $1,000,
expenses and hardships of crew, $13,000,
balance of catch for the remainder of the season
etc., from the schooner Dolphin, for ih,
A. Frank was the owner of Black Diamond,
probably do some sealing at the same time,
1' ?A 'claimants as to the location of the
illegal boarding, search, and arrest of the vessel, 82,000.
Loss as shown by Exhibit 8, page 108, $913.60.
A poor man could not afford to employ them.
@en, "Other Copies: http://www.worldcat.org/oclc/25968700"@en ; edm:hasType "Legislative proceedings"@en ; dcterms:identifier "JX238 .F83 1890"@en, "JX238-F83-1890-V02"@en ; edm:isShownAt "10.14288/1.0222430"@en ; dcterms:language "English"@en ; edm:provider "Vancouver : University of British Columbia Library"@en ; dcterms:publisher "Washington : Government Printing Office"@en ; dcterms:rights "Images provided for research and reference use only. For permission to publish, copy, or otherwise distribute these images please contact digital.initiatives@ubc.ca."@en ; dcterms:source "Original Format: University of British Columbia. Library. Rare Books and Special Collections. JX238 .F83 1890"@en ; dcterms:subject "Bering Sea controversy"@en, "Sealing--Law and legislation"@en ; dcterms:title "Bering Sea Claims Commission. Argument for the United States in reply"@en ; dcterms:type "Text"@en ; dcterms:description ""@en .