..*^.. IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 1^12^ 12.5 ■^ ilii 12.2 VA 1111.25 r-^ iiii'-^ — 6" W^W '/ & Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716)172-4503 A : (maaning "CON- TINUED"), or tha symbol y (maaning "END"), whichavar applias. Las axamplairas originaux dont la couvortura an papiar ast imprimAa sont filmAs an commandant par la pramiar plat at an tarminant soit par la darniira paga qui comporte una amprainta d'imprassion ou d'illustration, soit par la sacond plat, salon la cas. Tous las autras v^yxampiairas originaux sont filmte an commanvant par la pramlAra paga qui comporta una amprainta d'imprassion ou d'illustration at an tarminant par la darnlAra paga qui comporta una talla amprainta. Un das symbolas suivants apparaltra sur la darnlAra imaga da chaqua microficha. salon la cas: la symbols — ^ signifia "A SUIVRE". la symbols y signifia "FIN". Maps, platas, charts, otc, may ba filmad at diffarant reduction ratios. Thosa too larga to ba antiraly included in ona exposure ara filmed beginning in the upper left hand corner, left to right and top to bottom, as many frames as required. The following ^fiagrams iiluatrata the method: Les cartas, planches, tableaux, etc., peuvent Atre filmis A des taux da reduction diff Grants. Lorsqua le document est trop grand pour Atre raproduit en un seul clichA, il est film* A partir da Tangle supArieur gauche, de gauche A droite, et de haut en bas. en prenant la nombre d'imagas nAcessaire. Las diagrammes suivants illustrant la mAthode. 1 2 3 1 2 3 4 5 6 Fl IN THE MA' THE ARC FUR-SEAL ARBITRATION. IN THE MATTER OF THE CLAIMS OF GREAT BRITAIN AGAINST THE UNITED STATES OF AMERICA BEFORE THE BERING SEA CLAIMS COMMISSION. ARGUMENT FOR THE UNITED STATES IN REPLY. WASHINGTON: GOVERNMENT PRINTING OPPICB. 1897. ' i '. :<1 f\j'^ /.JP .Kiii^-i;! '"PT.^r.jiv , V-' 1 /'TM iVi. > < r\ •' rf « »■ !i.\" n A ft- •J ^:^rrA i« ,i X A- Q- 'b S> ^ ?> ft' ♦^X' VfU INTIIODUCTOR'S Ah to reflec Itepresenta aiTi, and Alleged "I ComparatiT SUMMARY OF ] The INTERNA'! The questi settled b and of c« As applied ISCOPE AND IN Jurih "^tio Constructi< Prior diplo No ambigt Conimiss Precedents No other cl Analysis o Claims of i IPeksons in w vene un dei British sul of latter Perm '' liri Evidence < Owes obed And allegi COIirTEN"TS. Page. Introductory statement 1-12 As to reflections upon the Tin ited States 1 Representative statements in the Argument of Great Brit- ain, and comments thereon 5 Alleged " Insults to flag," and comments 8 Comparative unimportance of the claims 11 SUMMARY OF I'OSITIONS IN UEPLV 12-19 IIE INTERNATIONAL LAW APPLlCAnLB HERE 19-59 The ntion against the United States for 4G j Limit of (heat Britain's right to intervene for protection. . 49 j The Treaty of 1815 uration of " .Method fo cussed . . The value oi Evidence re The Caroh The Thorn The Omen The Anna The Grace The Ada . CONTENTS. Ill Ompknsation or "Measure of Damages"— Continued. I'luiitori/ or tihulictive dmniujeH Alabama Cliunis arison v ith preeedents I'tisoiiiil claims /'or (Imnagt'sfor/nlsr imprisoiiment,, etc Vliihiis for h'ljul xer riven rite iiH'dsurc of nihir of seal skins lutcresl as danimies interest in lieu of future earninffs and the future earnings also— legal absurdity The law as to interest — authorities If IIH ('OSTS IN SAVWAKU (JASE The Additional Claims The "Oscar AxND Hattie" Case !.'», lonservatlons apim.ying only to laav on certain claims The " Patlifiiiiler^'' in Xeah liaif rite " lllaeic IHamoiul,'' Xo. 5 Jainea Oaiidiii^s '■'^ personaV claim The Carolena, Onward, and Thornton as to abandonment bif elaima nts Uncertain character of seal hunting No DEFINED "SEALING GROUNDS" IN BERING SEA Duration of the sealing season in Bering Sea "Method for computing the estimated catch" dis- cussed The value of seal skins lOviDENCE relating TO VALUE OF VESSELS The Carolena The Thornton The Onward The Atina Beck The Grace and the Dolphin The Ada 126 126 129 lai i;5;{ i;w i;57 i;w in 141 14;5 114 148 153 J, 477 156 15(; l.-»S 15S 158 177 209 228 247 258 265 303 305 308 310 314 315 IV CONTENTS. Tkusonal claims of captains and mates .'U9 1 The Cakolena .'W7 The Thornton 3r>7 The Onwakd 364 The Favourite 3G9 The Black Diamond (188«>) aTS The W. V. Sayward 382 The Anna Heck 388 The Alfred Adams 392 The Grace and the Dolphin 39') ■The Ada 402 The Triumph (1887) 408 The Juanita 414 The Pathfinder (1889) 418 The Hlack Diamond (1889) and the Lily 423 The Minnie 437 The Triumph (1889) 442 1 The Ariel 447 The Kate 457 1 The J»athfinder (1890) 462 The Henrietta 460 1 The Oscar and Hattie 477 The Winifred 484 The Wanderer 490 i AKGUMKNT FOII TIIK UNITED STATES IN KEPI.Y. INTRODUCTORY STATEMENT. Ill siibinittin<>' tlii'ir views to tlic Ili tlio Jirfi'iinu'iit presented in bi'linlf of (Jreat Hritiiin, the lUKlersijiiied will, tor the i)urj)oses of iniderly and convenient eoinjiiirison, pnrsne as nearly liismay he the nomenclature annity and equal s(lf-resj)ect, it should iind that sj)irit abidin*^' and niani- Itost not only at the altar but in all the ministers of Itlic temple. They assert before the Tril)unal at tlie outset, that no juridical })ur[)ose can be served, either by way of interpretation of its orj»'anic law and rule of action — lie Convention of 181)6 — or of its enlig-htment on the ||iit'stions of liability or conq)ensation presented at its 1>iir, by imputations upon tlie gf international dis- j)iites, throufih conrts of conciliation, wliich is saitl l»y o'ood nu'n o,f all nations to lu' the universal desire of ad\anced humanity and the highest civili/ation. There has i)een, douhtless, some pntj^ress toward the accctmplishment ot that wish, so vij^orously pro- fessed hy some, and so sincei'cly felt l»y others. However that ntay he, the annals of forensic and even of judicial discussion in courts oi' international arbitration within the past three and a half decades have certainly not furnished impulse to the move- ment. To all who have faith in, and who ir.voke its successful issue, such annals seem to teach the lesson that in our tit moni often liave ret'ourse to the ji'entler lexicons of war. Tlu^ tradition of Fontenoy furnishes a hetter jiuide for the exchanji'e of views between nations met to- ji'ether in courts of conciliation and judjiinent than some of their recctrded )»recedents.* We shall submit later on, wlien we take up tlio sub- ject of the interpretation of the treaty and convention, that the correspondence between the Governments, frajiinents of which are referred to and connnented on in the British arjiunient under the ca[)tion "Introduc- tor\ ," is entirely irrelevant here. It was all conducted, and relates to a ])eriod prior to the treaty of Washinjiton of February 29, 1892, under which the Paris Tribunal afterwards sat and made its award, and, of course, many years ])rior to the treaty or convention under which this Conunis-| sion sits. • See Geneva Arb. , vol. 3, p. 203 ; Id., vol. 3, p. 48x ; vol. 4, p. 12, sec. 7. Papers, Treiity of Wa.sliinf^ton. Icadino- om-s many and c( the wlu)le Ix (•hallen<>-ed I In the Br statement is (1) This cor Dciiurred on t rixpcvtuKj the »/ State' on ti iiiiide for part "if September, piirticulius n ' Hired Statei- Mot before the inuiiieate the INTKODUCTOKY STATKMKNT, Wliiitcvcr ot" (•(•Mtr«>V(*rsy or <»t" (litVerciiccs iiiny li;i\(' liccn «lis('Uss(Ml ill tlu* diplomatic coi-i'i'spoiKlciici* hctwi't'ii the iiiitioiis, they were disposed of by tlio trnitN', tiic iiwjird, and tlu* coiivciition. Kor ilii^^ and iitlicr reasons, uliicii will he referred to in iiii.llier jihice, tin* United States ohjected to its intn. lueti(Hi ;it the hearin^i" on the I'acilic (Joast, and dr • ined there til encnn\'ter the record hy putting' in answerin;.', e\ i- (lenc** to i-onipleti' the diploinati*' history here •vjiicli ;is so tully set ont in tlie lonji' record of the ))roceed- iiiLis of the I'aris Trihnnal. The conclusions drawn from the correspon(h'nce, MS stated for the? information of the com?iiissionei's in tilt' liiMtish ar'ument as representative of many and connnent upon them briefly, in onU'r that the whole body of them may jifo into the proceeding's, (•liallen<''ed bv the Tnited States. In the British argument, at page 6, folio AO, this statement is made: (1) This correspondence shows that although the seizures o((!uiTe(l on the 1st and 2d August, 188(5, and information rispertiiiy the same teas received hi/ the United /States Secretary of state OH the isth of the same month, and a refjuest was iiiade for particuhirs by the British Governinent on the 27th lit September, no intimation as to tlie cause of seizure or any |iiirti('uhiis rehiting thereto couhl be obtained from the I lilted States Government until the 12th of April, 1887, and not before the 11th of .luly, 1887, did that (roverumeut com- iiiunicate the precise nature of the proceedings. INTRODUCTORY STATEMENT. It is to be observed, in connection witli tlie state- ment italicized, that tlie ini})lication is tliat Mr. Bayard, the American Secretarv of State, while havin<>' the information from An<>ust 18, l.S8(>, wrote to the Hritish ambassador on November 12, 188(!, that he had not received it, and that he withheld the information, already weeks and months in his possessicm, afrer he had received the notes of in(|niry from the l^ritish ambassador of September 27, 1886, and October 21, 1886, askin<>- for it. It is submitted that the statement ([uoted from the arofument of Great Britain has nothinj*- whatever to rest upon in any })lace in the record or out of it. Moreover, it aj)i)ears 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 irreg-ular, but that the time was from ten days to two weeks at this period; to that nuist be added the time across the con- tinent bv rail from the Pacific. Secretary Bayard states that he delivered the infor- mation desired as soon as he could {^ive 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 nmch expedi- tion in like circumstances. In the Fortune Bay cases, referred to in the Bntish brief, Mr. Evarts snbn\itted to Great Britain the claims of the United States, for attacks upon and damages to twenty-two vessels under the iVmerican flag-, on August 1, 1879. He received a rej)ly fron\ Great Britain on April 3, 1880. (Foreign Relations, Great Britain, 1880, vol. 72, p. 1277 at seq.) In the case of the ship Jones (an ocean ship with her cargo, worth more than all the ju'operty of British subjects inv( British umj) ('(unmission ;i shi}) sailin |)rol)able cai then Secret) itddressed a lucnt, setting iitc attentioi; was no repb no excuse \\ ls4iitisli umpire afterwards found, inider the ^[ixed Comniission of liSoS, that a British cruiser had seized ii sliip sailinj^ under the American Hag-, witliout any |)i(>l)iil)le cause and without a sha(h^w of excuse, our then Secretary of State, Edward Everett, in 1843, ii(l(h'essed a letter of complaint to the British Govern- ment, setting forth the facts and inviting the immedi- ate attention of that Government to the case. There was no reply received for three and a half years, and no excuse was oftered for the delay. (Id., vol. 35, lS4()-47, p. 655 vt seq.) Nations do not take positions upon facts which may aii'ect their rights and obligations without delib- eration and proper investigation. The presumption here should be that Secretary Bayard acted in accord- ance 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 ■lusticfa :)f England, in his argument before the Paris Tril)unal.) The airdiassador of (ireat Britain was resident at Wasliington, and outside of all formal communications oi' )K)t('8 verbal es, WHS in informal connnunication with Mr. Bay;u"d. Of such interviews there is, of course, no evidence; Init there is no intimation anywhere cm the part of the ambassador, or of the British Government, that Mr. Bayord had withheld information, or had not furnished it with such expedition as was in accord- ance with usage and the circumstances. On page 20, folit) 20, we find this statement: (U) For many years the United States have disputed tlieir 1) tbility, shifting their ground from time to time from one untenable position to another equally unsound, during the wliole of which period they have failed to niiike any repara- tion whatever to the parties who were the direct sufferers from their acts and pretensions. INTRODUCTORY STATEMENT. And at i)5i<»e 10, folios 10-20, we lind this state- ment as a ])reniise to the above: This correspoiuleiice (diplomatic) discloses the following: positions assumed at various times by the authorities of tiie United States ( U. S., vol. 2, i)p. 26o, \iSii, 3!)(5) : {a) The vessels seized in ISSG and 1887 were seized and condemnedon the ground that Berinj;" Sea was aware clanxum. (b) Disavowinfi' this {iround, the claim was made on Sep- tember 17, 1890, that tlie United States had exclusive Juris- diction over 100 miles from the coast line of the United States territory in Bering Sea. (c) Subsequently on the 14th April, 1801, the United States (Jovernnient advanced a new claim that they had i)roperty in, and a right of protection over, fur seals. The citations given do not, ot" course, sustain this iniputation. An intimation to tlie same efl'ect, though in tar less objectionable form, was made before tlie Paris Tri- bunal; and we content ourselves by referring to the treatment of that intimation b}- the eminent counsel who there rejn'esented the Tnited States, at ])age 29 cf sYv/. of volume [) of the American ])rint of the jn'o- cc^edings of that Tribunal. ( )n the latter part of the iirst paragraph of (2) above quoted we make this comment: Notwithstanding the statement impliedly to the contrary there made, and exj)ressly made at i)ag^e 14, folio It) ("Particulars of claims had been fornndated and presented to the Tnited States (Government"), and at ])age lo, folio 30 ("The claims actually submitted by (ireat Britain referred to in the notes verbales"j. Great Britain, in distinct de])artur<' from her own precedents and from the rules of international law in such cases, wlu're one nation seeks indemnity from another for injury to persons or ])ro])erty, never caused the claims to be audited or formulated in any maimer for ])resentation to the United States, and never pre- sented them. On tlie contrary on April 1 S, 1888, as appears by the record. Her cated to Mr, Her Majest lars of the el scalers seized tics in Bering .1 JKst asse iritlioiit invi'8 wish to ascei would be disj The dahi the Paris 'J the meantin (Jovernmen StMtcs, (daii; (luestion, a: them, was : attitude of to the Hag' ( On the c( respect of i (tl)taiued wl .igainst it 1 presenting" wrong was conceded tl remain in a national ai diction of 1 Herin<>' Sea. The greti • liction; an creating- tli( liility of th ihe seizure which both terrupt or nation of t INTRODUCTORY STATEMENT. icconl, Her Majesty's ambassador formally comnmni- cated to Mr. Bayard the following' (Rec, p. 65)): Her Mjkjesty's Government bave just received the particu- lars of the claims for compensation on acconnt of British scalers seized and warned off by the United States authori- ties in Bering Sea. .1 Juxt assessiiient of these claims appears to them difficult iriihont investigation and rerijication ; and they therefore wish to ascertain wliether tlie United States Government would be disposed to agree to a mixed commission, etc. The claims were not presented in any form until tlic Paris Tribunal came together in 1n." Up to this time neither Great Britain nor anyone has been able to ascertain what these claims are, or whether thev arise from injuries sustained bv such "pers( ns." Unlicpiidated and unascertained as they have 1 I 'en, the present convention itself recognizes that no liability accrued until the decision of the Paris Tribunal, tor such "laims are distinctly defined in Article I, as those "arising- by virtue of the treat} aforesaid, the award, and the findings of the s;« " Tribunal of Arbitration" (at Paris). At pag-e 20 of the British argument, folio 5, is the following: (3) Tliey (the acts of the United States in seizing vessels in Bering Sea) constituted an insult to the Jiag of Great Britain, repented from time to time, accompanied by the seizure and confiscation of vahxable property, in the fa^e of continued protests, and even after the acts and declarations of the rnited States Government had given an implitd assurance to the con- trary. In other places in the oi)])osing- argument compen- sation is claimed from the United States under the convention and before this Gommission for Great Britain "in her own behalf," distinguishing- this as a national claim in a different sense from those made bv her in behalf of "})ersons" within her j)rotection. (t'ol. 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. (rrected ic misunderstanding, if there was one, and made Ills statement in that letter, which is fully justified )y an examination of tliM correspondence (Rec, 81): I (;aii discover no gro'ind whatever for the assumption by Majesty's Government that it (his letter of February 3, |S87) contained assurances (quoting from the letter of the Iritisli ambassador) "that pending the conclusion of dis- Inssions between the two Governments on general questions Jivolved, no further seizures would be made by order of the piiited States Government." On page 1, folio 5, appe.ars this statement: (i) Until the year 188G the Unii .d States Government by ko positive act sought to exercise auy exclusive jurisdiction fyor the waters of Bering Sea beyond the usual territorial iiiiit; nor did they by any active interference intimate to ireat Britain or to other foreign powers their intention to klaiiu special or exclusive authority to prevent the capture M' fur seals in Bering Sea outside of such limit. I i ! I 10 INTRODUCTORY STATEMENT. The ret'erence to the re(;ord opposite this paragrajil does not sustain it. The reference is to tlie statenieii of the Jiritish ease before the Paris Tribunal, and entitled, "Outline of Arg-ument." It appears by this record, on the evidence jjut ii by Her ^fajesty's Government, that the first ship t| enji'ag-e in pehig'ic sealing was an American vessel that went into the sea in 1S84. It was not claimel before the Paris Tribunal that any l^ritish shi}) wiij in the sea before that year. L It is not pretended by (ireat l^ritain that there waJ any assertion by that nation or her subjects of tlif right to take seals in leering 8ea, as contested hi the United States, before 188"); and it a])pears thai the assertion of the right by Cxreat Britain, or l)y hej subjects, was not Immght to the attention of the Unite! States Government or its officers until after the clos| of the season of 1885. I Sir (yharles Russell, in his argument at Paris, quotej the statement of Secretary lilaine as follows, froiJ his dispatch on the subject of British sealing, dateu Jaiuiarv 22, 181)0, where Ik' says: Whence did tlie ships of Canada derive the right to do in 188(5 that which they had refrained from doing for more thaij ninety years? | In all fairness to both nations, after all issues of facj have been inxcstiiiated and resolv(Ml bv the Paris Tribunal, it should be stated that fnnn the date ol ac(piirement of Alaska in 18()7 until, by reason of wliaj took place, in the year 1885 the question of ])elagic sealing or the jurisdiction of the United States in tlie ])remises was not asserted against Great Britain, for the simp''> reason that the latter Government oy its subj jects had not challenged tliat jurisdiction or interfered with the exclusive control by the United States of seal fishing, as claimed in Bering Sea, at Paris. The jurisj diction was asserted as soon as substantialh' infrinyedl |( )\ving to til lllcd in thetre Ic United Stt Itiial (piestion Ir losses to 1 liportance vie> litvcrsy, a fev Ibject of prol jition's, resultir kiiiposed of j laming, to nii j)on (luestion; fcse as subjec With the g] s|Mtsed of at jhonisoeve'' tl liat the few cl Itnsidered her ruous dignity lias schemed 1 lie sea by the true, but th Sritain. The> lie Tnited St If the suliject! Confusing 1 Issiimed that a itates in Ber: If its own shi British subje( jignity to th iivsented her 1 1 hi w fully b< iiierican citi [iicat Britain Ictiial British INTRODUCTORY STATEMENT. ( )\\ inji' to the f^ravity and iiia<>nitii(le of wliat is lied ill tlie treaty the "Main Controversy" l)etween (■ ITiiitod States and Great Britain, tlie interna- )iijil ([iiestioii of jurisdiction, tlie cdainis involved r losses to jiritisji subjects have been (••i\'en an i])oi'taiice out of all ])roj)()rtion to their siji'iiificance. iltt'd into view by the sii|»reine feature f)f the con- >\crsy, a few small tisliin<>' boats have been the hjcct of jirolonj^ed neji'otiation between two <»'reat itioiis, resulting- in the organization of a High (Viurt, [(iiijtoscd of jurists of distinguished position and juiiing, to make an assessment of values and jias.s Mtii (juestions, invidving, in the case itself, only CSC as subjects. With the great (|uestion taken from under them, spdsed of at Paris, and out of view, it will seem to lioiiisocve'" this record comes, and who masters it, lilt the few claims and their sid)jects, which can be Diisidcred here at all, have l)een given a most incon- iiKiiis dignity; and, too, from the outside stand[)oint, li;is seemed that great fleets have been driven from (' sea by the United States troin year to year. This true, but they have not been the fleets of Great Britain. They have been tne vessels of citizens of lie riiited States, in the proportion of loss to that If tlie subjects of (ireat Uritain as a thousand to one. ('t)nfusing this distinction, the public mind has >siimed that all the results of the action of the United |tiit('s in Hering Sea (action sul)stantially in respect its cnvii shipping and its own citizens) fell u})on British subjects. 'J^his also has g'iven a factitious ligiiity 1o these claims. When I'rom the claims resented here there are thrown out those urged 111 lawfully because of their actual ownershij) by iiiierican citizens, who can not be represented b}^ [ireat Britain under this convention, the residuum of Ictual British losses will be found small imleed. 11 ; ( 12 SUMMARY OF LEADING POSITIONS IN REPLY. It is obvious, liowever, tliat tl.ve sinallness of tlil amount involved in nowise detracts from tlie im|Kil tance of the international ([Uestions. A sense of their professional duty to the ConuniJ sioners, who have consented to add to the exactiiil resj)onsil)ilities oi' the liig-h jdaces they hold in tlil judiciarv of their respective countries, that of masteij in<'' and dis})osin<4' of the international controversj embraced in this enormous record and its adjuncts has impelled the counsel for the United States tl endeavor to aid them with all that conscientiou research and analysis on the law and the facts ca| afford. If, in the result of this purpose, it should seeJ that any excuse is needed for the space taken in «^atlJ ering- and })resentini>" the evidence under the seveni heads, with intelligible and orderly references, thai excuse mav be at once found bv comijarino- with tin record, in any one instance, the statements under nm ca})tioii whatever, in the British argument, treating (i the facts. SUMMART OF THE POSITIONS OF THE UNITED STATEfj IN REPLY. At this place we submit brief synopses or head] notes of the leading positions taken in the argumeufl of the United States, hereafter presented at length, ill reply to the juridical positions of Great Britain on like subjects. International law furnishes the standard for tlia interpretation of treaties and conventions and is tlia law of this Commission. SUMMARY OF LEADING POSITIONS IN REPLY. riic sc'()i)e of the coiiveiitiou in this case is (Unfilled Id limited by tlie laii<»uah Connnission, namely, that H'ir liability having" been fixed, the Government de- ircs to pay compensation to Great liritain on account iill persons "in whose behalf Great Britain is en- |tl('(l to claim compensation from the United States," )ul to })ay that compensation at the earliest time when lie pro])er amount can be ascertained. Moreover, the United States want no compromise 11 tlie amount of compensation on values, and the mount of the injury inflicted by them for which they be responsible under the Paris award. They depre- titc any such method of arriving at an award, espe- Killy under this convention, Avhere the claim of each |\\ ner is to be found separately. 14 SUMMARY OF LEADING POSITIONS IN RKl'LY. SUMM It ciin not l)Ut (tc'i'ur to luiyoiu', liowt'ver, wlii'U tlii ainoiints aiv compari'd t'oi' the same claims made iia tor tlio Paris Tribunal with those presented at the hearj in*"' in \'i('toria, and a/^ain when both are comparef with the claims now })resente(l in the argument, tliii the claimants do not share these views as to eompnj inise. The change of trout at Victoria on the measure recovery, the evidence of the padding, duj)licutiiij and doubling of claims, the experience of other coiiii jnissions and tribunals with like claimants, which aii hereafter referred to, tend to demonstrate that tlij amounts are presented at such ])re})oster()us tigurcj in order — if they are taken as a basis of calcuhitidil at all — I hat their reduction of half or more would still give a result out of all [)roi)(^>rtion to the truth. III. A foreigner ])ermanently (h)miciled in the Unite(| States like the claimant Cooper, although unnatuni!' ized, owes during the duration of his domicile allegi ance U) their Government, obedience to their municij pal laws, and especially to their nati(tnal assertion <( what is variously termed dominion, sovereignty, o| jurisdiction. Non constat such a person may owe original allegi] ance to Great liritain, aiul non constat lie puts hil ships under a liritish flag and a British registry', he ij still a resident of the United States, and so amenabW to their laws and absoluteh' bound by their assertioii of sovereignty. Whatever (piestions there may be as to violatiod of national dignity, of the flag, and the ship (wholhi questions of dignity l)etween nations), in such casa he is not a ])erson who can enter any municijial courtJ much less an international commission on claims, and r up that he Biitiiiu is entit lilted States" loiiiinou with o III more amena lets against tl luvs of their i la\(' surtered. Aside from ( tiliility of th(^ ligh seas, sovei |('iTit<»ry on laii llmt this asserti |»t'ii!iti(>nal digi ]s distinctly d". i\' llie private Linic nation, ii: j-oiirt before h lit' the flag ;u litlicr nations I'durts of a(bni I'durt ever he) [liitc ownershi) ( )ii the coni lurcign ships, niition, passini; hmclusively h A citizen of iir domiciled, i liritain, is still ll'nited States (//) Their a liver territory (h) AUmmi .SUMMARY OF LKADINO POSITIONS IN UEPLV. 15 ■r lip that lit' is n person "in wliosc IxOialt' (ircat [Jritain is entitled to cljuni coinpeiisiitioii from the lifed States" for injuries whicii he has s'itt'ei-enity, in resjtect of the sovereiunty itself, . distinctly (l'.stinlits (►f (h»micile in tlie hi^ tory of international law, as will 1 seen, shows — (1) Fre(inent assertions of pre ction in time of ])eace a<>ainst all other nations c.Drpf tlic nnfioii nf orifi'nini (iHt'f/idHcc ; and in the apjilicalile ])rincipk»s laid (hnvn by the anthorities this exception will ill ways be fonnd in terms. (2) III war a ])erson domiciled in a nentral country will be protected in his pro})erty and his person, even] as against his own belligerant country, always pro- vided he has not violated the law of his orig-inal alle- giance and has not engaged in any hostile act against his country. In other Avords, t<^ be protected by the Government of the neutral in such c nditions, it nnist appear that he has maintained the status of the Gov- ernment of his domicile as to neutrfi 'h^-. By these well-settled doctrines of in! rnational law, by the treaty of Washington, the V.u.- -nvard, and this convention, citizens of the United ISt:ites, wherever domiciled or commorant, are not peisons "in whose behalf Great Britain is entitled to claim compensation from the United States." r. The law of ** compensation" in cases of this kind is] restitutio in iritegruni. By the P^nglish and American law, and above all, I by what must be taken in this tribunal as its authority in international law, in cases of precise analog-y to] ins. prospecti\ lowed to Gn 111 any case Vridfcd the vesi [iiHs relating- 1 |)t' seizure whe It the release \n ^n intention oi [lu' property t |ii;i' season. The theory MU'li ca "s thai liiive sup})lied |iiiu' of seizui l)roj)erty se'ze liuasure of coi lu the case [lovernment, j fiiiise of them llie nature of i fcaling .season 111"' here are ii I'lkc those apj] ;-iilly, howeve facts sustain a ^V}lnung•s. Claims for |iiiti<»nal claim [iz, such as m liiviolabilitv o llic respect di 111(1 the like, i ivcreig'n's tei uder interna lent no natio B s 2 HUMMARY OF LEADlNU POSITIONS IN REPLY. 17 ii>. |nos|)i'ctive i)rofits uiul loss of catch cmi not be Iluwi'd to Givat Ih'itain bv tliis Coniiuission: III any case {(i) wliere tlic United States appro- ijriiifcd the vessel by seizure, or by ultimate proceed- ii;is relating- back to the seizure; or (/>) in any case if s(;izure where the United States ordered a release, t tilt' release xsas not accepted, or if the facts disclosed 11 iiitenti]!(»• claimnnts, iiorliasj any nation ever referred such (questions to arbitratioiij or coinmissioners for a dania^ivs assessment. j\[ore- over, claims for "smart money" or for satisfactioii| of national affronts, if any occurred, are not claims of "pers(>ns" within Article I of this conventiinentj in the courts of either country which would authorize! a findin|>' that the I nited States on the facts in this record have been g'uilty of " wanton injury," bad! motive, or malice, and the authorities cited in the| liritish arfi'ument under these heads are not in point. VIII. The claims that are ])resented, which can l)e lieardj within the terms of the convention, tor the m<»erated that they are ])re- postero'i.s and extortionate, and wherever such claimsj have 1)een made willfully or corruptly extrava_ritaiii iiu'iirred by that Govonunciit in the iljiistinent of" an international difficnlty; (//) they are l'\|)r('ssly excluded from the Convention in terms by |ts ivt'erenee to the claims ret'erretl as lh«>se only iiihraced and named in the award of the Paris Tri- Minal. wliich award excludes this claim, as do the Pro- icciliuus of the Paris Tribunal; (c) the interpolation of Hie Icrin "costs in the Sayward Case" in the schedule irtiiclii'd to the convention can not control, modify, 111' cidarji'e the express provisions of the convention, kliich exclude it; and (d) it is not a claim embraced kvitliiu Article I, namely, "all claims on account of liijiuMcs sustained iiy persons in whose behalf Great Britain is entitled to claim compensation," or one of ic "additional c'aims specified in the fifth para<2,ra])h ft' die i»reainble hereto." INTBRNATIOITAL LAW APPLICABLE. SCOPE AND INTEKPnETATlON OK THE CONVENTION. ill this controversy all (piestions must be con.sid- Ti'd, wei}4'lied, and i'nients of international courts, which lie universally held to be of the most biiidinj^- force, iikI jud'meiits and ojiinions of eminent jurists and •ulilicists admitted to be authoiJtative by Great THE INTERNATIONAL LAW APPLICABLE. For other sources of light, from the cojjious learn- ing- of the world, reference is made, without any futurel recurrence to them, to the collection of authorities! found in the exhaustive argument of Mr. Carter beforel the Paris Tribunal, American print, vol. 9, pp. 1-lOJ et seq. Whatever international law maj' be in its broadestl definition, we have it for application here in positivel form. Whatever it may be in its ajiplication to thel controversy between these two nations, it is not,[ as Burke said of politics, "The science of circum-| stances." The United States do not expect here a different! application of the rules of international law from those I which have been applied to their disadvantage in tlieiij past history, nor will they seek a reversal of those! rules which they have heretofore succe.ssfullv invoked! to their advantage, although their a})i)lication 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 tlie contents of| treaties, which, for this as well as for other reasons, consti- tute a most important part of international law. (2) The consent of nations is also evidenced by the deci- sions of the prize courts and the tribunals of international! law sitting iu each country. (See I Phillimore, XLIX, p. 46, and id., p. 55, LVII, with very full consideration of authori- ties 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 be- ing introduced by treaty, and the latter by usage;! the former by express consent, and the latter by THE INTERNATIONAL LAW APPLICABLE. 21 Elicit consent between nations. (Sir Slierston Baker's lliilleck on International Law, Vol. I, Sd' ed., p. 52.) See Id., Vol. I, p. 59, citing- decision of mixed com- liiiission: (ireater weight is justly attributable to the Juilgraents of kiiixc'd tribunals, appointed by the joint consent of tlie several yitKtrs between which they are to decide, than to those of Mliiiiialty courts established by, and dependent in some ^noasure on, the instructions of a single State. The municipal laws of particular States can he \rfrrrc the fact that a system of law exists which ought to regulate and control the international relations of every Vital e. (See "Santa Cruz," 1 C Rob. Adni., Gl; Poison, Law lit' Nations, sec. 3; I Ilalleck, p. 60.) There can be no better summing- up from all the tmrhovities on this subject than the following: III the i>resent imperfect state of international law, which li'((i;;iiizos the obligatory force of no written code, and [ulviiowledges no permanent Judicial expositor of its princi- Vlis. \v(> mnst necessarily resort to the precedents collected p'lniii history, the oi)inions of jurisconsults, and the decisions >/ tribunals, in order to ascertain what these i)rinciples are, |iii(l to determine what are the proper rules for their applica- Hoii. Some of these principles and rules have been settled i'or iijios, and have the force of positive laws which no one kill now venture to dis])nte or call into question. (Sir Sher- ►tdii i'.aker's Halleck, Vol. I, p. 59.) I 111 1 i u I |n 22 INTERrRETATION AND SCOPE OF THE CONVENTION. Decisions of niuiii{'i])}il i-ourts are ivceived with tht| same limitations as above ""iven as to municij)al laws; i. e., thev are taken aj^ainst the nation of deeisioiil (1 llalh'ck, ]). (Jl.) Of text wi'iters the same rule. The works (►f textj writers, when there is a g-eneral concurrence of views! (1 Kent Com., Vol. 1, \). Ill), but ])articularly if thei text writers and authoritv l)e of the countrv assertiii"! the contrary doctrine, tlie authority should be re-| ceived. (Sir Sherston Jiaker's Ilalleck on I)>t. Law, Vol. I, pp. 60-61.) In the lanyiiaoe of Fhillimore: If the autliovity of ZoiK'b, of Lee, of Mansfield, and, abovel all, of Stowell, be against the demand of Enj;laud; if Valiiil Doniat. I'otiiier, and \'attel beoi>i)osed to the pretensions otj France; if (Jrotius and Bynker.sboek confnte the claim of] Holland, I'nti'endorf that of iSwcden: if Heineccius, Leibnitz, and Wolff array themselves against Germany; if StoryJ Wheaton, and Kent (iondemn the act of America, it can uotl be supposed (excej)t, indeed, in the particular epoch of al revolution, when all regard to law is traniided under footl that the orfiumottum U(flit to jtrevail, audi should the country, relyin;; upon scch authority be couiT pelled to resort to arms that the guilt of the war would reistl upon the antagonist relusingto be bound by it. (Phillimorej Int. Law, A'ol. I, sec. (iO; Triquet et al. c. Bath, 3 Uurr. 1{.I pp. 14-80; I Ualleck, p. (Jl.) INTERI'HKTATION AND SCOl'E OF THE CONVENTION. Before proceeding' to a c(»nsideration of the treaty or convention under discussion, some settled rulc> re<»ar(lino- the inter[)retation and scojie of treaties art here cited. Re^ardinji' treaties like tiiis for the peaceful settle- ment of disputes. Sir Sherston liaker's Ilalleck on International Law (3d edition, ^^tl. I, p. 467) says: If the contending parties have agreed to abide by the de cision of these referees, they are bound to do so, except in INTERP leases where the [fnicd icUhin ihcl (ill t lie agreemer \io hr decided by Ihdiiiids and pret VmUtcd to thitti, i Itlic award of tli Iticaty, in 1827, > \u\' the Tnited ^ •submitted to h lic{;;ude, p. Greanleaf !• |:5L'l): Wiieii parties hviiting in sucl any uncertaint iiK'iit, it is cone (if the parties, iiij;, was reduct \ idus colloquix liU'claration at as it would ten Iditlcrent contrs til the prejudii The first n It is not alio pirtatiou, for ^ terms, and tlit tlu^re can be n rally preseute( INTERPRET ATION AND SCOPE OF THE CONVENTION. 23 lcast!s where the award is obtained by collusiou, or is not con- \tintil within the limits of the submission. It is usual to specify, liii tlie agreement to arbitrate, the exact questions iriiich arc ]/{> /;(' (leei(le})ly to the interpretation of stiitiites and private contracts. (I Kent Oom., p. 174; Wheaton Elements Int. Law, Pt. Ill, chap. 2, sec. 17, |iiii(l p. Sof); I Halleck, ]). 20G.) To <)0 outside of the treaty in search of conjectures lis to endeavor to elude it. (Vattel, Le Droit des |(;.'ns, Liv. II, (Ml. XYIl, sees. 2(J3-2{)8; Halleck, Vol. 1. sec. .'Jll, p. 2117.) (Jreanleiif savs (Greenleaf on Evidence, Vol. I, }). |;]-_'i): Wiien parties have deliberately put their engagements into hviiting in such terms as imimrt a legal obligation, without any uncertainty as to the object or extent of such engage- iiii'iit. it is conclusively presunied that the whole engagement (ti the parties, and the extent and manner of their undertak- |iii};, was reduced to writing; and all oral testimony of a pre- vious colloquinm between the parties, or of conversation or I doclaration at the time when it was completed or afterwards, as it would tend in many instances to substitute a new and [dillerent contract for the one which was really agreed ui)0U, ti» the prejudice, possibly, of one of the parties, is rejected. 'i'he first maxim of Vattel is: it is not allowable to interpret what has no need of int«r- inotation, for when a treaty is conceived in clear and precise toriiis, and the sense is manifest, and leads to no absurdity, tiicre can be no reason for refusing the sense wdiich is natu- rally presented and manifest. To go elsewhere in search of f ! 11 : i it i.i ■ i ? hi ! I ! 24 INTERPRETATION AND SCOPE OF THE CONVENTION. conjectures is to endeavor to elude it. ( Vattel, Le Droit desl Gens, Liv. II, Ch. XVII, sees. 263-298; Halleck, Vol. I, 297.i The whole treaty must be considered togetlier, and anl interpretation given to each particular expression so as tol agree with the tenor of the whole instrument. (Vattel,f supra; Halleck, Vol. I, 298.) Vattel says: In order to obviate all difWculty it is necessary that thel arbitration articles should precisely specify the subject inl dispute — the demands of the one, the objections of the otberl * * * if then the sentence be confined within these precisel grounds the disputants must ac(|uiesce in it. (Chitty's Vatf tel (Phila.), p. 277.) It is clear that the scope of the treaty or coiiventionj is to be limited strictly to the conferring powers of| the instrument. The decision by arbitrators must be disregarded when tbel tribunal has clearly exceeded the powers given to it by thel instrument of submission. (Hall on International Law, 4tlij Ed., p. 379.) There bein<>' no obscurity' or ambio'uity in tliis con- vention, reference to tiotcs verhdcs: or (li])loniatic corre-l spondence, or any otlier extraneous matter, is not! permitted, to enlarg-e its scojjc, as is attempted to bej done in the British aro-mnent regarding tlie claims to| be considered under it. If there were obscurities on tlie face of the treaty itself, the rule is j)erfectly well settled as to contracts] and treaties that the first resource for enlightenment | nmst 1)0 to read all the })arts of the treaty or con- tract together for a solution of tlie difhculty, and the] second, to search tlie contract or treaty for any] ri'fcn'iirc 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 proofj of intention can Justify any interpretation of a single i)ro- vision which brings it into collision with the undoubted I intention of the remainder. (Hall on Int. Law, 4th Ed., | pp. 353-354, and see p. 350.) INTERPRETATION AND SCOPE OF THE CONVENTION. 25 111 tliis Cfise there is exjiress retereiice to tlie tiiid- |iiii;s of tact of the Paris Tribunal as disclosiiio-, defiii- liiit:', and limiting- the claims which are referred to the l('()iiimissi(mers. Tlu»se finding's are made a part of Ithis Convention. (See Sedgwick Stat. C()nst.,p.22i).) A reference in a statute to a prior statute, a document, lor a map makes it part of the statute. (See cases liited l)y Sedgwick.) It ajjpears by this record, as well as by Protocol IXLI (Paris Ccmimission, Vol. I, U. S., p. 43). that lller Majesty's Government prepared every word and lliiie of that finding, and that it was substituted for Itlu' proposed finding submitted by the United States. Article IX of the award shows the same thing. iTliiit award being made, by a settled rule of construc- Itioii, a ])art of this convention, by express and defini- Itivc reference, by date and article, in the third i)re- Ijiiiihle thereof, we find that the claims and the persons ill whose behalf Great Britain may claim compensa- Itioii before this commission are limited by Article I, land by ever}- subsefpient article referring to the Iclaiiiis. "Each claim," and "on account of anv claim- lanr" apjiear throuidiout. And all refer back to Arti- jclc I, and so back to the Award and Finding of facts Itnr description and limitation of the subjects referred |t<) the Commission. This being so, by a settled rule of international [law, a})plical)le to the interpretation of treaties as la^ainst the nation [)resenting the draft of the subject lot' tills reference, the construction, in case of dispute, Iniiist be taken most strongly against that nation. Hugo Grotius lays down the rule that "the inter- Ipictation must be made against the party which Irafted the conditions: ^Ut coi/fra cniii Jiiit nitcrpreta- V'ln, till} romUtUmes eloeatus cst.^" And Vattel says: i ; •- I [ere is a rule which cuts short all chicanery : If he who could 1111(1 sliouhl express himself plainly and fully has not done so, \r-ll ; ! i I i ! 26 INTERPRETATION AND SCOPK OF THE CONVENTION. SO much the worse for him; he can not be permitteil sub I sequently to introduce restrictions which he lias not expressod.l It is the maxim of Roman law, "An obscure contract h.armsi those in whose power it wiis to lay down the law more clearly.'f The equity of this rule is self-evident; its necessity is not less! obvious. There can be no assured convention, no lirm and! solid ('oncesKi<»!i, if they can be rendered vain by subseciueiitj limitations, which ought to have been announced in the actl if they existed in the intention of the contracting parties! (Pai)ers relating to the Treaty of Washington, vol. 5, p. 13,| Berlin Arbitration.) By a parit}' of reasoiiiiio- sueli nation can not enlargfl the scope of the draft. This Commission is as dearly limited l)y the sched-j ule of British claims before the Paris "^rribunal, aiidl these specifically and with exact precision describefl.l from paj>e to])a|neinchisiv('. in the "Findin<)" referrdi to in Article I and the pi'eamble of this (!onvention,[ as if that schednle were set out in the body of tlitj Convention. Article 1 refers to a schedule which pur])orts to hel a sunuiiary, but it nlso refers in teruis to the Hndingj of fact for the full and detailed statement of what isj referred to the Commission, and the findin<>s of factj are, we repeat, expressly made a part of tlie Conven- tion b\- referrin<>' back to the )r<'auible, where tho8t| iindinii's are identified with as nuicli effect as if eni-j bodied. The authorities iniite in dedarino- that the ordinary] rule of interpretation of contracts and statutes aj)plies to the interpretation of treaties. The rule has added! eni))hasis when the internatifuial couipact is entered! into auiong- nations whose (»rlvi'(l in the cliuius of the one Hiition }i<>ainst the other, thev avoided fiiKhuji- aiiv fact Ifsscutially iuvolvin<>' a cfnichisifni of h'ahihty. ( )iie (|iiestion n the contention of Great Britain here that that G()\"ernment may present a national claim as distin- guished from those presented on account of its sub- -M'ts. (Id., p. 478.) 30 INTi:riI'KETATION AND SCOPE OF THH CONVENTION. Artic'U's I, III, jiiid X ciiihriU'i' the coiitcrmeiit nil jurisdiction upon the in'l)itriitors, and so inucli of tlu'sil articles as is nocossarv to cover the point we suhniit.j (Id., pp. 4711, 481--i.y AuTicLH I. Whereas ditleroiKu's have arisen between thel tloverninent of the United States and the (lovernnuMit ofl Her Britannic iMajcsty, and still exist, f>ro\ving out of tliej acts coininitted by tlie several vessels, wliicii iuive j;iven rise| to ///(' clditns jiiiu'ricdili/ ktioini as the '•'■Alahttma CUdmny And whereas her I'lritainiic Majesty has authorized lieil llh^\\ Coniniissjoners and plenipotentiaries to ex])ress, in a! friendly spirit, the re{>ret felt by Her Majesty's (loverninentl for the escape, uiuler whatever circumstances, of the AU(\ hdiiui and other vessels from I'ritish ports: Now, in order to remove and adjust all complaints audi claims on the part of the United States, and to provide foil the speedy settlement of such claims which are not adnuttedl by Her Uritanidc Majesty's (jovernment, the high contractf ing parties agree that all the said claims (poirinj/ oat of acUl vommitti'd hy the aforesaid vessels, and f/eiieriealli/ hioa-n as thi\ '■^Alahaiua (Jlaims,"' shall he referred to a tribunal of arbitral tion to be composed of five arl)itrators, to be apiminted iiil the following manner, that is to say : One sliall be named byl the President o'ihe UintedStates; ouesluill be named by Her JU'itannic Majesty; His ^Majesty the King of Italy shall bej retpiested lo iiiiiut one; the President of the Swiss (Confed- eration shall V > ' equested to name one, and His Majesty tlie| Emperor of iii^izil shall be recjuested to name one. * « # * # AiJTiCLK VIII. * * * The said tribunal shall firstl deternune as to eacdi vessel separately whether Great Britain] has, by any act or omission, failed to fulHll any of the duties set forth in the foregoing three rules, or recognized by thel principles of international law not inconsistent with snch] rules, and shall certify such fact as to each of the said ves- sels. In case the tribunal find that Great Britain has failed! to fulfill any duty or duties as aforesaid, it may, if it think jiroper, 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! has failed to fulfill any duty or duties as aforesaid, and does I 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 INTKHPI INTERPRKTATION AND SCOPE OF THK CONVENTION. .'H jiiiiioiiiits shall be paid by (Ireat Britain totlie United States III ii((!ount of tlie liability ansinjj from sncli failure, tm to picit rt'ssfl, according to the extent of such lial)ility as decided lliy I lie arbitrators. * * • Tilt' niendjers thereof shall subscribe a solemn declaration hat tliey will impartially and carefully examine and decide, to lilt' l»est of their judgment and according to justice and LM|iiity, all Muitters submitted to them, and shall forthwith jiKKccd, under such r'll^s and regulations as they shall pre- sciibe, to the investigation of the claims which shall be ]in'sented to them by the Government of the United States, kiml shall craminc loul decide upon them in such order and fiiiiinirr as thei/ nun/ think proper. * • * Tlir deeittion of the assesHors shall I)e (jiven upon each claim till initiujf, and shall be signed hi/ them res/teetireli/. \(»\v, in or (Ictcnnine by juridiciil nsccrtiiiu- ^iiciir what was covcrt'd by tlio plmtsc "ociiuM-icjilly jl-hts and disabilities as the original claimant h\(iuld have stood imder the convention. I"'itr the ascertainment of the jurisdiction of the •('((iiimission over the subject-matter the Convention jof F('l)ruary H, 1(S!I6, consists of three documents:* (1) The convention standing- detached, which does jimt disclose what claims are referred to tlie Com- jiiiission, (tr how they "nrise," or what they are, and is Jiiiiiiitclligible on the (picstion of jurisdiction without jiftcii'uce to the other two documents which are named |in it. (2) The treaty sio-ned at Washino-ton on February |2li, bS92, named in it; and from this it a})pears that jtlic claims referred to the Connnission nuist be claims I 'arising'" under that treaty; that is, the 0(Mnniission limited to the c(jnsiderati(m of claims for injuries Itliat arose out of the assertion of the claim of the rnited States to jurisdictional rights in the waters of Jl)( ring Sea with reference to seals, which is thesubject- niatter of that treaty. Ill CDiiiiectiou with tlie arjiiiiiieiit on construction to fsliow, tb'; Coni- liiiissioner.s will lie I'lirniahod tlie Treaty of 1S!(2, the Findingp of Fact, laiid tlic Scliodiile — ji]i. 1 totIO, iiicliisivo — therein reierrod to, iinil the(Vm- jviiiiion <)1' 18!IH, printed together in convenient form, to be inferred to |liii icciinite comparison with the progress of the argument. ]{ s 3 33 34 INTERPRETATION AND SCOPE OF THE CONVENTION. :**•* Cleiirly, here is a limitation wliieh prevents tliisi Commission taking- cognizance of any claim forinjuriesl connnitted by tlie United States ofenerally, as, for in- stance, on a merchant ship or a whaler on ihe higlij seas, which would have been cog-nizable under thej conventions of 1853 and 1871. (3) The Award and the Finding's of tlio '• ii'horail of Arl)itration are found specifically refeiTed to in] this convention by date, and especially find there s})eci- fied certahi Finding^s of Fact; and so tlie "claims" must "arise" as well by tlie Award and the Finuingsl of Fact as by the Treaty; and in this award and find-j ings of fact so referred to as defining* what this Coni-j mission shall take cognizance of (a limitation iul addition to that which we have seen attached by tliej reference to tlie Treaty of 1892), we find our way toj tlie carefully pre})ared schedule of claims, preparedf l)y Great Britain and sworn to by the claimants, ofj which this Commission is given jurisdiction in this in(iuiry. The subject-matter of that finding- — to which p\, r-^lative words and repetitions refer throug-hout tliei finding-, article by article — is stated in No. 1 of tlicj Findings of P^u'ts, and is this: These several searches and seizures, whether of ships orl goods, iind the several arrests of masters and crews, respecT tively, mentioned in the schedule to the British case, pp. 1\ to 60, incliiHive, etc. Thus, tlu'oughout crcrif paraf/raph of the findings,! hi each one coiitiiiuiiig, as in Finding 1. Thus '^-. - 1. (d) Questions as to the value of "the said vcsm ■ or their contents, or either of them, and the (piestiouk as to whether the vessels mentioned in t'-.e scheduleI to the British case, or any of theiv, ^vwe wholly or iii| part the actual ])ro])erty of ( ti/^ons.'" ' ./. . (h) It being understood that it is "open to thel United States to raise these questions or any of tlieuil "ill .>>se ioU' ■) .. IIX (FP. uid j)ou [ON. INTERPRETATION AND SCOPE OF THE CONVENTION. 35 > vents this I for injuries I , as, for ill- 1 liie liij^lil niifler tliej '.'t! •'l.til rrud to iii| here speci- e "claims" e Fiiulino'sl d and find- ; this Coni-j Liitation in I led by the I Diir way to! s, prepared! aiinants, ofj ion in tliis! wliich .1] Lighont the I o. 1 of thci r of ships or! reAvs, respecf }h case, jjj>. JJ le findiiiLrs,! Thus \-. -, SAID ves^( : le (piestioui e SCHEDULEJ rliolly or ill! if they think tit in any future negotiations as to the liability of the United States Government to pay the ivmounts mentioned in the schedule to the british :ase." 1. That the "seizures aforesaid," with the excep- Hoii of the Patltjinder seized at Neah Bay, were made, 3tc. 3. (a) "Th't the said several searches and seizures ^t' vessels were made by public armed vessels of the ['iiited States," etc. {li) "That the alleged acts or otfenses for which AID SEVERAL Searches and seizures were made were fn cMcli case done or committed," etc. {<■) "That the said fines and imprisonments were or alleged breaches of the municipal laws of the 'iiited States," etc. (No reference to "fines and luiprisoiiments" appears anywhere except between •iiui'.s 1 to 60, inclusive, of the British case.) I No reference to the subject-matter. •"i 1'hat the district courts of the United States '^'.• h any proceedings were had or taken for the "!ii >fse of condemning any vessel seized as men- iioll' I ..A THE schedule TO THE CASE OF GrEAT BrIT- ux (FP. 1 TO (10, inclusive) had all the jurisdictions iiiid powers of courts of adinirnlty, including the prize jurisdiction," etc. It follows that, as to everything except "Additional 'liiiuis," the convention of 1896 confers jurisdiction [ipoii the Commissioners for three ])ur})08es only: (1 ) To determine the amount of each claim appear- • .' hy the Ih'itish schedule (pp. 1 to GO, inclusive), Ik' ainouiit being the (piestion on which the finding [ii express terms declined to pass. (2) To determine as to the liability of the United >t;it('s on account of "each" claim of each person for iijiirics, as set down in the liritish schedule (pj). I to li". inclusive). i n ill 36 INTERPRETATION AND SCOPE OF THE CONVEXTION. INTERP (3) Ti) detei'iniiR' tlic (iiiestioii of liability of tliel United States wliieli niio-ht be raised on account ofl "wliether the vessels mentioned in the schedulei 1 to ()0, inclusive), or any of them, were whollvl oi 1 part the actual ])ro|)erty of citizens of the Unitcdl States. Findinj>' I, last i)ara,urai)h, clearly points out tliatl the question for the future neji'otiations of the Goveni-f ments is only as to the lial)ility of the United State.* "to pay THE AMOUNTS MENTIONED IN THE SCHEDULE j TO THE niiiTiSH CASE." Article 3 of the Conventiorl provides that the Connnissioners shall "hear" onlylj questions of fact ^^ not foil iid hi/ the TrilnuiaJ of Arhk f ration,'^ and, of course, to ascertain what was fouiidl and what is therefore excluded from the co<^nizance| of the Commissioners, can only be ascertained by the findino's themselves, here again, referred to as a| part oi' the Convention, as has been seen. The claims, then, referred l>y the Convention, aiJ no part of them, claims of vessels, but are "clainis'l on account of "persons," "arising" by the treaty,! the award, and the tiudings of fact. The woiilj "arise," in pointing the way to the description of tlitj particular claims to be refei'red, as used in Article ![ of the Convention, is clearly used in the sense dif "having their originals," "presenting themselves "ai)i)«'aring from."* The only other sense in which the term can l)fl used in connection with the context would be that otl "cause" or "creation," which would give to the seiij tence the meaning that the claims for injuries weitl caused or created by the treaty, the award, and fiiidj ings, which of course would be absurd. ^riiese claims are of persons, as ascertained by tlitl findings, by the schedule (pp. 1 to 60, inclusive), ani by the convention of ISiKJ. Article I o "claims on ac Article III I determine, et 'assess the co Itliereof." Article VII Jinvarded to G \(((((»iint of any Turning no presented bef landing, and ( Cii.itnants, the the claim of ( 1 1)0, inclusive) The details ijl'o to make u is used for il amounts are pass on amou in consequenc lot' Article III ('liumant and (1) William M *Latliaiii'8 .loliimon's Dictionary, "Arise," 3; Ciabb's Synonyms, pi 291; Webster. "Arise," 2. James Do INTERPRETATION AND SCOPE OF THE CONVENTION. 37 .Vrticle I of the Convention names the claims as claims on accoimt of injuries sustained hy jio'so us. ^^ Article III provides that the Cominissioner shall lilctcrmine, etc., in respect of "each claim," and "assess the compensation if any to be paid on account Itliereof." Article VIII uses this lan<>-uag'e: "The amount liuvarded to Great Britain luider this Convention on Idccoioit of any claimant shall be paid," etc. Turning noAV to the schedule of claims of ])ersons I presented before the Paris "^rribunal, found by the linding, and of the persons who presented them as cli.imants, the following is the list and the nature of tlie claim of each, as set out in "schedule (pp. 1 to (iO, inclusive) of the British case." The details are omitted of the several items that I go t(^ make up the claims, excei)t in one case, which used for illustration of every other claim. The amounts are omitted because the findings did not pass on amounts, and their assessment was referred, ill consequence, to the Commissioners by clause sec(md of Article III of the Convention. Claimant and sworn owner. Sohooner. (1) William Munsie Carolena Items of claim without amounts, as follows: "Value of vessel, value of outtit, insur- ance, wages of crew, passage of crew, pas- sage of mate, per- sonal expenses, legal expenses, estimated seal catch for 1886, to- tal claimed by owner with interest at 7 per cent to date of pay- ment." (li) James Douglas Warren . Thornton Similar details. 3S INTERPRETATION AND SCOPE OF THE CONVENTION. Claimant aud sworn owner. (3) Charles Spring (4) Charles Spring. ....... (5) Thomas H. Cooper (6) Thomas H. Cooper (7) Thomas H. Cooper (8) Thomas H. Cooper (9) Gutmau & Frank, Gut- mau as the owner, Frank as equally in- terested in the results of the sealing voyige. (10) James J. Gray (11) George Byrnes (12) Charles E. Clark ^ Richard Hall, William e. Goupel, Hans Halgeson, part- ners as Hall, Goupel & Co. (13) William Muusie Frederick Caruie (14) Edgar Crowe Baker . . Daniel McLean Rosine Gibson John C. Blackett (15) Morris Moss rl6) Morris Moss (17) John M.Taylor ^ Samuel W. Bucknam . > Bela R. Lawrence ) (18) Charles Spring (19) Victor -Tacobson (20) William INIunsie Schooner. Onward Favourite W. P. Sayward Grace Anna Beck . . . Dolphin Alfred Adams . Ada .... Triumph Juanita Pathfinder Triumph No. 2. . Black Diamond. Lily Similar details. Do. Do. Do. Do. Do. Do. Do. Do. Ariel Kate Minnie Pathfinder (sec- ond claim). Do. Do. Do. Do. Do. Do. Do. Do. Do. INTERPl The claims c Claimants. David Monroe . Margoticli Hans Guttorms Harry Norman 1 James Ogilvie I James Black. . Warren 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 imprison- ment. Margotich Mate of Onward Do. Hans Guttonnsen. Master of Thornton . Do. Harry Norm an ]\Iate of Thornton . . . Do. James Ogilvie Master of Carolena. Do. James Black Mate of Carolena. . . Do. Warren Master of Dolphin . . Sufterings and losses; navi- gating four vessels from Unalaska to Sitka. John lleilly Mate of Dolphin Sufferings and losses. George P. Ferey. . . Master of Say ward . . Do. A. 15. Laiug Mate of Say ward . . . Do. Louis Olseu Master Anna Beck . . Do. 3Iichael Keefe Mate Anna Beck . . . Do. W. Petit Master of Grace Do. C. A. Lundberg. . . Mate of Ada Do. Xo claims are made in behalf of any other j)erson. In schedule 1 to GO in the cases of ]\[orris Mo.ss, "(twner" of the Lilfj; of Byrnes, owner of the Tri- iiiiijili, and of Bucknam, as owner of the Ariel, and in those cases only, claims are set uj) in general for the (icw and hunters, but only for their share in the esti- iiKited future catch, which, in the details of each of tlidse claims, made by the owner, is inci idled in the claim of the owner, and so stated. Xot only are there no other persons named as cliiiinants, but there are no other claims of persons iiK'iitioned, described, or suggested in the schedule of claims referred to this Commission, or in any paper ict'crred 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 pre- sented for the first time, in the whole history of the sul)ject, in the British argument. i f 40 CLAIMANTS BRITISH, DOMICILED IN UNITED STATES. A "lumj) sum" for })ersous in general not naniedl or sugf^ested in the scliediile — tor crews and othersl whose names are not mentioned anywhere — will not! do under this convention, and the new position ofl Great Britain advanced at page 56 of the argument I can not be maintained. This brings us to the following proposition: There are two classes of '■'■ pcrsons^^ amoufi these claim- ants, who, hij the settled and adjudicated principles oj\ international laiv, are not ^^ persons in ivhose hehaln Great Britain is entitled to claim compensation from tk\ United States r These are: (1) Original subjects of Great Britain still owing! that nation a qualified allegiance (in respect of sov- ereignty and certain exterritorial laws), but who by domicile in the United States, Avithout naturalization, owe allegiance to the sovereign claims of the United | States and obedience to their nuuiicipal 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 I asserted by the juithorities of its sovereignty — execu- tive, legislative, and judicial — and obedience to their exterritorifd laws. And of these in their order. (ONE.) CLAIMANTS WHO WERE ORIGINAL I5KITISH SUBJECTS, HUT DGMIf'ILED IN 'HIE UNITED STATES. In respect of some of the schooners, there are two owners in ihis class, as to one of whom there may be CLAIMANTS — BRITISH, DOMICILED IN UNITED STATES. 41 loiiht, but ill respect of all elainis presented in belialt" [»t' Tlioiiias II. Cooper, as owner, the taet of his domi- filc in the United States is conclusive a^-ainst them. The IWtisli argument assumes (p. 3S-3!)), and |i('('ially from the letter of Secretary Gresham, which is thi're imported into this case for the first time, that he <>iiiissi(m of the words "liritish subjects," in Article of the Convention, as defining those for whom lirtat liritain might i)resent claims under the Conven- tion, was a means of enlargement of jurisdiction rather \\v,\\\ of limitation. As a matter of fact, that descrip- tion was eliminated, for the reason that its use, and he similar nse of terms importing the original citizen- ^hij) of a claimant, had in all prior Conventions been |)n)(hictive of much embarrassment to the Commis- fiioners. K'unning through the proceedings of the Mixed 'onnnissions of 1853 and 1871 it will be seen that L'liiiins were constantly presented in behalf of persons [who were technically Hritish subjects, because never natnralized in this country, and yet who had estab- lished legal domiciles in the United States. The same difficulty had arisen under all the other [Mixed Connnissions which have been before referred In such cases it was insisted on the one side that Isuch a description of per.sons could not be eliminated Toni the convention, although at the same time it woiihl be admitted that a person legally domiciled in a country at the time his claim arose, though not iiatinalized, could not recover against the country of his domicile, before such connnissions, or against any othei- country, by virtue of his original citizenship of the country of his original allegiance I nder the Mixed Commission of 1853 the term "british subject" was in such case eliminated from the convention, by construction, by the British umpire, |liales, in the Lauraufs case; the umpire holding that 42 CLAIMANTS — HRITISII, DOMICILED IN UNITED STATES. :«? the term " British suhjeot," althoiijili correctly describl iii<^ the jjolitical status ot'tlie chiiinaiit,\vas not intendedl by tlie (jouveiitiou ot" iSoS to mean tluit a British sul>j ject 40, 2(i7, 1836-37, !)41,^ 'Jol.) The United States did not choose to call out anv- \\\u<>: farther reoardinj»- the undoubted fact of that residence, and Great Ih'itain did not seek to ex])lain It. It was found by the testimony that Cooj)er was II married man and had resided in the United States liiid made his home at San Francisco for more than piity-five years continuously, and that he had never hi'cu to Victoria but three times, and then only for a [tow (lavs at a time on visits. It is universally held that residence unexplained is Icdiudusive proof of domicile. Dicey states the rules of evidence as f(dlows (see Diccv on "Conflict of Laws," American notes by [I. P.." Moore, ISihJ, p. 132): (1) A person's presence in a country is jiresumptive evi- leiicc of domicile. (-) When a person is known to have liad a domicile in a pveii country, lie is ])resuraed, in absence of proof of a L'liaiige, to retain sucb domicile. (■>) Residence in a country is prima facie evidence of the intention to reside there permanently {animus maneiuli), and |iii so far evidence of domicile. See cases, and see Sir W. Scott, so often quoted on Itliis subject: "Time is the g-rand ingredient in con- Istituting domicile." (The Harmony, 1800, 2 C. Kob., |3J2: see Dicey, p. 137, note.) " Residence is prima facie evidence of domicile." |(Sii- Sherston Baker's Halleck, Vol. I, p. 421.) : i 44 CLAIMANTS — HHITISH, DOMICILED IN UNITED STATES. CLAIMANT Pliilliiiiore on Domicile, pa^^e 14(i, says: Every uiau is viewed by the law of nations as a member o| the society in whicli lie is found. Residence is prima fam evidence of national cliaracter, susceptible, however, at all times, of explanation. If it be for a special purpose iiiiJ transient in its nature, it shall not destroy the original oJ prior national character, but if it be taken up animo maninul^ then it becomes a domicile, superadding to the original ol prior character the rif^hts and i>rivilegeH, an well as the (/ml bilitien and penalties of a citizen, a subject of the country ii| which the residence is established. (Cited ill arg-umeiits with Ur. Phillimor Ulidesk case, in report of decisions, Commission i. .^e Set- tlement of Claims between Great Britain and tliei United States, U. S., 1856, p. 445.) To the same eifect see " The Indian Chief,^'' Robl Adm. Ke])orts, 3-12, and collection of anthorities, audi their analysis in Dana's Wheatoii, sec. 322 ct scqS^ sliowiii^sels seized mustl be taken as conclusive. (In this we fully agree, biitl on other and distinct grounds from those taken bvf Great Britain.) (/>) That although domiciled in the iJnited State:!] since boyhood, and for nearly half a century, becausel he was not naturalized, and because he was an origi-[ mil British subject, he could, under the municiijall laws of Great Britain, take out a British registry foil his ships, and put them under the British Hag. (t) That so domiciled, by virtue of such registry! and flag alone, in direct violation of the munici})al lawsl C. LAW LIBRARY CLAIMANTS — BRITISH, DOMICILED IN UNITED STATES. M tlic United States of exterritorial force, and in direct ioliition of their criminal Hi..tuteH, also <»f exterri- liiii force, and in direct defiance of the iiiitional ■liiiiii and assertion of jurisdiction over the sealing kviitcrs of Berin'hbors in San Francisco, who wei'< native- Imhii citizens of the United States, j)rotected no more tlijiii himself by the laws of the United States, having- lict'ii sent by them to take seals in the same waters, liiiay be seized and c(mdenmed, under those laws, Iwliile at the same time their owners, his neighbors |iiii(l fellow-citizens of thirty-five years, witness his |ri(('ts go and come, and take seals with impunity. (r) That if in these circumstances the United States iciitnrced the law alike and with equal hand u]»on the liio]i('rty of all their citizens of San Francisco, be lie a citizen by domicile or like his neijihbors by iia- Itivity or naturalization, that Cooper, by reason t>f his (iiigiiial political allegiance and by having' ])Ut his vessels in a British registry and under a British iiag-, is a person on account of whom, for these ])enalties I that he has suffered, and while still retaining- his Amer- ican (htmicile. Great Britain can claim compensation t'lniu the United States. We aflirm that no such monstrous doctrine can be tolerated for a moment. In such circumstances the citizen by domicile (for tliat is what he is) can not lay aside his character as a "national" of the United States whenever he sees fit t(» defy the same sovereignty and the same laws tliat ])rotect him, by assertin<^ 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 45 M I i 46 CI^ilMANTS BRITISH, DOMICILED IN UNITED STATES. orig'iiial allegiance to make reclamatioi for him againsil the nation of liis actual allej^'iaiicc^ for what he hasl suffered for violation of the hitter's laws. We ([iiote from the lang'uag-e of Secretary Fish, inj his letter to Mr. Bachiller of xVpril S, 1X74' (2 WharJ ton's niji"., see. -lo), the principle involved: It 7;onl(l be a luoiistrous doctrine, which this Goverumenll would not tolerate for a moment, that a citizen of tlie United! States who mij-ht deem himself injured by the authorities n(| the United States could, by tran.sferriug his allesiauce tol auother power, confer upon that power the right to inquiiel into the legality of the proceedings by which he may have] been injured while a citizen. Protection can not be invoked b}' domiciled for- ei, p. 484, nnrl| authorities.) An'ht kviis asserted ))y rhe United States to protect a doini- lilcil person, althon<>'li nnnaturalized, df/aiiisf every iidiini, crcept the nation of his oriqinnl eiti^ensliip* fSee I.I.. p. r)05.) Sec also Marsliall, ( '. J, in Murr »y i\ Chxyiiiinf/ lulsrii (2 (Jranch, p. 120;: Carlisle r.'Unitui States ;ii; Wall., p. 147). \\ liarton, in his Criminal Law (Sth edition, sec. J2(jli-2S1), (piotes Phillimore to the point that a man ail have only ut I must agree with Hett'ter in holding that a mere resi- kleiit ill a State owes tor the time being allegiance to such [State, and may be guilty of treason to such State if as a Tliis (lirttiiictioii is ikh; in ])()int here, but attention is called to 't ia iiiiiiortion with tho (|iieHmoii of original iillegiancvi, coiiHidered later. ili'ii' the United Staten ih not imserting tho right to protect ('nopor for Iviiiliiiion of tho lawH oi' (^reat Britain, but is denyiufj tho right ot (ireat iBnt.iin to protect Cooper in his defiance of the sovereignty and "iola- Itidii of tUe laws of the Luilwd States, t '.'I 48 CLAIMANTS BRITISH, DOMICILED IN UNITED STATES. private i)ersoii lie wages war agaiust it or renders comfor| to its enemies. Cobbett. for instance, when in the United States \va never naturalized, nor did lie ever restrain himself fioii declaring that he was and continued to be a British subjectj yet no one would liave pretended that Cobbett, while residiiif in the Tnited States, was not liable to be indicted for at ofl'onses, political or otherwise, made indictable in the placi of his residence, and the same position has been, as we havJ seen, taken by the British (Government in respect to citizeiil of the Inited States who when residing in Ireland havebeeil engaged in conspiracies against the British Government. And he closes with this (]iiotati<)n froiii Pliinimon All strangers commorant in a land owe obedience, as sul>| jects for the time being, to the laws of it. (( It is not necessary to citizenship that tlie A onii- cih^l inliabitant should have the right to vote or lioldl politlciil oftice;" and under all the authorities, withoiitl exce])tion, a ]»erson so domiciliated owes civil iuidl ])olitical alle;^'ian('e to the local sovereignty. (Set! Judge Hoar in Coinmission, 1S71, Report ot" Britislil Agent, p. -JSO, Appendix (k 'A'enice," 2 Wall., 274;| "Peterhort"," •) Wall.. (K); "^Mrs. Alexanders Cotton," •2 Wall., 41 A'euus,"' S C'r., 2^6; .Slorv's Contl. Laws, sec. (JS; Morlex's Int. Law, sees. 6S, HiS; Trist's Int. Law, II, 28.'}, 298-!»: I, Sl>, S3; Hnlleck's Int| Law, 717, sec. "Jg; 702, sue, 7: TOo, sees. 12, 13, 14; 2 Kent's C(u.i., s,'c. 20.) And in return he is entitled to the e(jual ])rotectioiij ot" the laws <»t" that sovereignty v/ith other citizeiif,] with the very limited (jualification that the local sov- ereignty can not interven<' to ]»i-otect liim from the conse(piences of" liis infraction of the sovereignl'y ortttl th le exterritorial laws ot the nation ot ins oriifiui allegiance. The local sovereignty can ])rotect him and protedl his property and make reclamation fitr him against every other nation, except the one of his original alle- giance, in any case; and in case of war, e\en if thel country of his original allegiance is belligerent, flu ;i(liiiiiiistrative •< [)\l obtuiuiiig leg try exist, or if s Ivaiii; (did IIk'H I hiiilijri'ts and othi \slnli' hikI ilie jiixi Itliiit ( ()ini)eiisati liiiiii oi' prejmlic lucts <'!' injustice r,ri/(iilhi^ (ill !> \to tlif hues of th( lUit even H When the suli lor iciiiporarily r Iddiiiicile.'l there, Iwiiat affected. (iiciit Britain li lilt .1 Hritisli fiitlier, lot' l.iifrlnutl, and ta ll'.ii;f|;mii, -,vii8 gui! I'liaLs. XVIII.') 'J^j'!,ji-,,.„vi^t- CLAIMANTS IJRITISH, DOMICILED IN UNITED STATES. I'dUiiti'v of his local allejiirince l)eiii<>' neutral, mav intervene to ])rote<-t Uiin as a neutral as a;iainst the ■diintry ot" his ori<>inal jille^iance; Inif never, ereii 'ni ^hdi ease, if lie lias been f/nilfi/ of an. act hostile to the rdiiiifri/ of his orit/innl alleffiaiicc* ^\'hat riiilit of" protection or re( laniation I'eniains t(> riic nation of orijiinal allegiance a;iainst the nation «if ddiuicile in respect of the ^iihjectof the foi'nier so Iniiiiciliated hnt not natni-aliz'vl in the latter? There is no conflict of authority in international i;i\\ on this suhject, and the strictest rule aji'ainst the i(iiuiiTr\' of domicile in fa\(»r of the nation of original iillcL^iance is laid down hv Hall (sec. 87, ]>i». 21tl-2!>L*), ; tdllows: Tlicy (the iiation.s of <»iis>iual allegiance) have tlie right to It'Xiict re})aratioii for niii/treatnient of tlieir siit ts t>y tlie li(liniiiistrati>e a.si('iits of a forei,s>n •iovernnicnt im means 1)1' (ilitaiiiiiig ley'iil redress tliroiiji'h the tribunals of the eoiin- iTiycNist, or if such means as exist ha\e been exhausted in |viiiii: and iheii Imvc tlie right to minire tliat, an lictirecn lliiii stihjrrfN and otiicr prirate in(liri(h(((lN, tlie protection of lite sItilrdiHl the jiixiiec oj' tlie courts .slinll he afforded (!iit e\en Hall (|ualifies this rule as follows, 'ii'T): \\ lien the subject of a state is not merely passing through |i>i' It iiiporarily resident in a foreign country, but has become Idoiiiiciled there, the right of his state to protect him is some- |\vli;ii affected. Mall says further that the jurisdiction of the state ilomicile is complete o\ er foreiarticular country, and as such is possessed of certain municipal rights and subject to certainl obligations, wliicii latter character is the civil status or con [ dition of the individual, and may be quite ditt'erent ftom 1 political status. The political status may depend on diflerent| Uurs in (lip'ercnt connfries, irhcrcas the ciril .status in tfoverncii unirfr.s((lii/ l>y one ninjik' ininciplr, iiamch/, that of (lomink\ which is the eritcrinii established Ity (aw for the jxtrpose of deterl mining ciril status. Hut this suUject will be considered more directlvl when we come to the status of American citizeDsl alle<>'ed to liave l)een domiciled in Great liritaiul (J)ifra. })[). 53-(»6). Tlie cases cited in the Hritisli tu-g'ument ou tliel subject ot" domicile (]). oS), serve t<> illustrate tlie| prhicii)le, thus : In "2 Knapp, V. C. -i!);"), it was decided: (I) Tiiatl Drummond was a British subject; (2) that he was] domiciled in France; (3) that under a treaty })ro- vidin^- for compensation by the Frencli Government I for losses to l^ritish subjects, Drunnnond could not claim compensation from France as a British subject because of his domicile in France.* Here in tiiis case our ]>ositions are as to Cooper I precisely the same as tlieic held as to Druinmoiul and France, thus: (1) That he is a British subject bv original alle(>iance, as Drunnnond was; (2) tliat atl the time of the allejied injury he was domiciled iu *In the same rejiort (2 Kuap]t, 1'. C. 51) will be found similar holdiiip eqniilly strong against tho claim in behalf of Cooper. In Long's ci>m it is held that a ('or]>oi'ation composed of firitish subjects existiug iua foreign country by the hitter's assent must be held to be a foreign cor- poration. CLAIMAJ the I'nited Sti inr compensa (ircat Britain the Tnited St ('oopcr becau; lliut the adde( IS en<>'a<>eainst ((Jrcat Britain by the rules of international law, but 1)\ the treaty between the nations of July 3, IHlo, las follows:* Tlie iubabitants of the two countries, respectively, shall Ibave liberty freely and securely to come with their shij)s and ciirs'oesto all such places, ports, and rivers, in the territories iitoiesaid, to which other foreigners are permitted to come, Ito enter into the same, and to remain and reside in any Jparts of the said territories, respectively; also to hire and locciipy houses and warehouses for the purposes of their com- Imerce; and, generally, the merchants and traders of each Illation, respectively, shall enjoy the most complete protection land seciurity for their commerce, mut subject always to TUK LAWS AND'STATUTES OF THE TWO COUNTRIES, RESPEC- ITIVELY. It can not be seriously contended that in behalf of llicr subjects residing in the United States as provided ill this treaty, and enjoying complete ])rotection and security of their laws, but subject to their laws and stiitutes, as provided and stipulated in the treaty, [(ir'-.it liritain v';aii make reclamation on account of any such subject tor injuries suflfered at the hands liif the United States while in the act of violating those laws and statutes, more especially when such statutes are in tiie nature of regui.itions of trade and coiiimerce of exterritorial effect, directly applicable t(» all citizens of the United States everywhere and 'all [)ersous." * I'loaties and Conventiona between the United States and other I'owtrsd). 410, ed. 1889). 51 111 52 CLAIMANTS BRITISH, DOMICILED IN UNITED STATES. In jtoiiit under this treaty is tlie opinion ot" tin- Coiinnission for tlie settlement ot" c) -iins between the Tnited States and Great Hrilain under the convention ot" IS"),') (pp. ,'}H6-i}87), and also elted in Barclay's ease under the Connnission ot" 1871. Finally, as to the Coojx'r chiss of claims, the lo<»'i- cal position of (Jreat Britain is: {(i) That under the I'ules <»f international law audi tlie treaty of ISlo unnaturalized British subjects lef>'alh' doniicile(l in the United States are entitled td the ])rotection of the laws e([uall\ with Aniericiiii citizens: l)ut — (h) T\\vy are at the same time exempt and privi-l lened from the effects of the o})eration and execution! of the laws that protect them, and thus possess tlit* ])rivile,ues and ])rotection of both nationalities and oblio'ations of obedience to neither; not to (ireat| Britain, because beyond her territory and jurisdiction, and not to the United States because they ma}' claim | protection aoainst them as jiritish subjec^ts. It is not true, and Fiore em]»liatically denounces the extension of such })rotection as is here claimed Inl Great liritain in this (dass of cases in his Nouveau Droit International Public, 1, odl : "The ))rotectioii is illicit and unjustifiable when its object is to confer a j)rivile^ed })osition u])(»n the subjects or citizens (Nationaux) residino- abroad." Cooi)er was, at the time he became the legal owner of these vessels, and at the time o+"the seizures que"" the United States, and in their i-elations to him as| ao-ainst Great Jiritain, an Amcvican citizen, and as such his ships, as we shall see, were entitled to cam no flag but that of the United States, and were not | even entitled to Ih-itish registry. There remains to l)e considered in cases like Cooper's I the position taken in the liritish argument, which, we | take the liberty to obserAe, should carry its own refu- CLAIMANTS — CITIZENS OK THE UNITED STATES. tiitioii, tliat under coiiveiitioiis ot' this kind, in tenns tor the adjnstn'ent of in-ivate chiinis, hke all the con- ventions on claims ever entered int<. in some way or (itlicr "the flao- and the register" of a olii|) are to carry liint (»nly conclusive evidence of the nationality of the (iwiier in the sense, not only ^>f political citizenship hut of domicile, and are also to carry that conclnsive |)r('sumj)tion, not only on the hij^'h seas, but into this international court. Hut 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 Hritiun, it will be treated under a subsequent caption. (See pp. 66 to 85.) 63 (TWO.) Tin: CLAIMANTS WHO WERE ORIGINAL CITIZENS OF THE IMTKl) STATES, NATIVE HCMiN OR NATURALIZED, AT THE TLMH OF THE ALLE(iEI) INJURIES, BUT NOT AT THAT TIME NATURALIZED IN (JREAT BRITAIN UNDER THE NATURAL- IZATION TREATY OF 1870, EVEN IF DOMICILED IN GREAT lilv'ITAIN, ARE NOT. UNDER THIS CONVENTION, PERSONS •IN WHOSE BEHALF (iREAT BRITAIN IS ENTITLED TO CLAIM COMPENSATION FROM THE UNITED STATES." U. S. and Sp.anish Opin. Answer to In the fii. t ])lace, the burden is upon Great Britain to show that !:lie claimants are such persons, and if it were true that legal domicile would give them the umpke.No.i iiccmUmI status, the record fails to disclose the proof p^^'^*^®"^;^ nf domicile within the rules of evidence in interna- ' tinnnl li'.w.* l)Ut conceding for the purpose of this argument tliMt these claimants had a domicile in Great Britain, tliere is no authority wdiatever to sustain the position of that nation that it can in their behalf, in the condi- tittns here presented, make reclamation (ujaitist ihe * See p. 89, et seq. 54 CLAIMANTS CITIZKNS OF THK UNITED STATES. U)i'it<(l States, irJiiih is still tlic'ir coin/tr// of politiroil (illcffidi/cr. Hw cUitlioritic's iire all tlio otlior way. IVt'orc procccdinj^' to cite tluMii, it is proposed tu l)rieHy aii!il>zo the authorities cited in tlie Britisli ar^uiuent, coMnnenciiii)' at ])ah or domiciled in a country shall be secure from injury; hut, of course, the ])oint is not discusseil as to how far such foreigner will be protected as a^i'ainst his own country; neither is the principle re- ferred to as to obeying' the laws and respectinji' tlie| soverei^iu claims of his own country. The opinions cited from the domestic body of tem- porary commissioners aj)pointed l)y the United States to distribute the award for the Alabama claims are not usualh' held to be authoritative in any couii:. Their law of decision was statutory and wholh' muiiici})iil. Many of those opinions are adverse to the Britisli positions on man}' })oints, but we shall not cite tlieiii 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 (juotation from Commissioner Rayner's decision is cited in the Britixli argument, from the case of West r. United States No. 91, where, after citing the geiuM-al princijde from Vattel (as cited in the op[)osing lirief here), the com- missioner goes on to state the a])])lication of the riik' to foreigners resident in Kngland, as there ([uoted; but it was not asserted in that opinion that the riglit 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 sov- ereignty of the country of origiiud ])olitical allefi'i- ance. Indeed, the statement in that oj)ini<»n, referriiiir CLAIM ltd the right of Iiiativity," refe Itlic next line s Iniciit), "this 1 jis within the j * * "Bu Ithc deck of iii;i\ rightfullv The connnis Itiiuc of war as Itcction, but iis llciirued comm Icveii as of a ti After statin}. ichin-acter," he Itiiue of war) u liicter from res Ifiir (IS rcf/ards 1 original allegit Ibnvever, th ^Riiyner in the ^idi'cision, for w lish subjects, al States, were m inished by Gre within the pro The reasoni j(i|iinion, and w incnt, is ill coi [iis we shall sei (h) The sec siiiiK^ opinion i (|ii(it('(l is not : nil iuternatioui it will be se liiw , l)efore coi if ;i claim wer CLAIMANTS CITIZKNS OK THE UNITED STATES. 55 liii tlic rinly so htn;^' as he lis within the ])ale of her jnrisdiction." iVnd a,i>ain: * * "Jiut as lonji" as he remains on the soil or Itlic (leek of u shi|» of the British (ioverninent he iiiiiN' riiihtfully claim ju'otection." The connnissioner cites Kent as to the conditions in Itiiiic of war as to alien enemies and their rilect to execute her own laws, the same ansAcii which he there puts in tlu^ mouth of that nation woiilil be returned, viz: That is my aifair. I am fully comiieteiit to to tak«^ care ol| my own subjects. But that (iovernment would add also to the llnitcil States in a case like the present, were their positions reversed : The policy of international law will not })ermit yoiil to make re(damation from me, or to jn-otect my siili- jects for a violation of my laws that l)ind them, (ir for rebellious defianci^ of mv sorvereiyii authority over a territory which I claim — (tiid orcr which yoH\ do not rioiiii — exclusive jurisdiction. (r) The IwJhiu Chirf' In that case the })erson had never lived in America I after it became a nation (not after 1773). In addi- tion, the decision was dire<'tly contrary to that stated in the text of the o])})osin<:>' arj^'ument, to wit: It was that the owner had lost the benefit of his native American character, if he ever had any, wdiich lie had not. This was not a case where the oriii-iiiiil citizen of one country, domiciled in another, was makinii' a claim thronyh tlu' countrv of his domicilia- tion aji'ainst the country of his oriuinal alle^^iance. ((I) The case of The President was a claim made in behalf of an Amerii-an citizen domiciled at the Capi' of Good Hope, a C(»lony of Holland, with whidi nation Hnjiland was at war. The onlv connnent we make is that this was not a case where an American citizen, unnaturalized abroad and owinj>- orig'inal alle- CLAIMANTS CITIZENS OV THE UNITED STATES. liiiiicc to tlie United Stiitcs, wms iiuikino' a claiiu |ai:iiiiist the country of" liis orioinMl iillco-iance. (c) In tlio caso of tlio ^^^(t(■|ll('ss, a liritisli subject |\v;is domiciled in Boston, and it is a case stron<>"ly in |Hiiiit tor the United States before this f\)ininission [in the case (»f the (daiinani ('oo[)er. It turned u])on tlie hiw ap})hcal)h' to domicile for I mercantile and trade jjurposes, and was for an alle<»ed violation of the second section of the navigation laws I (if (Jreat Britain, to wit: \o alien shall exercise tlie tnule or occupation of a factor in tlic plantations. The case is clearly not to the ])oint cited. It is not ii claim for indenmity for injuries sutl'ered from violat- iiij^' the laws of Kn not a (daiii iiicuces of act Itinii of her la\\ (0 "'rhe v< |(;i>c is not in p \s to citi/eii tliiit they wei (ii-cat Hritain, to die rnite(l 'ijiirics sutiere Ii • of violatir |iU'stion, and i iii'isdiction of (idvcrnment ii nikcii in that a It is to be ol ever as to this tlic Kevised S 1 !•.')(!, etc., wer Stiitcs, wdiicli 5 ng- all th luliiiiralty," to s(i/,ure in the - s(»vci'ci<>-n autli juriMliction to ( Moreover, t jurisdiction or i ill terms and Vi tidii. had, as to ct'tcct: and fin pnitcction of a In the arg'in Hill tli(» counse Tlie assertion ol j pute ;is to Jurisdict tivc lirancii of the i CLAIMANTS CITIZENS OF TIIK UMTEl* STA'l'KS. 59 iin;iiiist Spiiiii, tlic ('(Hintry of oriji'inal iillt'^iMiiiici', jiiid h\,i> not ii chiiiii tor injuries resulting' from the coiisc- |ii(ii<'('s of jicts liostilc to that coimtry, or f<»r \ iola- itiiiii of her liiAVs. (/') "Tlic rr//».v." P^n• the reasons just Stilted tliis lr;isc is not ill ]»oint As t(» citizens of tlie I'liited States, then, assuiniiii;' ItliMt they were (htiniciled but not naturahzed in llirciit Ih'itain, what are their relations as claimants ltd the I'liited States and (Jreat liritain in I'espect of jiiiies sntfered while sealin*;' in lierinu" S(ni, in the •;i • of vi(»latin• ,(.s' (((/itijist its mnl nationals. It may be in tlie interest of coniuMsrce and tliel lishinft- industry of tlie natioji tliat all its tisherme'i alikel should be nnuU; t(! respect a close time, even for niijiraioryj tishes, and even iu tiie deep sea. A State has a ri^rht to lejiislate for its own subjects cm tlie| high seas. (Vol. 10, U. S. lieprnit, p. ;>(>.) xVnd iio-aiii in the Jiritish counter cnse (\'ol, VI1I,| p. 85): In connection with this branch of the subtect, viz, the! scope and effect of the legislation of otl'«r nations, it is cssenl tial to keep in mind the well-known rule of international law,! that the laws of a nation affeer none but iU mni suhjectN, audi the subjects of otlwjr nations wiiose jiersons or pro^ierty uiayj be within its territorial Jurisdiction. And it ])rocee\v, until the joint resolution of Con<>Tess of the ^"'i.*'- Stat iiiicd States, in l.S(i8, (leclarin<>' the riu'ht of expa- |tri;ition. which was shortly followed l)y the treaty lii'twceii (in'at Britain aud the Inited States (d' 1S70, ]iin\idin^' f .'• naturalization, it was ludd l>y both liivnt Britain and the rniteinal allenality" (|iiii;('s 214-215), after a fidl review of the whole sub- jt'tt. savs: That "under a sntind system of interna- ls. ii • i - i 62 Cl-AIMANTS- DITIZE3.V OF THE UNITED STATES. tioujil liiw sHt'li ;i "hrmy' as n (loul)](^' nationality sliouli not he sufr-rcd T< <-xist:" and that nothing' sliort mi actual natr r,iiizaTi*Mi t-arried out l)y solcnui and foniiiil act as tlic . i\v of" nbe- particular country may rcnuiiti will lia\(' 1 If cttcc- To divest the sul)j(H't oF his fornicr allefi'iance: • that iM-niiuiciation ot" former alle<>'ian('(' orl riiil'.ts will not suHi. e to ctrine.) It is laid down hy Hall (p. ■J44) that until a newj alle<>iance is contracted 1)^' naturalization, even siiiw the naturalization laws, a citizen nuist be considered as boun'iance to the i^overnment under! which he was born, and subject to its laws. "Until these laws [natvu'ali/ation laws] are satisfied, tlie State into whidi i ])er,son has innuiji'rated can have uoriglit of protecting' him." (Id., p. 2i)I).) In the N lew of counsel for the riiited States, the I statement j»»»t quoted from Hall is too ))road, but the undoulriw-d and universal rule is laid down in a I sununary of "his exterritorial jurisdiction and sover- ei^ni ri^ht l)v Sir Sherston leaker's Halleck, Vol. I, 200: Offenses vicaaust tlie law of a State, regulating or prohibit inn ""?/ p*irri<;ular traile, if comiuitted l)y foreigners within the terrlt«triiiJ Jurisdictiou of another State, are not punisii- able by the tribunals of tlie State whose laws they have violated; />/"" if comuiUteft by Its citizens, thci/ are so piininh' able, no muu--r irltere committed, ichether within Its otcn limitHf on the high iHtnn, m in a foreign conntrii. A distinction, liowever. must be niiule between mere com- mervlal regmn^ pernnttiug' or prohibiting; a certain trade, and statutes creating a crimiiu\l offense, Avith personal penal ties expressly applicable to all the citizens of the State. Tlie commercnii domicile of a party may sometimes exempt liin from the operation of the laws of trade of his own country, but while ius ibrmer allegiance continues he is liable t^) CLADFANTS — CITIZENS OF THE UNITED STATES 63 |i;i(ui' the penalties of a criminal ott'ense against bis own Itdriitry, which penalties may be enforced whenever becomes Jw^ hill the reacii of its miiiiieipfil laws. — (Citing: Fo'lix, JDioit Int. I'rivc, sections r)l(>-o;J2; American Jurist, Vol. JXXll, pp. ;Wl-38(i; .Masse, Droit Commercial, torn. II, sec. |;!S, .';7(i, et Hcq.; Belle, Uerecho Internacional, pt. I, Cap. IV, Isecs. 5, (j.) Ir need nctt l)e ar<>uetl tliat the absolute riu'lits of IStiilcs, lyino" at the t'oiiii(hvtiou ot" everytliiiiji' else, is Itlic riu'ht of self-preservation (Dana's Wheaton, sec. (!l), and it would be a vaiu ri^ht if a nation could iKit ])rot(M't its j)ublic })ro))erty ajiainst its own citizens wlifiever it and thev niav be. Of course such laws can not be enforced upon the llivrsiiii of a citizen if he be beyond the jurisdiction, ll)ut no one would deny the power of the ^■overninent r(» sci/e u))on his [)roperty for violation of such laws, if rhe property be found within the jurisdiction or lupdu the high seas. It is laid d(»wn in Lawrence's Wheaton (Elements »f Int. Law, (Jtli ed., p. 17')) that offenses against I the law of a State, prohibithig or regulating a nar- ykiil"!- traffic, or regulating the laws of trade and navigation, are binding u|)on the citizens of a State wherever they may be. In Bars' Private Int. Law (Gillespie Trans. Edin- l)nrgli, 2d ed., p. 135 and notes) the undoubted rule liii this case is laid down: "T/)i(fii/((l ciliiO/.^liij); tiiat tor eertaiii jairposi-:^ the local sovereipiry conhl intervene amll ])rote('t him e^<'n a, and eitations.) 'i'he British ])osition in that ease was of eoiirsf strongly for the e\ce[)tion so stated I »y Judge Ihtar, as ai)pears Wythe re))orted arguments of IFer Maj-j esty's eomisel in the last citation. In such case as stated hy Kent (I.ect. W, sec. 'Ih. p. 49): "The person so domiciled does not cease td l)e bound l»^' tlie allegiance due to the countr\' of lii> birth." It has been seen that in the Barclav Case tlic demurrer was decided advcrscK' to the rnited Stato on two grounds only:* (1) The use of the term " British subject" in tlic convention, aiu (2) That it appearecl afHriiiativcly, as admitted l)y the demurrer, that liarclax' liiid not riolntcil tJw ollrfi- aiicc line J'roi) lihii to t/ic coiiiiti'i/ oj'liis (foiiiiiile. (llepoi't of British Agent, (\)in. '71, p. 2!)7.) In the Koszta case the United States asserted in the stroiig<'st possil)le terms the general doctrine ])8is of tlio o])iiii(>n of the I'oinniissioners will lip foiiiul atitage 13 of tile Aiiu'rii-an Ajieut's Report (vol. 6), imper« relating to the tivaty of Wa8hiii;{tou. ' The point cam till' American Sec Ko:(ztii in Turkey siiliject of AuHtrit Icik, c. XXIX, r\ CLAIMANTS — CITIZENS OF THE UNITED STATES. It is the doctrine \vlii('h is so stroiig-ly asserted in the liritisli argument here. Ihit tlie Hritisli argument takes no notice of the exception, whicli we liave dis- cussed, more strong-ly and emphatically laid down l»y international authorities, when the question has collie up for consideration, than the <>'eneral rule stilted. As has been seen, that exception was not in ill anv of the cases cited in the British argument ln're, and in them there were no facts bring-ing the (|ii('stion up for consideration. Ivos/ita was a native-born citizen of Austria, and the right of the (Government of the United States to protet't him was asserted ag-ahist Turkey — not Austria. What the [)ositionof the United States would have l)(H'ii as to Austria is stated as follows by the Secre- tary of State: Had Koszta been within the jurisdiction of Austria when he was seized, the whole character of the case wouhl have been changed, and the forcible taking of him from the legal custody of Austrian oiticers could not have been defended on iuiy ])rincii)le of nuinicipal or international law.* (2 Whar- ton's int. Dig., p. oOo, sec. L'03.) .Fosei)h l^urns was a sailor on an American whale- ship, whicli was sunk b}' the Alahama. The whaler was American, l)ecauso she was American owned, and sailed from New Bedford, Mass. He therefore, for the jiur[)oses of protection by his nation, had all the rights (it a domiciliated citizen, and something more, tliat of a sailor on a ship which was beyond (piestion Amer- ican territory, because American owned. (See Domi- cile authorities sKjn'u.) His claim was disallowed by the Geneva Arbitra- tidii on the British showing that he was apparently a Tlio point came n\) directly with Austria in Simon Tou,sijj;'s cnse, and tile Aiiierii-an Secretary of State, Mr. Marcy, who had sought to protect Koszta in Turltey, declined to intervene to protect Tonsig, an original siiliject of Austria, and who had returned there temporarily. (See Fal- li'ik. c. XXIX, s^ t.) Am. Ed. n S 5 65 66 NOT NATIONAL CLAIMS. l^ritisli siil)jo('t.* (See West r. riiitc'ro])erty hiul been taken by the authority of the soverei;j;nty of the United States for violation of the municipal laws in (juestion and for defiance of the soNereig'U claims of that nation. NOT NATIONAL CLAIMS. Tlie British aru'ument seeks to ax'oid this conclu- sion, l)oth in the case of Uooper and in the case of the American citiy.ens allejied to be domiciliated in Great Britain, on the <>'round that these are not ])rivato claims, but national claims, in the sense that they arc to be recovered in the in(livi(hial riuht, so to s])eak, of the (Jovernment of (ireat iiritain; and it cites (p. 4!)) the case where China paid to the British Gov- ernment >^3,(iO(),()()0 on account of debts due to l^ritish subjects from certain Chinese merchants. Hence, the contention is that no defense j>"oinIand; but before the Mixed Commission of 1S71 it was held in such a case that the right to recover dopcmled uiion the national character of the deceased, and not upon that of his administrator. "The Commissioners are all of the ojiinioii that the jiarticular natiou- alltv of the adnuuistrator does nijt allcet the i|aestion.'' (T, 18, cases 109-212-205.) NOT NATIONAL CLAIMS. 67 lie entitled to chiini, and no jn'ovi.sioii tor tlie Jiiiditiii<>' iuid tindino- of "eacli" claim. The distiiu'tioii between lliat case, as stated ^»y ^Ag^Bs"' ^^" liliudvhui'n, ,J., in the ])assa.i''e 48. ( >t' course it is the universal doctrine, to which there arc no exceptions, that if a citizen of one natii^n com- [(iiiins of wroufj;' done him by another nation, his Gov- criiiiient nuist assume the res])onsil)ility of ])resent.in<»' tlic (daim. A (daim on behalf of foreign subjects of aiKither Government under the established rules nf international law is not entitled to consideration unless a demand is made l)y the G(>vernmeut of the ctiiintrv 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 scq.) This is the entire extent of Great liritain's interest in the claims. Under all claims conventions between nations tluouij-iiout their history, the Connnissioners under tlietn have been occupied for the most part in deciding tor or aji'ainst claimants on the (piestion of their })er- ^Kiial status; and this much space is devoted to tlif.t 68 VESSELS NATIONALITY FOLLOWS OWNERSHIP. subject solely out of ivs])eet and (lefereuce to the learned counsel who are instructed to present the point at some len-unient for Great Britain.* "UNITED STATES OTVNERSHIP, " OR THE BEARING OP THE REGISTRY AND THE FLAG ON THIS CONTRO- VERSY. The caption "United States ownership" is taken from the op[)osin-ht of search, and so on, is relevant. Whatever of inviolability from and conclusiveness ag-ainst in([uiry there may have been, or whatever other question of national dignity may have been invvi(Iin' testimony upon tliat ])oint, and Great liritnin may (iccnpy otlier months witli counter testimony, but tliat iifti'r all is done, this is the utmost extent of the ])nr- jxisc of the provision; that immediately after the cxidence shall be closed, and the record made, l)oth sides are in the sanu^ position they were befoi'e, in this: That the re^^istry, the flag', and so on are still a con- ( lusivc [)resum})tion on the (piestion of ownership, i. e,, tliat tlu^ showino- of the l^ritish fla'ain of ne<^'otiati()ii, ajiain of treaty, and a^'ain of arbitration, to have l)een in the wav of ■ It. I'll prodncmt'' sometliino- th that mi2' Siu'iis o f th le oams to tl lis nar ht b rticuh dl )e called a resu d ir end run tlirouiili th 11 the history of a decade and a half. Hut after all, lid notliin<>- came of it, not even the r'nricHltis \t is s lulls. Onh' vacuum, and no l)irtli! Xow the positions of the United States, on the ither hand, tl ire tiiese First. That the convention opened the door to the iii{|iiiry, leaving" the (piestion of citizenship to be determined on the testimony l)v the (Commissioners !is a matter of fact, ai id tl le qui 'stion of lial)ilitv on that determination of fact to be decided by the Com- missioners as a matter of international law. This argument has discussed the questions of inter- national law under this proposition in res]iect (»f 70 * VESSELS NATIONALITY FOLLOWS OWNEliSllIl'. Bi'itisli subjects (l(»nii('il(Ml in the I'nitcd States and Americiiu suhjects alle<»'e(l to l)e domiciled in (»reat liritain, on the assumptioii tliat it iiiieii t(i arjiuiueiit — wdiicli is now (h'nied — after estahhshin<>' citizensliip of either cliaracter as a matter of fact, that tliere remained a juridical ([Uesti(»u as tart of a vess(d. Words of such sio-nllicance as "by its citizens," in Article N'lII of the treaty of 1892," couhl not even ill a contract be set aside as havinj^- no meaninji': and they certainly can not l)e eliminated from a solemn treaty betw(H'n nations by a mere observation on the part of one of them that those W(»rds had not been intentionally used (o[)|)osin<>' argument, p. oS, tbl. 20), especially as the iiupiiry as to citizenshij) is reserved all throus that the vessels, the names of which appear in the case, have been seized while e.xercisiii^- a legal right wonld not conclnde tlie liability of the I'nited States to pay if, for instan(!e, it turned out that some of those vessels were owned by citizens of the United States and subject to the laws of the Tnited States. VESSELS — NATIONALITY FOLLOWS OVVNERSHIT. And {tf^'jiiii, at ]»ii<4'C' 54, this MpjX'Mrs: Mr. Justice llARKAN (oiicoftlio iirbitriitors). Wliat. tluMi, is Iclt tor future iicjiotiation ? Sir CilAULES ItrssKLL. The (piestioii of ainoimt. Mr. Justice TTarlan. Ouly of iiinount? Sir (JilAULKS RussKi-L. Tlic (|ue.stion of anionnt. und .i lit lie more tliaii .uiiouiit; a (luestioii of amount, spealviiifj of till' matter in ^[ross; a (luestion of liability as regards items of riiat amount; as, for instance, the <|iiestion of wliether ilic claimants ])ut forwanl are entitled to claim — whether tlii-y are United States citizens. A[)iirt iVom tlu' conclusivoiioss of tlic treaty, award, lindinos^ juid convontioii, let it be teiitntivx'lv cnnsidered as '-iii open ([uestion ot" interuatioiial law, and this will he considered nnder — 71 NATIONALITY FOLLOWS OWNERSHIP. Assnininji' that the (juestion is still a juridical one, not (•on(duded hy the trea*^^ the positions of (Ireat r)ritain are not tenable in any coin't adniinisterin(►.) And the same thin^' as to the rejiister and the tla<>" is stated in other places. The learnino- and industrv bestowed on The l\i":lit of Search in the opposing- brief is impressive, for the reason that the conclusion arrived at is not as indeti- iiite and unsatisfactory on that nuu*h discussed subject as have been all other declarations of Great 13ritain. V\) to the present time that Government has never disclaimed the rio-lit, or, as it is called in the aro'ument, "liermission to visit" a vessel Hying- the United States Han'. The last official communication of the British Gov- oi'iunent to complete the correspondence there quoted 72 VESSELS NATIONALITY FOLLOWS OWNERSHIP. on tlui stihjcct is the letter of L<>r<1 Mnlmeslniry of June 11, l(Sr)S, to Lord Xiipier (IJrit. iiud For. State Pjipers, l,S57-8, Vol. no, i>. oiH), ms folN.ws: Geiioral Cas.s obsorvi's, in liis note to Mr. Napier of Ai)iil 10, IS.'iS, that "a iiiercliaiit vessel upon tlie lii,«:Ii seas is juo tected by iier national eliaritter. lie who lorcibly enters her does so uiioii his own responsibility, ('ndoiihtedh/, i/a rrsNcI (ifi,sii)iu'.s /«e ([iiestiou of rio'ht ;ni'' >\r(Hi^' iiiid daiiia^i'es W(Uilfl lie one f<»r judicial inciuiry in the end. liut the (hsfussion of the ri^ht of search is, by the W'ly, and in the present connection, only academic ^J'he (piestiou here is as to the r'nilif of Anicricait (lafliorifi/ to tula' an Aiitvricoii-o/fitcd ^//'qt, n'/iatcvcr her rcf/isfr//. 'J'he United States nuist deidine to accept as inter- national hnv (»n the subject the nnuiicipal instructions of Great Britain to re^iiistrars of shi|)pino', as (juoted on ])iio-u 43, folio 40, of the <)])posino- aroument. The rule of international law as to the effect of reji'- istry aniono- nations has been stated by Great Britain VKSSELS NATIONALITY FOLLOWS 0\VNEH!li Hag and assume tlie IJritisli Uiitioual ehaiactei'. Tlie [oiidilioiis necessary for obtaiiiinj; registry, in the case <>!' a lii|i not already registered, are the production to the icgis- fnir of a certificate by the builder, in a form prescribed by liiw.aiid of a declaration (also in prescribed form) that the [,//(/; /,v Ilrilisit oir)ii(i. It is not the tint]/ of the rcj/istrnr to (jinifition or ativcrtaiti the iirriirdfi/ of cither the l>i(il. As (I miiiistrritil ojticrr^ lie 'v IxhiikI to ticctpt them ft' Idiilcrcil to hi til. I'nv false statements in the certificate the builder is liable |to ii penaltj', and for making a willfully false declaration tlic (iwiier is liable to be indicted for u misdemeanor and to tloiicit his interest in the slii]), liidreat Hritain.as in the United States, the law does not Kisitively recpiire the registration of any vessel. lUit the |(lis;i(lvantagcs and disabilities incurred by omitting to pro- |(ii!c it are practically sullicieiit to make the registration of lliiiisli-owned ships universal. Till- rej/ister, though in ordinary iine.stioii.s arisini/ UNUKR I.MINICIPAL LAW cviileiu'e of the title of the pi'rs n refjiNttred |((.v oirner, IS NO'I" CONCLUSIVE in (I ipiestion arisini/ lietireen other jiarties, NOR is it necessarily Sl^FFlCIENT PROOF lOF Tin; national character oi' Tin-: ship. A transfer jti) a foreigner, at sea, or beyond seas, of a registered I'ritish liip. is sullicient to change its ownership and the nation- lity of the vessel, though not followed by any registry. iTiic law of registry is a part of the law by which liritish trade and inivigation are regulated for fiscal and other pur- hioscs; and a ship is rei/istered as British on the rohintarif Unldriifion of the person clainrhu/ to be owner WITHOUT |i'i ituiiOR proof. Cliicf Justice Miuistield (in Cheiniuant v. IMcrson, 4 Tiiuiit., ,'}r)7) said: Tlie register is not a document reijuired by the law of [nations as expressive of the ship's national character. Smith's ^Mercantile Law (\)\). 143-4): ^|) ship is required to be registered, registry only being luc'i'cssary to confer privileges on that particular ship. 74 VESSELS NATIONALITY Fi ILLOWS ( )VVNi;iiSlllP. Pfirsons's ^[;inrini(' L-nv (Vol. I. p. ,'»!»):: Tlic law is nnwilliii:;- In recnf^iiizt' in the tact of re!:i.s\. Ill, )). U«): The refjistry is not a cUirnmient required by tlic laiv nations. Tlie reruey-|)inioii,s, «i49) : The statutes do not rfifiiirt a ■rs'SHel to be registered audi enroded: and It' i>inir< an Amer- ican citiaen to piu'cliase and i\mn\ a t'oreig-u shi]), amii sa AS : The sliip so pu;^clla^ied becomes cnrirlfd to bear the flag aiul | Deceive tlM* protei^tion of tiie riiite'., sec. 410, sums up the international (pii'v ti(rti in these words — as to the vessel's character: Tlie question as to the disabilities which tiie ur nicipal niisof the (iovenimentof the owners might impose on such TTPssels did not concern other nations nor afi'ect tlieir nationality. So far as the international sidee*' o>e(piestion isconeerued, th^' i)osition ed in two 1; siicli a tpiestioi tsst'ls at sea. Tiic national bui psscis of the nati |v used to convej lie In \\ liicli the \ , # I The word •' tlag Itt'! national law iitiniiality of the A \ cssel as a sul iiiility any more liy other nationa nil (iwnershii). Ill l)arker r. \' ., ;i(i7), Kent, ' jcssi 1" as a wan |v !i vessel wl Irluiiin'h not I'e ItJitcs. And in lie ])r('sent ben I'd I iio depart 1 lify i'ollows pri |nii;ilit\-. See |i. 2 i:'i--_>(;o-a, riiiL;' the judn'ni jiuii seas: "(Joi If the tt-rritoiy . And In the United States fi-oni Story to lie iir(S(>nt bench of the Su})renie Court there has Iceu ii(» departure from the jjriiiciple that nation- lity t'oUows private ownersiiip — not ownershij) na- loiialitw See United States v. Hoo-ers, loO U. S., ji. 2P.'i-L>(i()-;}, where .Mr. Justice Field, in deliv- piii:j tlie judo-inent of the court, says of shi])H on the |ii;li seas: "(Jonstructively they constitute a ))ortion the territory of the nation fo irh'icli thc'ir otn/rrs l'/o;/r/." "The admiralty jurisdiction of the country the owners (if the steamer, they beino- citizens of lit- I'liitiMl States, is not denied, and the steamer bein*^ [iiiiix inabh' waters * * * we hold these waters ln' liiu'h seas." "iirts of admiralty administer international law, juil it is a connnon thiuo' for those courts to entertain |i"^liuti's as to tluA ownership of vessels, and other liti- I'liiiiis as to them, althou\ torciniicrs, aii'l slinwiiio' jis dociDiK'ntcii juid r,^,, tcreii iis t'oreio-u sliijis: mid Hie juduiiu'iit ot' rlnJ courts or the title piissiii;^' 1)\- ('((iKh-iiiiiatioii, is ci cliisivt' cvcrvwlu'rc. In t!i(- cjisc citcil ill the IJritisli ar^^iiiiu'iit (/»','.so//J ]). 31, tol. "»i>j, the suit w;is a collisioii case in til Hfitisli Aduiii'ally, and wliolly hctwccn I'^rcnvli ;iiJ Italian owners. In the case ct" the lirpcr'/iifrDt ('2 DcmI., 3S William Scott held the (iiU'stion of oa\ nership (.; S|)anish dociuneuted sliiji, (l(»cuineiited as Sjiiiiiisll owned, <'(»uid he settled in the British court. In Tnited States r. Jirune (2 Wall., Jr., 2(i4)it\vJ held "that t/ic rrf/isfri/ was not even /irhiid Jarir i^'ii deuce ot" the owuershij)."' Sir Sherston I'.akers Ilalleck (\'ol. I, p. 438); The iiati(Mial cbaracter of merchant ships is, "as a gciier rule, determined by that ol" tlieir owners." And I)i'. I'hilliinore, in his Int. Law (\<)1. IIl.siJ C(X'(JLXXX\'), .says: Shii)8 are deemed to helonj;' to the country under \\] tUij;' and ])as.s tliey navij^ate; and this circumstance is mii chisivc upon tlieir cliaracter. # * * Mlicu, hoirerrr.ii .sail! flidi thtjUdj (tii^l jikss (irrconclutiircon 1liecliar((ci imt hin preferre OitiTiiational co ii(l( r all claim tivil >tatus of tl VESSELS NATIONALITY FOLLOWS OWNKRSHIP. [it is only ships iiiid cargoes engaged in the privileged and [culiai tiade of a nation, under a special contract and the ictidii of tlie government, that are considered as viftected [■ tiio character of tlie nation. ( ,111 there be any doubt that an American sliip may >iilil to a liritisli subject, or a liritisli sliip be sold nil American citizen, in any part ot" the \v«>rl(l,wit]i- [it niiistration, or any donbt that in sncii a case the itioiiidity of the ])urcliaser wonhl j^ive to the ship ■> character and the j)rotection of liis national flag. The (tpposiii}^- ar<>'nment (ptotes the messaj^e of [resident (rrant, in 1S73, in the case of the Viiy/inius. President Gnint (h)es not make the statement con- iided for in the argument, but says, as there quoted: Wlu'ii, therefore, she left the port of Kingston, in October St. under the flag of the United States, skc would appear to tirrlidd, as against all powers except the United States, the l^lit to tly that tiag, etc. On pursuino- the history of the V/rf/iuiits case, as |!\eii in 3 Wharton's Int. Dig'., it ap})ears that on the ti-'niiii facie case presented, the V'ufi'niius was the lin]ierty of a citizen of the United States, who was 77 But it having- |ie true and only owner of the vessel. ppcarcd that the Virf/'mins was not or, ned in fact by litizcus of the United States, the a])ology from Spain Iml tht' sahite to the Hag of the United States were lisjieiised with, as it was conceded by the United ftutes that Sj)ain had a right to achluce ])roof to show Iiat the V'ny}nius\yi\ii not rightfulh' car.vying the flag if the United States. I'ut the Virfjinias and similar cases involving the fiunity of the nation hav(^ no beai'ing whatever u})on |l;iiiiis preferred under a claims convention in an |iiteriiati(»na] conrt, when their rectitude de))ends, as [iiKler all claims conventions, upon the [xditical or i\il status of tlie claimant. 78 VESSELS — NATIONAI.II'Y F( )LLO\VS OWNKRSNIP. Mr. l>;i\iirt(n' is not an aiieiit of the State, in the case (»f a public vessel. In The Si.sfcrs (o C Kol)., ITk"); see 3 Kent, 13ni| 'j Lord Stowell said; A bill of sale is the ]U'oper title to which the inaritiiuel courts of all countries would look. It is the universal iiistiuT meat of the transfer of sliijis in the usa{;e of all UJiiritiiiit| countries. riie riau', then, the outward svndiol (»f owner; 'r^1 ■■Mt ll'V, shouhl ]>r(»perl\' corresjiond with the hill of (11 .Vtty. (Jenl.'Op., 7-', IX(Ui) An ])iil)lieists and jurists, as well as by the entire woil as in the front rank, where there iU'e but two — tli l^reat Lord Stowell and Story. We have him, too, on this (piestion, not as a ttxtl writer, but t'roni the bench of the Supreme Court > the United States, delix-eriiiLi' the juilu'inent of tliiitj court as to the law in such ease in time of jiciice (See if) Peters, pp. r)l8-r)43 .snpni; V. S. i\ Arniisted.)! Thi.s was the case of a Spanish re^'isterecl and (W-j nmented slii[». Not only was she documented a^ nj Si)anish ship and as Spanish owned, bat, hx treatyj l)etween the nations, certain ])rivileu'es were <>'U5iriiii- teed ships of either nati(»n so documented. V ESSE I ll w as held t lii|i'- papers— \\ .|i ownership. Ii;it if a \-essel r.llil \ Ix'lollLi" ti iititleij to any iviic (•!idea\"oriii rt> under the lint it would b( he ijisi^'uise." Tliis was in 1 .iiiiiiients n[)on iile in time of ] le authoriti 4-4.')) of tlie 1 1 iv re\ iewed as (^0 1" I'eters Tills was a (l(» rt'ilitor and an lictlier the re^ cileral statute wiu'i'ship as a iontem})l; ic purjiose of C( > ;i national slii (/') 1<; Wall, This waT< also I'tweena bankr I'l'. 'Hem banki icliii>erts, and 1 "!'k. it was h( II' -^liip was a ] tT>. and the ba tsii<:;iinst the att (r) Cath^t V. ^! .. :.U4). VKSSKLS — NATIONALITY FOI \\v\>\ tliiil the rcuistrx' niid (Idcumciits — tli liiji'- |)ji|)('rs — wci'c Itiit jiyniKi /(!• ic v\'u\{'\\vc u\' S]i;iii- >!i iiw lU'i'sliip. ;iinl the IniijiUii^'t' t»t" the ((iiiiT Wiis t il :i \'<*ssc'l iiihU'I' those cii'cimistjmcc!- "sluiiild in [ciilitv Ix'loilLS' to the suhjccts ot" illlntlicr liiitioii licit Hlllllci 1 t« •,\\\.\ siicli |)ri\ ilcjics, ;iU(l the proprii'toi 'ii(l(';i\'orniu' ii\- traiid to coxcr their own iliey.i ha iiider the tl;in' nt Spain, there can lie iu> douht t it would Ite the dut\' of" our courts to stri;; oH' lie II ■^ii'Uise, Tliis was in time of peace, and Mr -lustice Story iieiits upon that, and sa\s tliat tlie al>o\'e is die olll rule 11 I time ot [teace Tlic authorities siihmitred on tliis suhject (at p]t. -4."!) of the liritish ai'^unu'Ut art? not in jioint, and ire rc\ie\ved as follows: II) 111 Peters, 21,") — Ilosey /•. Buchanan. riiis was a domestic liti coiiteiujilated by the Federal law was only for pie ]uir])os«* of conferring' certain privileges on a ship ■ a iiationa 1 si iil>. 1(1 W,m11., tllO, Cra]w i\ Kelley d lis was also a domestic suit, iiivol\Tnliip was a portion of the territory of Massa(diu- 'n>. and the bankru[»tcy assignment passed the title linst the attaehuHMit. Nothing else was decided. ) Catlett V. The Pacific Company (1 Paine's '94'). 80 VKSSIILS NATIONALITY F( >LL<)\V.S OWNEKSIIIl'. It iii>j)C!irs (listiiii'tlx' tVoiii tlu; decision ot" the couni ill the opiiiiuu |)viiit('tl, tliMt tltere the (|iiusti<)n w-A wlictlicr the iniplii'd \v;irr, it inav be said in passin<^" that the case was r'ltcd as she(ldin<>' some liolii on the subject (and to that extent probably it is Ir'iv) in the United States Supreme Court on the arjj^unitiitl in ia Peters, 51H, sii})ki, where the contention tlierej and hei'e was distinctly overruled. ((I) I'he texts ([Uot(Ml from in all of folio 50 (pp.j 44-4")), liritish aro-mnent, (h) not appear to be eitei but it is assumed that they refer to the Virfjimus easel already discussed in this ar^-ument. (<') Direct issue is taken with the ]h-itish arriz(' iui iiKjuiry going" l)eliiiul tlic judgiueiit oi' iii'ii ;i ('(UU't. It is not within the power of tlie Secretary of State to tc a decree of natuniii/ation issued by a (M>ni])etent The judf-nient of a vaca I'llIU t of the Tnited States. hoiirt <;rantiny to an individual tlu^ riglits of citi/euship is (iitiiicd to receive the resitect given to all other judgments Iniidercd by courts of coniiH'tent jurisdiction, and if not iiii]i(';K'iiable for fraud, is conclusive :is to all the facts inMOssarily i)assed upon. (The Secretary of State to Mr. Hamlin, 1' Whart. Dig., p. 355.) This doctrine is familiar in the United States tVoiu the leading" case in tlie Sn})reme Conrt — " Sjjratt's I Oils.-." This is ([uite a ditferent principle from that whi;'h dd be applied M the registry of u ship, with which udicial or quasi-judicial authority has anything Will IKl I to do. The executive position of the United States as to diMt is a test of nationality is stated in (i Attorney- (i(iicrars Opinions at ]>ages (i4!l-(!52, and there it is toiind in agreement with the Judiciarx' of the United States that the test of nationality is private owner- ''!'• . ... . ,. It follows on British and American authority alike, tliat o\vnershi[). and bona fidr ownership, and not reg- istr\ . confe-rs the riff Jit to carrv the flag.* The jiosition of the United States here, as always, may ;igain be repeated. Thiir nation asserts wii1ti»*>ut qualification, and with emphasis, that where the flag fl(»ats over a ship in time >t' peace, anv other nation invades the deck under it :it iis peril. 'The liritisTi artriiineutcoufiisesrefjistry wiHi "sbiji's papers, "'einlirnc- iuf,' iiiiil e9i)ecially lueaiiinji' the "sea letter" or " ShiiTs pass," issued by tlu! Mivcieign authority only after official investigation as to actual "" iicrsliip. IJ S- -G 82 NOT THE NATION S CLAIMS. '^riic \\i\<^ and lint tlic registry sliould be /ii-i)ii(i/(i(i cvidciict' ')f owiiorsliij). It' it should turn out, how- cxcr, tlia^ the tlii<^ doos not trulv ivpresent tlio uctiial owiicrslii]), there is no ^^numd tor reclaniatioii on liehidt" of the owners wlio turn (»ut to he actual citi- zons or subjects (»t" the nation so invadinj;' the ship, Wliatever there may l)e of atfront to the tiag in such a case is wholly a question lietween nations, with which ]»ri\ate jiorsons have nothin<>' to do tuid for which they can make no })rofit. To do so would he to (;levate the incich'iital infcrinr private interest into the })lace of the paranimiut public one. To do so in cases wliero satisfaction for offendcil dignity is due would l)e to demand for one individual tlie rejiaration owin<>- t(t all the peo))le of a •'•reat nation. Take the case of the British ship Trenf, where an American cruiser took from under the British flajj- the iVmerican citi/ens iVfason and Slidell. This beino' an act of a pulidic ship of the United States, that country was, of course, resjxtnsible for it, The proceedinj^' was variously designated as "wan- ton," as a "wanton insult," "jiiratical attack,"* and so on. An a])olooy was demanded liy Great Britain and a return of Mason and Slidell to the ])rotection of the l^ritish flag. Hut the suggestion was never dreamed of that .Mason and Slidell could liave had any chiim through (ireat Britain or otherwise for damages, for their imjirisonineut and treatment, from the United States. The case of Tlic CaroUnc.f The vessel was an American ship under the American flag and in Ameri- can waters. Great Ih'itain sent her military force under McLeod into the territory of the Unite(l States and destroyed the shi}). *Se(i Brit. For. State Papers, " Trrut." tSee lull bistovy of the case (1 sir Slierston IJaker's Halle 'k, !>. 47", aucl Wharton's Dig., v^ v\ lil, 'MiO). I ireat Bn'taii tlic nets of Mel. ;iTist';iction for 1 i|' tci'i'itory. G he territory on iluciiig evideiic I'driii'ii/c was ai( The matter a\ (Governments. ic r.ritish sub Miil ;md surtere the iiiithoritv o1 I'oth Govern irit'iin — assertc nulawful, as the h'cnt Britain a Siil)se(pientl\ 8.")3,* Great 1 tnr damages. It was held I; ir hrouu'ht befo H'cause it grei which had lieeii The case wall <|UcstIons befor( I'laimants of or • 111 Pn'itish soil. i[iicsti(in of na1 uhjcct domicif ali/,c(l there, av tinii against Gr "'I'siiii or pro] 'niild it be ser .successfully nij ■"^tatcs against ( "iillr acting in '■rear Pn-itain? * See Kei NOT THE nation's Cl.AIMS. 88 (irciit Hritiiiii iickiKtwlcdn-cd her r(N])oiisil)ilitA- tV>r lilic acts of McLetxl, iiiul the I'liitcd Stiitcs (Iciiinudi'd iMirist'iictioii for tlie artVont to tlio flaji' and tlio invasion I tciiitorv. Great Britain asserted the riu'lit to enter lie t( ri'itorv on the ;:round of self-j)reservation, ad- iiluciiiu' evidence of an insurrection, and that Tin' \i'(ifi>'iiic was aidin<^' it. Tlic matter was satisfactorily adjustcMl hetween the lidvcrnnients. In tlie meantime, however, McLeod, jrhf l')iitish subject, had heen arrested on American Mill and sutiei'ed a lonj^' term of imprisonment un(h'r Itlic authority of tlu^ State of New York. I'tith CiovernnuMits — tlie United States and Great r.iitiiu — asserted that imprisonment to liave l)eeii milawful, as tlie act of McLeod had heen assunu-d by |(Mcat Britain as her act. Siihse(|uently, under the ]\Iixed Commission of |lS.')o,* Great Britain made reclamation for McLeod t'lir (lamaii'es. it was held by the British umpire that it could not lie hrou^i'ht before the commissioners as a [)rivateclaim, litcause it o-re\v out of a })urely national ([uestion |ulii( li had been adjusted between the two countries. The case will serve for further illustration on the |(|ii(stions before these High Connnissioners as to the jiliiiiiiants of original American alh^giance domiciled Im liritish soil. Aside from the adjustment of the ^iiucstion of national affront, su])j)Ose that a 15ritish siihjcct domiciled in the United States, and unnatu- |i';ili/,((l there, while in the act of aiding the insurrec- jtii'ii against Great Britain, had been damaged in his iK'isoii or property rights by McLeod's invasion. |<'niil(l it be seriously contended that he could have |siic((ssfully made recdamation through the United iStatcs ngainst (ireat Britain for his injuries suffered jwliilc acting in violation of his original allegiance to I'lvat Ih-itain? * See Report ol' Ajimt of the lluited Stiitos, 311. H4 NOT THK nation's CI-AIMS. ( )l" sil|i|i»»s(' 'I'll! CmoliiKi llild, MS ;l liiJlttcr (if t;iil. tiinicfl (»iit t(i Ix' tlic |)rti|)<'i'ty ot' sticli liritisli siilijci lcu;ill\ (Idliiicilcd ill the I'liitc*! States, or of aij AiiiciMcMii citi/.cii lci;iill\' (loiiiicilc'(l in (Jrcat IJritiiii, ('oiild cither liiiNc iiindc rccliiinfitioii jifijuiist (mc;ii HritJiiii tliron;;li tlic I'liitcd Stiitcs? ( >ii the distinction lictwccn (picstions ot" the kiinl iU'isin^' hctween niitions in respect <»t" the in\ iohdiilitv of national territory iuid the enil)U'in of the nnti(iii;ii| di^nit\', iUid tliose in respect of the chums of indiviil- Uid citi/ens presented by (»ne n.ition for |)erson;il m propei'ty injni'ies ji«i'ainst another, it is hi'oadly iiml well drawn l>y connsel in the case of McIInjih iim! others aji'ainst The rniteij States, before the Mixiil ( 'onniiission nnder the Treatx' of \Vashin;;ton (rciHnil (»f British a;i('nt, \). 5(J7, Appendix No. 7, ")-*), Jis td lows: The (lucstion before this Coininission is not whether Great! Britain has snil'ercd grievance or insult at tiie liands of tliel United (States in the case in whieli rechunation is soiif;lit.l If it were so, it wonld be entirely innmiterial whether tbtj intestate, iSheniian, were a Uritish subject or no, he haviii[,'| been arr(!stcd on liritish soil. The injury to (Ireat Ihitai was by the unlawful invasion of her territory and the takiDg| then(!e by force of a person under the protection of her Iaff>. Whether that ])erson was an American citizen or Britisli subject is of no iin])ortance. She has the same right of com plaint against the IJnited States for the unlawful and wrong I ful arrest of an American citizen upon her soil, and iiisj removal by force from the protection of her laws, as slie| would have for the same treatment of a Uritish subject. But it surely can not be contended that, by reason of siulil injury to the sovereignty of (ireat Britain, Sherman, it' iol fact an American citizen, would have a standing before t!iis| tribunal to make reclamation under the treaty. Jle would have to stand upon his character as a Britisli subject and u] on that only ; and it would be oidy by virtiiel of such national character that he could make reclamationl here. This })articular claim, asa})})ears by the report, i.e. 'Paliameutary Papers, North America, No. 2, 1874. Not tiik nations claims. 85 Ii;it >>( .Mrs. SlR'niiJiii, was imaniiMoiisK- disallowed i\ the ( 'ouiiiiissioncrs. The very »oiiit was daltoiiitely statcil and (Iccidcd i\ liiii'oii l» aiic, tlic iiiii|)irt', ill claims !) 1 and l*.*), ';iiii|il(cll and others r. Spain, under the S|()inisli and lAiii'ricaii ("oininissioii of b'elirnary 12, INTI. Tiic ship Miirif LoirrI/ was under the Anicricaii hii: iiiid on the liij^li seas, duly docniiieiiteaiiist the soN'er- •iunt\ of the United States. The claim was pre- l»(iit((| liy the United States, as claims are presented Ik iv. as one on account (.f the (»wner. Tlie uinpiro says: Tlic umpire can not be leK'itiiniitely (lallod upon to treat this as a case of tlie United States aj^aiiist Spain having for Its (liioct object a suitable reparation for tlie offended dignity III' I heir Hag. Ill such a case the regularity of the capture would con- stitute the principal question to be considered — the per- -oiiaj situation of the owners of the property becoming siili(M(linate. Hut no HHch case of the United States af/ainst Spain has been yir ciiitlil, in the opinion of the umpire, propei'lij he presented III this frihiinal. \\ another place he says that it is — 1 1 relevant under the circiinistanctes of this case to state how far, if at all, the acts of the Spanish forces were uiian- tliorized by international law, and such as to create a claim '111 the i)art of the United States against Spain hi behalf of the oH'oiided sovereignty of their Hag. The claim was therefore dismissed on the g-round rli;ir althonji'h the seizure was outside of the jurisdio- floii of Spain, and on the hi<4-li seas, yet, as it trans- \wvi\ that the o/citers were en-ed in an enter})riso unlawful as against Spain, the United States could in»t recover on their account under the Claims Con- vention. IMAGE EVALUATION TEST TARGET (MT-3) 1.0 ■ 2.2 i IJ5 11.4 11.6 I.I ■so ^^^ it? m ^ U2. 12.0 7] 7 A ••^ '/ >!^ Photographic Sciences Corporation 73 WIST MAIN STRUT WMSTBH.N.Y. 145M (716) S72-4503 ^^^ \ s ^ 86 CONCLUSION ON EFFECT OP DOMICILE AND CITIZENSHIP. CONCLUSK CONCLUSION ON THE QUESTION OF AMERICAN CITl| ZENSHIP AND OWNERSHIP. The spccijh' vUiims cliuiiiaited. Tlie Cooi)er claims: The Grace, Dolphin, An)iaBn\\ and till' Sdjiirard. The AU'xaiuler Frank chiinis: Tlie Alfred Adami liJacli iJiuiiKDid, seized July 11, 1881), and the Libj. The Andrew J. Bechtel claims: The Carohna an Fathjindir. '^I'he Daniel McLean claim: (The larfi'cr) Tr'u(m\i\ The Alexan«ler ]\IcLean claims: The Onward ai Far()ur'ife. The t"ore<;(»in^' ships were all seized in the yeaiJ 18«6, 1.S87, and 18«;>, and appear as follows in tlij schedule of British claims filed at Paris (pp. 1 to inclusive), as referred to this Connnission under tlitl convention as owned and claimed for as folk>ws: 'Y\\(i Cooper claims: As to the Grave, DoJphtn, Anna Heel-, and Saywar(i\ the entire ownership and entire claim for compeiisatidDl for the seizure are in Thomas II. Coo})er. The Alexander Frank claims: As to the Alfred Adams, GuiuvAw, ow'uav, his partncr.l the said Frank, being- e(jually interested with CTUtimnl in the results of the sealiu"- voyage. As to the lilaek Diamond, "registered" owner Morris j Moss. As to the LUji, "registered " owner Moiris Moss. The Andrew J. Bechtel claims: As to the Carolena, the entire ownership in Munsie.l As to the Pathfinder, ownershij) haif in the partner! ship, and a quarter each in the individual membei-jj of the firm of Carne & Munsie. The Daniel i\IcLean claim: As to the larger Triumph, 21 shares in Edgar Crowl liaker; 22 shares in Daniel McLean, and 21 shares| in one Gibson and Blackett. CONCLUSION ON EFFECT OF DOMICILE AND CITIZENSHIP. 87 The Alexander McLean claims: As t<» the Omiard, Charles S})rin}i' as sole owner ^ind claimant. As to the Favourite, Charles Spring as sole owner liiml claimant. Ir appears by the testimony cited in this record Itliiit the United States, under the rij»lit reserved to |tli('iii 1)V the Paris Award and this Convention, in (•(nitradiction of the above schedule as presented at li'aiis, have shown actual ownershij) in American [(itizcns, as of the time of seizure, and the actual |claiiiiants at the time of the Convention, as follows: The Alfred Adams, Ldij, and the lihtvh Dknuoud in |Al('\ander Frank, an American citizen. The (Jurolena and Path finder in whole or in part in A. .1. Mechtel, an American citizen. Tlie Trbr.nph, 22 shares out of 64 in all in Daniel McLean, claimed to be a ])olitical and civil citizen of I the Tnited States, and in any case a civil citizen Iddiniciled in the United States. The Onward and the Favourite one-half in Alex- laiidcr McLean, an American citizen domiciled in the I'liitcd States. It luav be stated in this connection as the rule in siicli cases, to which there have been no exceptions uikUt prior commissions, and as a i)roj)ositi(ai which liiiries its own demonstration, that to entitle that nation to make reclamation for anyone as a person "ill whose behalf Great Britain is entitled to claim (•tnii|tensation from the United States," the burden is iipon that nation to establish at the very outset two tliiii^i's: First, and before all else, that at the time of the Con- niilioii a)id of the presentation of the claim the claimant was under the protection of Great Britain as a citizen, with a lejial domicile in the dominions of that nation or not in the United States; 1 It |i ! 88 CONCLUSION ON EFFECT OF DOMICILE AND CITIZENSHIP. CONCLUSK And second, it must ulso be established that at the time of tlie iiijuiy of wliich compUiint is made the person wps under tlie i)roteetion of Great Britain as a citizen, and domiciled within her dominions, or not in the United States, or, as the equivalent of domicile and citizenshi]), was on board a ship, as one of the ther Commissions, at the time of the jn-esentation of tlw claitn), 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 tf» say absurdity, of Great Britain's ])osition as to Cotiper is manifest. A resident and a civil citizen of the United States since 18r)4, with the courts open to him as to an American native-l)orn citizen, enjoying the })rotection of its laws, without returning t<» his country of original citizenship to present tin's claim, he remains a citizen of the United States, and instead of appeal- ing for relief for his alleged wrongs to that Govera- ment, (n* its courts, he invokes a foreign nation to aid him in recovering from the United States. The rule is undoubted and universally acknowl- edged that the recourse of a domiciled ))er8on for injuries against the Government of his domicile is in CONCLUSION ON EFFECT OF DOMICILE AND CITIZENSHIP, I till' roiirts of that eoimtiy. The principle is stated ill Wharton as appHed in our rehitions with Great l^ritiiiii: A t;itizen of the United States residiug in Canada, whose property there situatti iias been destroyed and piUaged by IJritisli troops, must iirst seeic redress from the tribunals of the country under whose laws he has settled. (2 Whart. Dig., sec. 241, and see sec. 226.) Kcuworthy's Case, Mixed Commission, 1853; Iliilly L't al. Conmiission, 1871; see 6 Papers, etc., Wiisliiiifi'ton, pp. 19-20; Anderson's Case, id. ; Boyd's Ciisc, Mritisli Agent's Report, p. 12. As lieretofore seen in such cases, there can be no liTound for intervention by tlie country of original allegiance unless there be discrimination as against the person because of his political nationality as be- tween him and citizens of the country of his domicile. It appears by the authorities hereinbefore cited on the sul)ject of domicile that the ])resumption is that a citizeu of a country has his residence and legal dom- icile in the country of his political citizenship, and that the burden to establish domicile in any other (ountr}' is u})on the person alleging it. The burden may he at once shifted by showing actual residence, lis lias Ijeen seen, but if there be anything in the IMtiiit made in the opj)Osing argument as to Frank, the McLeans, and Bechtel on their alleged domicile ill Great Britain against the contention of the United States to the contrary as heretofore ])resented, then the burden would certainly be upon Great Britain to establish the fact of domicile conclusively. *>ii the record there is no pretense of the proof of Frank's domicile in Victoria. There is no such thing ii>* a domicile for purposes of trade without residence, Ivesidcnce and home is the STipreme test of domicile. fllalleck, Ch. XXIX, sec. 13 "(Am. Ed.), and cases. iliillimore-Domicile, sees. 221, 224, 25G, 258.) 89 ty : I Si f I i 'i 90 CONCLUSION ON EFFECT OF DOMICILE AND CITIZENSHIP. ( ONCLl 1 It ai)[)e.n*s that lie was a partner of Gutmaii, but there is no proof whatever that he was a resident of Victoria, as lie was not. (Record, 1093, line 50.) (}. In November, 188S, were you a reaideut of Victoria? A. I believe 1 was; am not quite positive about the time. 1 went to San Francisco eitlier tlie latter part of 1888 or early part oi" 1889, and I stayed there several months. This is all there is beariii*^ on residence. Ap})ended hereto, (page — ) entitled "Appendix 2," is presented all the testimony in the record, and even item of it bearing upon the citizenshij) or residence of Alexander Frank, Andrew J. Bechtel, Daniel Mc- Lean, Alexander McLean, and Thomas H. Cooper. As to Bechtel, there is no conclusion upon his tes- timony, because he contradicts himself directly by his several oaths, and is shown hereafter under the head, "Carolena," to be unworthy of credit. Falsus in Urn, falsus in (mutihus. His hotel business is no evidence of domicile. See authorities supra i)rox. In an affi- davit he has sworn that he was at one time a resident of California, and afterwards, in an affidavit, as in his tesii- mony here, covering- the ])eriod of his affidavit in Cali- fornia, he swears that he 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 evi- dence here. From the witnessbox at Victoria, through- ^pendix 2.^* ^^^ ^^^^ examination, he was dumb on the (juestion of his residence in California; while Munsie testifies to the time when Bechtel was living in California, in cor- roboration of the admission by affidavit. His owner- sliij) of real estate is no evidence of domicile. (Sir W. Scott in The Dree Gchroeders, 4 Rob., p. 235.) There is no evidence that either Frank or Bechtel were domiciled in Great Britain at the time of the Conventioi. Daniel McLean, as appears by the record, became a nat- uralized 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. (ONCLl ION ON EFFECT OF DOMICILE AND CITIZENSHIP. 91 lie could not HUiTeiuler tliat citizeiiHliii) and retuni to Ills alle<»iaiice to Great liritaiu exc'('})t as pro- vi«l(il in tliat treaty, and liis form of" l>e(',oniin<>" natu- iiili/('(l ill Gr(^at Britain on ()ctol>er l(i, 1H8(I, was im-lVt'ctive. Tliere is not a word as to liis residence in Victoria ill the record, ])nt there is a statement of his resi- dence in San Francisco in l)sn2, and the testimony of Lidty tliat Daniel McLean ajipeared at Victoria ***^'' '**9' ill 1.SS3 as one of the crew of the American vessel the Citii of Salt lUcfio. Sc..App.2. As to Alexander McLean's American citizenship tlicre is no (juestion : and while the testimony as to liiiii is'tlie stroimest in the record as to anv residence ill \'ictoria at the time of the seizure of the ships he was interested in, there is no <]uestion whatever that tor (I hui<>' time prior to tlie Convention, at its date, !iii(l ever since he has had his domicile in the city of San Francisco. < )n the question of burden of proof to establish the ichition to a person which would enable Great lirit- aiii to niake ieclamation, it is settled by the decisions uii(h'r all the Commissions heretofore referred to.* It follows, that if Great Britain shall sliift fnun the ;in»iind heretofore taken, that ownership in that nation's pnhtical subjects is concluded by showing a ship's reg-- istcr, and now claim the ri<»ht to protect American citi/cciis as aj^ainst their own country because of their (hniiicile (a |)ro[)osition never heard of before except in tlie aroument here), the change should start from the postulate as to them, that their domicile by resi- (k'licc has been conclusively shown, both at the time ttf the seizure, and at the time of the treaty and pre- sontjilion of the claims. The (|uestion remains as to the eflfect of part own- cisliip by au American citizen with a British subject. " Se argument— citation of Sir Roiindell Palmer, papers, etc. Treaty ofWasliington, vol. 3, p. 25, last paragraph cited. Ll! 92 CONCLUSION ON EFFECT OF DOMICILE AND CITIZENSHIP. If joint owners or partners, the wliole claim nuist fail beyond (juestion. A recovery can not in such case be liad for a nioietv by tlie 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 aud for some purposes by domicile in the United States. Xo other mode occurs to me, nor do I now perceive the authority of an officer of tiiis Government, except in virtue of a treaty Mr.Fisb Sec. ^^' other positive legislation, to bring a new subject withiu of state, the sphere of its obligations. Least of all can I discern auy to Mr. De faculty in a private citizen to spread the protection of liis Inst la- f^overnment over a third person by adopting him as a part- ' ner in a. commercial establishment in foreign parts. COMPENSi pan. Whatever the rule, however, on this subject, the United States desires to urect of the shares in the former held by Mr. liaker and his associates, who were British subjects, and in respect of the interest in the On- ivard owned l)y Mr. Spring, who was also a British subject. If it should seem to the Connnissioners 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. S>io the contiu DAMAGES — PROSPECTIVE CATCH. 98 COMPENSATION, OR THE MEASURE OF DAMAGES. I'lidoi- this head it i.s jn'oposed first to t'onsider the ([Ucstiou of J'r«ttHs of ]i( rsoiial })roj)erty, is, tliat tlie i)arty de^jrived of it or iil);in(hniin}j;' it to tiie converter may iinniediately suj)- jily its jdaoe in the market witli its money value if lie sees fit; and therefore his measure of ree(>very is limited to the value of the ju'operty lost. The following- propositions are maintained under the present convention: {(hie) ; The claim for prospective catch is settled advei'sely to (Jreat JJritain by what has been seen is conven- tional or ])ositive international law, fixed and binding' oil both nations, viz., a decision of the precise question on analogous facts by the adjudication of the Tribu- nal of Arbitration at Geneva. {Two) The claim for prosi)ective catch, prospective prof- its, and the like, in cases of manne torts or captures i»n the high seas, however tortious, has never been allowed by any tribunal or court administering^ inter- national law, or by any authoritative judicial judg- ment of either country, whether administering inter- national or the municipal common law. And of these in their order. Sic the contiugeucies and uncertainties of pelagic sealing, p. \~1, infra. 94 DAMAGES — PROSPECTIVE CATCH. {ONI':.) Tlic Jinlf/iHt'nt (if Genent. liy the treaty of \Vasliiii8es 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 aj)})arent that, as to the rule of damages, tlie arbitrators were bound by the })rinci})les of inter- national law, and that their decision upon that ques- tion must be held to be the international law as between these nations, according to the authorities cited in this argument at page 20, .sujira et seq. That rule is bindinK- under this Convention un- less — ((() the position taken in the British argument (p. 25, fol. 20) be correct, that the Tribunal did not reall}' decide against the princiide of ])rospective profits; or (//) 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 connnitted l)y Great Britain with her own cruisers. (a) A somewhat remarkable statement is found in tiie British argument ([). 25, fol. 20), as follows: A reference to the i)roceeding8 before the Geneva Arbitra- tion will show tliat as a matter of fact, although this general DAMAGES PKOSPECTIVE CATCH. 95 proposition was laid down in the award, /( unn in lieu of lifitspictire proJiU ir per cent of the value of the vessel and outfit in lit'ii of i)rospective cateh, this sum amounting? in that case to s!l,SS,000. This is i\ strikint; error. .Vttcr a vory iull inul most exhaustive , li-1'2 — hut ten (hiys before the first formal ruling- ag-ainst pnispective ])rolits — tlie arl)itrators re(piested the coiiiisi'l for the United States to present tables of the rhiinis of the United States, and then hi those tables, MS stated, "In acconlance with the suggestions of some lit' the arbitrators (the counsel say), we have elimi- iiiitcd from the tables the claims submitted in favor of whaling' vessels for the prospective catch, the amount of wliich would be 84^01 )n,3()2.;")0;" and it apjjears that those claims were so eliminated for the purposes of the tables for the use of the arbitrators, althoug-h not wholly withdrawn. (Si'c Papers, Treaty of Washington, Vol. Ill, pp. 579-580, and attached tables under head Shenandoah, [I]). (i(»-_M)09.) In Protocol XXVII (Id., Vol. IV, p. 43) the arbitra- tors made their lirst ruling ag-ainst [)rospective profits Auiiiist 21), 1872. Now, in Protocol XXIX, by which the British argu- iiiciit, liere, states, as al)ove (pioted, "it will ajjpear that the award was finally made uj) on the basis of allowing :i Slim e(pial to 25 ])er cent, etc., in lieu of prosjiective tiitch," it a])pears as a matter of fact, and as stated in the protocol itself, that the only figures ])resent(Ml was Hot an award or a finding at all, "but that ^l. Staempfli, :is uiu' of the arl)itrators, presented to the Tribunal ,.o|)i('s of the syn<>ptical table which he had i)re})ared as ,i jiioposition for the determination of a sum in gross." 96 DAMAGES PKOSI'ECTIVE CATCH. We will Mt'o directly how tlint arhitnitor canu' tn |nit in the item " pj'ospective profits aiid interruptidii ot" voysi^e" ill this his own mere perstnal siio'^^rfstion to the 'iiMlmnal. lint its iippi'ars l)y the same protocol (XXIX) tlic arbitrator for (Jreat iiritain, Sir Alexander Cockhuni. promptly attacked the item in (piestitui, sayinji': M. Htaeinpiii has nlso added, for some unknown reason, 26 JUT cent on the values of tlie whalers, an addition wliidi can be easily shown to be equivalent to altogether allowiiij;, over and above the original value of the whalers and tlii-ii outfits, a perceiita^'e exeteding W per cent, and this although the ijuestion of interest is left oi>en to the decision of tbi- Tribunal. Tiiis all occm-red on Sr/jtriiihcr :^, 1S7:^ — seven days before the award of the arbitrators. (Vol. IV, id, pp. 44 to 47.) The award was finally agreed to and adopted, as a})pears by Protocol XXXI, on Sepfvttihcr ff, 1- ar^nment) so vig'oronsly and successfully contested by the arbitrator for Great Britain. The error of M. StaeTn^jfli 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- proval of the Tribunal. DAMA0K8 FUOSPECTIVK CATCH. 97 It i-i a inatttT «>t" no importsincc licrc, 1ml it is ap- imrciit that in inakinj^* his sun M. Stacniptli WHS iiiishMl ill assuniinj'" tliat (Jri'at liiitain Iwul nia«lo ;iii mhnissioii in their case t<> the t'ttcct set out in liis iii(iiiitrjni(hnn sn^i-jiestitMi. 'I'hns: At pa^i'e 1()0!> ot" the hritish poiniter case an«l e\i- (Iciicc, fifth jtarajirapli, it was siioM.('ste(l as to the irlidHiif/ rrsuc/s (in re^i'ard to which on/_i/ any ' ini {'or |iros|M'ctive ' atcli was made l)y tlie I'nited State-;) ilijit iiiteivsi at tlie rate of " 'J.j p'-r rrnf pi r amnnn oii til jihie of each sliij» and onttit, and in addition 5 (•cuts per ton per prr (('lit jicr (iHituui hiictcsi for the limited time, wliicli had been suii- tiii incut as above it is submitted that it has been demonstrated that the IJeneva Arbitration did decide that ])rospective tits should not be allowed. Indeed, it is ai)i)arent jiru tliat, after u very exhaustive examination of the 'itM'isicMis, made by both sides in tu.^ argument, the L'liitcd States substantially abandoned the claim. ri;iim for ])rospective catch or jn'ospective profits was made only for the forty-one whalers destroyed "i" ciiptured, for the most part, by the Shenandoah. B s 7 98 DAMAGES — PROSPECTIVE CATCH. It appeared tluit these vessels were taken on tlie wliaUno- oroiuids, many ot" them with captured wliales actuallv aloimside; all of them suecesstullv eno'ayed, and all with more or less bone and oil on board, with every ho[)e of a large catch. It api)eared, too, that substantially the same evi- dence as to the fishin<^' <>Toun(ls was presented under the claim for pi-ospective <'}itch as presented hero, includinj^- the evidence that masters and crews lind their "lavs" or shares in the vova<>'es. Vol. Ill, Papers, Treat}^ of Washington, pp. 253- 254; 2 Id., 3.S4, and specific evidence of ])rol)able catch and estimates. "Am. (^laims." l*araj)hrasin<>" the British ar<>'ument at pajj-e 2'), fol, 40, as to seals: The rcsscfs frnr found oh flic whalhiii (jroiDxls, iv'ifh ciwri/ appJiaiive for caichin;) irhales ; tin' irludfs were there to he <:(iii(jhf. (r) It is not apparent from the learnin**- 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 neglig'ence or of direct action. For the most part, sudi 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 Nam>/ (3 Wheaton, p. 5 16) was a case of capture, of which Mr. Justice Storj', in delivering the opinion of the court, said: "Upon these facts disclosed, this must be pro- nounced a case of gross and wanton outrage, witliont any just provocation or excuse." But the court held that "the probable or possible benefits of " voyage can never offer a safe rule by which to estimate uam- ages in cases of a marine trespass." his IS ai DAMAGES — PKOSPECTIVE CATCH. 99 But it is stated in tlie ()])p()8iiig arg-uineiit (p. 25, tol. 30): A radical distinction exists between the Alabama case and tiie present. In the case of the Alabama it was not anilended tliat it was the design of the British Government to ciiuse the loss which ensned, nor was snch loss the direct result of the negligence with wJiich they were charged. riiis is answered tioni the Hritish argument here, itself (piotinjy- the positions of tlie United States aiiJiiust (Ireat Ih'itain (p. 21, fol. 10 ct scf/.'). 'Vhv charj^'e of the United States before tlie Geneva Tribunal was considered by Her Majesty's Govern- iiiciit as "a «'haro"e of injurions neg'li<>'ence." (Brit. ('use, Vol. 1, l*apers, Treaty of Washington, ]>. 412.) it was contended on the part <»f the United Slates that the acts of Great liritain were of a character by •'actual or constructive complicity with the Confed- erates winch gave the same rights against her as (beat Britain asserted bv war against the Nether- lauds." (T,!., Vol. Ill, p.' 218, and see id., pp. 21!)- L>-_'( 1-222-228.) The whole argument of the United States, from beginning to the end of the Geneva Tribunal, was to establish these proi)Ositions, as against Great Britain, by the acts of cruisers for which damages were awarded: The default'5 charged, and as we think, the defaults proved, are grave, serious, capital. * * « If you destroj'^ my ship, my house, or my horse, bj' culpa- ble eiirelessness, it is no answer to say that you might have been more careless, nay, that you might have acted with del i berate malice. If there be responsible wrong, whether it l)e the greatest possible wrong or a degree less than the groiitest possible, still the indemnity follows as a legitimate and just consequence. ^!:'ch, indeed, is the tenor of the treaty, which attaches res])oii8ibility to mere want of " due diligence," and does not reiiuire that Great Britain should have been guilty of the utmost conceivable degree of willful negligence which could by jiossibility be committed by any Government. I.I., p. 220. 100 DAMAGES — PROSPECTIVE CATCH. Ao-rtin: Id., p. 223. Sucli is tUe 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. (ieneva Tribunal tort l)v the found Great following' language of Britain the And the guilty of a award: And whereas the circumstances out of which the facts con- stituting the subject-matter of the present controversy arose were of a nature to call for the exercise on the part of Tier Britannic Majesty's Government of all possible solicitude for the observance of the rights and duties involved in the proc- lamation of neutrality issued by Her Majesty on the 13th day of May, 18i)posing argument. It sluRdd 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 deten- tion. Cases of warning will be treated separately. The leading cases are cited as follows: The Eng- Hsh case of the Columbus (2 W. Robinson, p. 158, iiifni); the American case of the Lively (Gallison, }). 315, infra). In the case of The Amiable Xancy, 3 Wlieaton, p. 34(): The probable or possible benetits of a voyage as yet in fieri can never aftbrd a safe rule by which to estimate dam- ages in cases of a marine trespass. There is so mach uncer- tainty in the rule itself, so many contingencies which may vary or extinguish its application, and so many difiQculties in sustaining its legal correctness, that the court can not believe it proper to entertain it. The Amistad de Rues (5 Wheaton, p. 385) : III cases o( marine torts this court has deliberately settled tliat the probable profits of a voyage are not a tit mode for the ascertainment of damages. It is considered that the rule is too u»" 3rtain in its own nature and too limited in its applicability o entitle it to judicial sanction. 101 102 DAMAGES — PROSPECTIVE CATCH. In tlio liritisli (Nmiiter f'ase, Geneva Arbitration (pp. 9110, !)91), we find this statement oftlie law: When oiK-e the liability to i'oiiii)ensation for a given loss is established, such compensation is to be estimated in ac('oidan(!(' witli the well recognized \*T\uci\)\c o\' rcntitutio in inti'dnoii, subject, however, to those considerations as to the damages not being of too remote, contingent, or speculative a charactei', which, being common to the Jurisprudence of all civilized nations, are adoi)ted ])y international law, and seem to us therefore properly api)licable to the present question. It is on this i)riiu;iple, limited by these considerations, that the courts of common law and of admiralty, as well as the prize com s, both in I'^ngland and America, have awardeJl damages (.7 cuscs of rolUfiion, capture, and others of a like naiure. Tiius, in the case of the Amntia (.j New Reports, 104), Dr. Lushingtctn, 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 tlie situation of the wrong- doer, according to all ordinary princii>les of justice the party injured ought to receive full aiul entire indemnity for bis loss. This is a principle of common Justice. It is undoubtedly the rule origiinilly prevailing in all these cases, and is techni(!ally styled rentitutio i)i 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 Clijde (Swabey K., 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 (iazelle, 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."* *Tlu8 watt a case of dotentioii, not total loss; see opinions of three justices, incliuling Taney, C. .1.. laying down the rule of the text and disseuting because not applied to a case of detention preciselj' as to a total loss. !'• I DAMAGES — PROSPECTIVE CATCH, 103 Dr. (-*» On the other hand that general rule is limited by the coii- sidcijitions above referred to. Thus, in the Colitmhus (2 W. llobiiisou, 1.58), Dr. Lushingtou said: "It has been argued that the i>rinciple upon which this iMiiut i>rot'eods in all matters of this kind is restitutio in iiitc- finiiii : in other words, the principle of replacing the party who lias received the damage in the same position in which lie would have been provided the collision had not occurred. As a .general proposition, undoubtedly the j)riuciple in ques- tion is correctly stated, and not oidy in this court but in all ntlicr courts 1 ai)prehend the general rule of Ijiw is that wlicic an injury is committed by one individual to another, cither by himself or his servant, for whose acts the law iiialu's him responsible, the party receiving the injury is ciitillcd to an indemnity for the same. IJut although this is till' general ])rinciple of law all courts have found it neces- siuy to adoi)t certain rules for the apidication of it, and it is utterly impossible in all the various cases that may arise tliat 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 efl'eet in uU cases of this kind of giving anything beyond tlie full value of the vessel destroyed. Supposing, for in- stance, that this vessel had been an East ludiaman bound on lier outward voyage to the East Indies with a valuable cai}j;o on board, for the transjwrtation of which not only would the owners be entitled to a large amount of freight, but the nil' ^ • must be entitled to considerable contingent profits Iroin allowances made to him upon such a voyage. Could this court take upon itself to decide upon the aujount of these contiiigencies, and to decree the payment of the same ill addition to the payment of the full value of the shii)? 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 indeninity to them for all that may ave happened, without entering for a moment into any other cofisideration. If the ininciple to the contrary contended for by the owners of the smack in this case were once admitted, I see no limit in this aitplication to the difficulties which would be imposed upon the court. It would extend to almost endless ramiticatious, aud in every case I might be called upon to determine not only tlie value of the ship but the x)roflt8 to be derived on n' t li; ; i 104 DAMAGES PROSPECTIVE CATCH. tbe voyage in which she might be engaged ; and, indeed, even to those of the return voyage, wiiich 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 i)rincii)le of reHtitutk in itttrgriim is laid down by Mr. Justice Story in several reported cases, as, for insta"ce, in the case of the Lively (I Gallison,.'Jir)), where that most eminent American Judge said, in reference to damages for loss of cargo: " Tpon 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. * * ♦ j am satisfied upon principle that an .allowance of damages ui)on the basis of a calculation of profits is inadmissible. The rule wouldbe in the highestdegree unfavorable to theinterests of the community; the subject would be involved in. utter uncertainty. "The calculation would proceed upon contingencies, ami would require a knowledge of foreign markets to an exact- ness in point of time and value which would sometimes pre sent 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 fac^s. 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 Sln})})ing', Vol. I, p. 538, and Sedgwick on Damages, ]>. 70. The reason ot" the rule against allowing prospec- tive catch t)r ])robal)le 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 tliose elements of uncertainty, remotei.v-ss, and difticulty which would undoubtedly lead the courts, both in America and in England, to reject the claims altogether.* ' See subsequent head ou Contingencies of sealing, p. 177, this argument, m^^mm DAMAGES — PROSPECTIVE CATCH. DecisioHS of ntlter interfudioiial tribunals. Ill tlio year 1867 an especially hard case occuiTed. It Wiis called in the diplomatic correspondeiu'e "an (intrii>ir Edward made his award on July 11, 1870, by wliich he found the following facts: The Canada grounded on a reef of rocks within l^iazilian jurisdiction. The proper means w^ere used b}' her captain and crew with every prospect of suc- 105 " Dispatch of Secretary Fish to Mr. Blow communicated to the min- ister for foreign affairs, December 28, 1869. 106 DAMAGES — PROSPECTIVE CATCH. cess to j>et her oft", and on December 1 a Brazil! an An That slie wonhl iii tact have been sa\('(l l)iit tor tliis improper iutertereuce, and tliat she was lost thronji'li the intert'ei'ence. lOvidence was introdnced as to the possible iuid prospective catch it' she had ])een j)ermitted to jn-oceod Hlmiud on 1 ler voyaw The amonnt ot" the prospective catch was den 1011- strated bN' her own )revion s catches and by tli The result V otlicer with 14 armed men boarded lier, superseded ||/inl I'.iilield o lie tollowin the further prosecution of their efl'orts to save the HuhI I'or. State Asicsimls the if shijis over aii< 1111(1 i>f the mast Kiiinl .ire advise The claims pre allies of the vi iii;inl, or were a he owners ibr h Uty. 1111(1 compe llos's of their emii A t'luther ques [owners iire entitl vessel and carg( Itliiit if they hai |iiii,<;lit have cout: [a prosperous tra jOiie gentleman i pated profits of iliiim it indirect Ihave estimated whether in the (luite inadmissil Tiie principle very clearly laici X'ohiiiiliiiN, repor [ease of a fishit utterly lost, and the smack havii £8!) for wages i nwatir projit w emplojiment of 1 ilaiiu, saying, total loss you c at the time of t iiulemnity to hi und yoH never V' vliat might havi Indrentitre of th * Sec aiialysia ti 1 1 utch litit'ore the c catches of other whalers for the same season. '^riie distin<4'uished arbitrator of course held Brazil liable for the full value of the loss so intlicted on the citizens of the United States, and that a full com- pensation and indemnity became actually due fr the moment of the loss; bait on the question of pr pective catcli, the arbitrator, in ruling against it, uses '0111 •os- this 1 fniofuaoe 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. 00, 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 beine by the forces of German}' in 1871, in behalf of her subjects, the owners. The (daims were first audited and examined (as these should have been) authori- tatively by the British Government, and for this pur- pose 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. Rother3^ DAMAGES — PROSPECTIVE CATCH. 107 Lilian ■ Tlic result was roportotl by Sir Louis Mallet to •wled ll.uid KiilieM ou A])ril If), 1.S71. 'iited I Tlie fnlloNviuo- is au extract from that report (Brit. '' till' |„„| For. State'J'apers, 1S70-1, Vol. 61, j))). r)!»l-6()7): ^ As icgiuds the claims of the owners for h)ss of emi)loyinent It for H,! slii]is over and above the claims for valne of the sliips, Idst Biiitl I't the masters and crews for loss of employment, the i);ii(l lire advised that tliey mnst be rejected as nntenable. The claims preferred may be said generally to include the lines of the vessels, and of the cargoes which were on iiciid, or were about to bo put ou board, com|)ensation to he Dwiiers for having been forcibly deprived of their i)rop- [t'lty. and compensation to the master and seamen for the loss of tlieii' employments (p. GOO). \ fiirtlier question seems to have been raised whether the (nvnt'is are entitled to anything beyond the full value of the vessel and cargo, the restitutio in iiitejjrum, on the ground that if tliey had not been deprived of their vessels they iiii,L;lit have continued for some months or years to carry on II prosperous trade and have realized large profits therefrom. One gentleman claims specifically on this grouud the antici- pated i)rortts of several subsequent voyages, and all of them tliiiiii it indirectly in the extravagant amounts at which they have estimated the vjilues of their vessels; but the claim, wlietlior in the one shape or the other, seems to me to be (liiite inadmissible. The principle which governs cases of this description was very clearly laid down by Dr. Lushington in the case of the CdliiiithiiN, reported in 6 Notes of Oases (p. 071). It was the ease of n lishimj 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 suiqjort, a sum of t8!» for wages and victualing, and £75 for twelve months' uremijv profit which icoiild have accrued to him from the usual emplojiment of his smack. But Dr. Lushington rejected the elaim, saying, "I take the rule to be this: In the case of a total loss you calculate the value of the property destroyed at tlie time of the loss and pay it to the individual as a full iiuleinuity to him for all that may have happened to him, (ind ijon never can, by possibility, enter into an examination of ii^lKit might have been gained, or, on the other hand, lost by an (I'lreutit're of this A;t»ei." ' i^ou analysis this case infra, shonring evidence of average profits of I 'Htclt before the court on this question. \.\ I ! ■ ' ■ ! 108 DAMAGES — PROSPECTIVE CATCH. And the reason is obvious, for no one can say with cer- tainty whether in any future adventure, for which there in m cxpreHN contract, the shipowner will make a profit, nor what I that profit will be. //' there is an erpresH contract for the ]m\ of the ship, you can no donbt eHtimateaiq)ro.rimatehi thc]iroj\h\ of the voyage, Imt if there is no nuch contract you can notdoHoA and the adventure, instead of {living a profit, may result in a| heavy loss. Iv tlie case of the JliaiidflKi botore tlie liritish and AnuM-icMU Mixed Conunission of" May, 1H71 (p. 91, lirit. Aji'ent's Keporr), tlie same priiu'ii)le was affirmed ill tlie case oi' elaiiiis for losses of profits and the fail- ure to realize coinniissioiis on sales dej)eiidiiij»" updiii the safe arrival of the ship. ■^riie case of the Washinf/tou before the Mixed Com- iiiissiou of 18r)3 was in every respect analogous to I the present case. Great liritain claimed iurisdiction over the liayotl Fnndy 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 WashiH()ton was made on the hijjli seas. The ship was owned by American citizens, and" was under the American flag. It was therefore a case of seizure in principle pre- cisely like the case here. She had been condemned I 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 S3, 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. Of her aitthoritir.s from the courts. In tlu' Apollon (1> Wheaton, 362), Mr. Justice M(ii\, delivering the opinion of tlie court, said (p. nil): This court on various occnsious has expressed its decided jDpiiiion that the probable jjrofits of a voya{>:e, either upon khip or (;argo, can not furnish any just basis for the coui])uta- [ioii of (lainajjes in cases of ni.arine tort. * • • Wben the vessel and cargo are lost or destroyed, the just [iieiisuro lias been deemed to be their actual value, together vitli interest upon the amount from the time of the tres- |)ilSS. * * * And it may be truly said that if these rules do not furnish complete indemnification in all cases they have so much bertaiiity in their application * • * that they are entitled ([osoiiH! conuiiendation upon principles of public policy. Sccidso Smith v. C(>n(h'ev, 1 IIow., 2S ; Vauglian [mil 'iVlefrrajdi, 14 Wall., 258 ; Del. Co. v. Arnold, 1 )iill.. a.'}3 ; Tlic A mm Maria, 2 Wheat., 327. Wood's Jliiyiic on Damages, cited in the British arf>unient (1st American Ed. from 3d English edition, )). 5(5) f>;iys ; In {•('iieral, however, injuries to property, where unaccom- Itiinied by malice, and especially where they take place under vfawkd r if/lit, are only visited with damages proportionate [0 tlie actual pecuniary loss sustained. (Grand Tower Co. v. f'hilliiis, !>;{ Wall., 471; Owen v. Routh, 14 (J. B., 327.) And in I Sutherland on Damages, 173: The value of the property constitutes the measure or an ^lenient of damages in a great variety of cases both of tort [iiid contract; and where there are no such aggravations as for or justify exemplary damages, in actions in which feuch damages are recoverable, the value is ascertained and fidoptcMl as the measure of compensation for being deprived 1 the property, the same in actions of tort as in actions upon Ntnut. In both cases the value is the legal and fixed meas- ure of damages, and not discretionary with the jury. Sw> the City of Pekin (15 App. Cas. H. L., 438), Miich was a case of partial loss; The Falcon (19 fVall, 75); The Atlas (93 U. S., 302). 109 110 DAMAGES — PROSPECTIVE CATCH. It results tlijit tlie decisions of intenuttional coiiits and of courts of hotli countries, are, witliout oxc('|h tion, in direct contiict with the jxtsition taken in flu o|»|)osinji' argument, in every case where the sliii of th(^ <-hiiniant is h>st to liim hy tort, either In (hvstrtiction, capture, or the ahanniiient by tin owner to coufh-nniation )»roceedin;>s, or to the cajitdr, or in any otlier case of actual h»ss of the proiM-r Cases of (h'tention, and possibly >>\' warnin<^s, stiiml upon a diti'erent footinji', and in ich cases, both nl (contract and tort, daina<^es in the n rure of deiruirnifa'l are always allowed, and in some cases where a loss In the detention can l)e shown (piond (piantuni witli nr- tu'nitji, soniethiny- ni(>re than the ordinary deiuurniw d may he allowed; ncNcr even n> such case on sjkm lati cl ,'h tl ve evidence wiiere there are contniiiencies lances. It is now pro])osed to analyze the cases cited in tk Biitlsli ai()utuent from paijes .'Jl to ii4: (1) -.• I Pcahe (jt. :J70): The action was like ihat of con- spiracy to injure trade. It was a willful and malicious tort, fi»r 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 action- able />e/- se and not actionable without an averment of special damages. The case is not in point, and besides its citatiou here is distinctly noti sequitur, as the amount of dam- ages, or whether profits were allowed, does not appear, the parties having agi'eed to refer the amount to arbi tration. * See page 116, this argument. Tlir h'lsohif ill) It was Wiis ;i suit foi iiijikin;'' repaii (l>) The sn ciiiiicrs, iind i {(■) It does lilt' ciitch was iv^iisti'iir and IH'oots ;i i\ CO tiiill ut costs ( {>!) The cji never trcat( d m ill jiny Hri Wiis icndered (h. K. Dig. to {r) Moreov 10!!)— an aj)) nf The Jliso/it licld that a ^ the owners cl loss of marke 1r' coiisiderec -failles HaniK 1(15-118), w consignee co market, as tl ter of specul haiiil) v. Wal hum, C. J., di ho recoverec huihliiig. The last mlecl on this DAMAGES — PROSPECTIVE CATCH. Ill (2) Tlir llisohifo (H r. ])., p. 110): ('0 It \V!is not SI ('{180 of loss of the vessel, ])iit u;is ;i suit tor (Innuijjfes for delay or detention while iiiiikiii^i- re|)airs rendered necessary by the tort. (h) I'lu; snit aj)[)ears to have been between tor- (■i;;iiers, and n(iver to have been appealed. (r) It does not appear that the point as to proba- lilc cjitch was made in the case when r<'porte(l l.y the nji'istrar and merchants, but the det'eiulants went to )iriM)t's ji ,d contested, the point f the registrar allowed €72 for the earnings of the smack for fonr weeks — the season's fishing. The claim was not objected to, and the case was not in conrt on the })oint of allowance of pros- ])ective profits, but was re])orted to the c«un't on the (piestion of costs only, "^rhe case was never a])j)cale(l. (^) lite Arf/enfi}(o (14 A\)\). Cas., ]). olO): This was nut a case of total loss. The Anfentino was ]»rocce(liiij;' on a vi.yage to Seva,sto[)ol, an'ed her caryo at Sevastojjol she shonld proceed to Antwerp, and load for another vova}>e. \W reasim of the collision she w^as ])revented from fulfilling the contract for the second voyage. Lord Ilerschel 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. lis such an engiigemeiit, the loss of the earnings on such an advtMiture appears to me to be the direct and natural con- seiiiieucc of such a collision. Wliere no claim is made in respect of loss arising from the owner having been deprived of the earnings on the voyiijjc which was in contemplation, an engagement for which had licen secured, it would he right, and is no doubt the usual course, to award damages under the vxme of demur- rage, etc. (See this very exception to tl;c goni'val rule, i. e., a case of "Express contract for the hire of the ship," noted by i)i'. Lushiugton in the case of The (Joiumbus, as quoted, supra.) Fiirtlier comment seems unnecessary. (6) Tlie case of Phillips v. London and N. W. R. R. (5 ('. 1'. 1)., 280) was an action for personal injuries and tor piiin and suffering-, by a passeng-er on a railroad train. He w^s ?> surgeon in active practice, and it was the ordinary case, g-overned by its own rules, tor siK'li damages, including", of course, loss of earn- iiiii' power directly traceable to the accident, as a jury iui<>lit see fit to giv^ under the evidei\ce. Cases for tlk' pliysical injury of [)ersons are, of course, governed 1)\' a rule as lo damages entirely distinct from those of iiijuric s to property or property rights. (6) 'llic Fortune Bay cases: There are some unfortunate omissions in the statement of facts in this citation wliich will be supplied. The claim was for >^12(),000, and while, as stated, ''tlicio were but four vessels out of the fleet of twenty- two actually fishing," it appeared that those four vessels tfoc liandling the seines in behalf of and for th& benefit '[f flic odire fleet of twenty-two. It further a])peared, and was proved incoutestably, B s 8 114 DAMAGES — I'ROSrECTIVE CATCH. tliiit ill the seiiu's - in vol. 72, Brit. State Tap^-s, 1S8(), 1881, i)articularly at pp. 1282, 128i), i;}()7, and with the f(dlo\vin<>- (pu)ted from that record: The evidence ir. this ca.se shows tliat the catch which the United States iishing lleet on tliis occasion actually realizod was exceptionally hirji'c, and would have supjilied in-ofitable cargoes foi' all of them (p. 12S{)). Moreover, it was admitted in terms by (xreat Britain as a matter of fact that beyond any contiii- n'ency or speculation if the American vessels had not been distin'))ed they would have filled every one of the vessels. So that we nnist differ from the conclusion of tlw British ar<>ument here, on this citation, that the set- tlement by the ])ayment of a luni]) sum "im})lied the consent of both nations in the })rinciple involved iii tlie claim for catch." If the })rinciple of prospective catch should ever DAMAGES PROSPECTIVE CATCH. lie ((lUccdcMl at all in rases where the owner suf- icis ;i total loss of the earnin'ives inter- est, which the l)ooks invariably speak ot" as the com- pensation g-iven in lieu of prospective profits, which ran not be allowed. A moment's reflection will be convincing thai if the theory of future profits is correct at all it can not he a matter of a season or a year, but nuist find tor its commencement and end the principle that the iiwm r, having h^st the earning instrument, he shoidd he entitled to what it would have earned him to date, ;is tor instance in the case of tort for a continuing iiiiisiiiice. The remaining proposition of the British argument ill siip}»ort of the claim for ])rosj)ective profits, resting mi cises like that of Allison iK Chandler (11 ^Mich., ■ A'l), cases of personal injuries, cases of profits ou special contract, and cases invcdving malice, wanton- ness. oruToss negliu'ence, would not be seriously con- H(lii((l but for the fact that counsel, for whose learning and nhility there is entertained the most sincere and jinifonnd res})ect, have again so far yielded to their instriicti(ms as to set it down for the consideration of tills High Connnission. Hu' gulf is so wide between the pro])Osition np))ly- iiiu' licre, as heretofore discussed, and this one, as to lieiinit of no contact or induction at any point, and the Ncry text writers and cases cited to sustain the latter, as will be seen presently, i)oint out the broad 'listinction. It will be treated inider the head oi damafies puni- >"ri/ (ir vindictive in respect of rvantminess, malice, or 'ji'iiss iicfilifience* 116 •J 'Seep. 126, infra. 116 DAMAGES- -" WARNINGS." Compensation in fespect of ivarninys. It Avill be seen b}' tlie reconl that with the excep- tion of schooners owned in whole or in part by Aineii can citizens, there are but two cases in which any substantial recovery can ))e 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 warn- ing by the Paris Tribunal, or the warning ..o 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 result- ing, not of course in loss of the rvs or any part of it, but in detention or interru])tion of the voyage, uni- versally considered under the head of "Partial loss." In such cases the doctrine heretofore discussed, as has been seen, a})plies with ecjual force against pro- spective profits as such — the rule against contingencies being e(}ually strong. This distinction in the rule of damages in cases of partial loss, or detention from earning, is nowhere more clearh' drawn than bv Dr. Lushinoton in the case of the Colidnhiis. (Supra, 3 W. Rob., p. 159.) Sedgwick, in his work on Damages (Vol. 1, p. 257), after discussing the rule in cases of partial loss under the head "Cases of entii'e 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 ques- tion of gain prevented. If payment is asked for destruction— that is, for the whole value of the property — it ia ui)ou tlie 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 plaintilf 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." 117 And see Dr. Lusliinoton in the case of tlie Chfcle (Swi'.l). Ad. E.). In siu'li eases the Supreme Court of the United Stiitcs have adopted tlie rule of tlie En<>'hsli judg- mciits in cases of partial loss, disthigniishinf^ alwaj^s lu'twcen a case of total loss and a case of partial iliiiiiau'e or detention. Williamson v. Barrett (13 Howard, 101) was a case of this kind, and the court, at pag-e 110, says: The jury was instructed if tbey found for the plaintitfs to give damages that would remunerate thorn for the loss nec- essarily incurred in rsiisiug the boat and repairing her, and also for the use of the boat during the time necessary to make the repairs and tit her for business. \\y tlie use of the boat we understand what she would pro- duce to the plaintiffs by the hiring or chartering of her to mil upon the river in the business in wliich she had been usually engaged. The general rule in regulating damages in cases of collision is to allow the injured party an indem- nity to the extent of the loss sustained. This general rule is obvious enough, but there is a good deal of ditliculty in stating the grounds upon which to arrive, in all cases, at the ])roi)ei' measure of that indemnity. The expenses of raising tlie boat and of repairs may, of course, be readily ascertained, and, ill 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 danuige sustained by the loss of the service of the vessel while she is undergoing it'iiairs. That an allowance short of some compensation for tills loss would fail to be an indemnity for the injury is apparent. Tliis (juestion was directly before the court of admiralty in KiiRland, in the case of the Oazelle, decided by Dr. Lush- iii};toii, and in deciding it the court observed: "That the imrty who had suffered the injury is clearly entitled to an adcfiiiate compensation for any loss he may sustain for the (k'teiitioii of the vessel during the period which is necessary I'm- tlu" completion of repairs, and furnishing the new articles." In ilxing the amount of the damages to be paid for the (kteiition, the court allowed the gross freight, deducting so mucli as would in ordinary cases be disbursed on account of tlic Nliii)'s expenses in earning it. A case is referred to, decided in the common law courts, in ^vbicii the gross freight was allowed without deductions f«^ 118 DAMAGES — "warnings." expenses, Avliicli was disapproved as iuecpiitable and exceed- ing an adecpiatc compensation, and the qualification weliave stated laid down. This rule may aflbrd a very lair indemnity in cases where the repairs are coni])leted within the period usually ocoiipid in the voyage in which tlie I'reight is to be earned. I>ut if a longer ix'riod is refpiired, it obviously falls short of an ade(|uate allowance. Neither will it apply where the vessel is not eugiiged in earning freight at the time. Tlie principle, however, governing a court in adojjting the freight, wliicli the vessel was in the act of earning, as a. just measure of compen- sation in the case, is one of general ai)plicatiou. It looks to the capacity of the vessel to earn freiglit for the benefit of the owner, and conse(|uei. 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 certaiu than in a case where she is not at the time under a charter-party, and where her earnings must, in souie measure, depeiul upon the contingency of obtaining for her employment. lj\ lioirerer, ire look to Ihc (Icuiaiul in tlie inarhci for rcsscls of the description that lias been (lisableil and to the price there irhich the owner could ol>tain or might hare obtained /'or her hire, as the )neasiire of compensation, all this r.necrtaintii disappears. If tliere is no dennmd for the employment, and of course no hire to be obtained, no compensation for the detention during the rei)air8 will 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 conseiiuence of the dam- age the amount which slie 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 uot as certain as in a case where she is under charter party, at least so certain that for all practical i)uri)oses in the admin- istration of justice no substantial distinction can be made. It can be ascertained as readily and with as much precision asthepriceof any good connnodity in the nuuket, and afford;* as clear a rule for estinuiting the damages sustaiucd on account of the loss of her servi(!es as exists in the case of danmge to any other description of personal property of which the party has been deprived. In the case of the 6Vr:^e//6' they held the i)osition that an allowance of freight afforded a full indemnity for the deten- tion of the vessel while undergoing repairs. This would be so as ah'eady stat wimlil have bei it is certain th laid down umU was entitled tc sustain for the was necessary inj; new article at tiic time wa ticiiliir case uii allor l('d,doubl lino, that the i was the correc cases. There of the vessel, I cable irrcspect The case ' In ill the tore; 111! the siibje cases ot" totii It may he the Ch/di', sii T\\ iss as refi .■'//'■, and sn}' who re('eive( jirn|)('rt\" was 1 'i'. Liislii tnic, hut it ( Tin' JJrfse lisidii, where eiiL;';iii'e(l ill well, althoiii evidence to Ni> authorit be induced to iiuestion of en besides, tin hlo ehai'ge on I'liriiiiig thatw AL'.iin a cnsc tract. DAMAGES- -"WAUNINGS.'' 119 ;is iiliCiuly stated, if tliey were iiiadi' witliin the jieiiod she would liiivc^ been eii}i;iiged in earning it. It' it were otherwise, it is certain that tiie indemnity allowed Cell short ol'tlie rule laid down under winch it was made, wliieh was that the party was entitled to adecjuate compensation for any loss he might sustiiin for the detention of thevessel r the (iiuvlle (2 W. Kol)., 27!)) referred til in the tore»«'()iii^' opinion, is tlie leadinu' En;^lisli case nil the snbject of partial loss as distiniiui-^lit'd from ciiscs of total loss. it may lie observed in passinii' tlnit in the case of tile Cli/di', sn])ra (Swnl).), Dr. Lnshin^ton (piotes Dr. T\\ iss as refei'rin^- to the above-cited case of the (ra- :ill'\ and sayi.i^", that a party was in a l)etter situation \vIh» received only partial dania^'e than (tne whose |ii(ijK'i't\' was tot.vlh' (lestro'S'ed. Df. Lushini'ton eonmients: "This is innh>ubtedlv true, hilt it does not alfect the prin('i])le." Tlir JJcfsci/ Ca'nies (2 Ifau'., 21)) was a case of eol- lisidii, wherein the injured vessel was at the time I'lionu'cd in salva^v of a foreij^'ii ship, and Loi-d Sto- wcll. althou.ii'h holdiuii" that there was not sullicieiit evidence to sup))ort the recovery, said: Nil authority has been mentioned by which the court might be induced to consider itself excluded from considering a iHicstioii of conse(juentiid damage. * * * I'x'sidcs, tliisis not a mere claim for conse(|uential or proba- ble charge only, if the smack was actually in the pursuit of • iiviiiMg that winch itliad been stipulated she should receive.* Ajjiiiu a case of certain rtaniages in tort measured by an existing con- tract. 120 DAMAGES "warnings." And sc^e wliero the distiiu'tions Jiro dnnvu between total and })iirtial loss, and yet where in every case mere ])rospe('ti^■e daniMji'es are excluded, tlio following: Hadley v. Jiaxendale (i) Excheciuer, Uep., 341), a case of special contract. The yoffnif/hi/l (i) P. D., 109, supra); delay by collision resultinji' in the cancellation of a charter- party — the cliarterers having- a right to cancel the charter-])arty for !l(i!ie, the ffains from ichich depend in a (jreat measure upon chance, arc too purely conjectural to be capable of entering into mmpiiisation for the nonperformance of a contract by reason of wliich the adventure was defeated. For a similar reason, tbe loss of the value of a crop for which the seed bad not 122 DAMAOES- -" WARNINGS." been sown, tlio yield from wliicli, if pliiiited, would depend ii]>oii the eoiitiiigeneies of weather aiul season, would be excluded as incajiable of estiiuatiou with that def^ieo of certaiuty which the law exacts in the proof of dainafies, l!ut if tiie vessel is under charter, or engaged in a trade, tiie eaniiufis of wiiich can he ascertained by reference to the usual schedule of freijihts in the market, or if a crop has been sown on the {^round prepared for cultivation, and the plain titl's complaint is that because of the iufeiior quality of the seed a croj) of less value is [)roduced, by these circum stances the means would be fnrnislu'd to enable the Jury to make a pr(»per estinuition of the injury resulting from tlie loss of prolits of this character. '^rhc ATiiylK'N' case, I'cportc"! in 4 niafclit'., ^3!), was decided l)y Nelson, circnit jndu'c, iittcrw.irds of the Supi'cnu' JVmk'Ii of the United Stutcs. It was an ap- peal from the decree of the district c(uu't in a case of c(»llision, partial daniauc, find detention. Justice N(;lson says: The aggregateof the bills jtroved for repairs, ete.,is$l,(i08.ii.'V The commissioner had reported damages to the amount of $;{,l;()1;.o(). if interest be added, say for live years fnmi the 1st of November, IS.jt, to the date of the report, October 19, 18.~)!), upon the bills for rei)airs, etc., which interest is $554,17, making the aggregate >'2,I(»L!.8(), which, deducted from the amount reported, leaves a balance of $1, ()!)!>..")(), which must have been aUowed for the fointeen days' demurrage. I am not satisfied that the proofs bring the case upon the question of damages within the rule laid down in Williamson r. Bar- rett (l.'i Howard). A good deal of the testimony was gen- eral aiul turned upon mere o[)inion as to the probability of employment in the towing business, and the amount of the earnings if emi)loyed. This kind of proof is too speculative and eontingent to be a foiuidation for any rule of damages. It is, at best, a con- jecture. The true question Avithin the case of Williamson r. Barrett was what could the tug have been chartered for per day in the business of towing, reyard heiun hariiifi been rtdsefl at the trial as to the priiK ii)le upon irhieh damayea oitf/ht to have been assessed, the couit refused to disturb their verdict. Evidence was merely introduced as to tlie value of mil' \(iyao'e which w(»uld have been inulertaken had tlir vessel heen delivered to the plaintifls, and the tlvi^ht to be earned was the market rate which "\va.s tixcd and subject to absolute proof. And see the same distinction and ])i'inci])le a])])lied ill I'.oston IJailwav r. O'Heilly (15.S IT. S., 334), Kich- 111011.1 Railroad t'.'Hlliott (14!) U. S., 26()), Howard v. Stillwell Co. (135J U. H., 199), Griffin v. Colver (16 N. \. court of appeals, 4i»l(l. the vendee is allowed the market price for the day lixed tor the delivery. Althomjh this, in both eases, amounts to an iill(nc<(nce of profits, i/et, as those profits do not depend npon, (iiiji vontinficnvff, rccoi'try is permitted. it is regarded as certain that the goods would b.ave been woi til the established market price at the place on the day wlu'ii and where they should have been dellvei'ed. Uu the other hand, iu cases of illegal cai)ture, or of an 124 DAMAGES- ■" WARNINGS." iiiHuraiico on goods lost at sea, there oiii be no recovery for the i»robiible loss of profits at the i)ort of deHtiiiatioii. The principal reason for the difference between those (iases ami that of failure to transjmrt j,'oods upon land is that, in the latter case, the time when tlie {jfoods sliould have been deliv- ered, and conse' in the nature iifii sul)stantial return on the amount invested should l)e ;i warded to the owners of the ships of British sub- jects for the season's sealing- voyage for which the ve.isel was equipped, and from realizing- on which she wiis prevented by the warning-. The principle adopted hy the Board of Trade in their reports on the claim (if the whalers in the case before the Geneva Tri- liiuiid is a reasonable one.* ►Story, J., in the case of the Livehj (1 Gall., 315), which was a case of unlawful capture, said: 1 shall allow demurrage, iuchuling therein wages and expenses of the ship from the time of capture until she could retmn to the place of capture. Substantially the same principle was involved in the decisions that have been considered in the discus- sion of partial-loss cases. In this connection it should be observed that in the c;is(; of the forty-one whalers as to which there was so much discussion as to prospective profits in the Greiieva case, many of the whalers were not destroyed, Init were ca[)tured and bonded, and driven from the sealing- grounds. Others were utilized by the captors t'tir the purpose of relieving their ships of captives taken from other vessels destroyed, and thus were not <»nly driven from the sealing grounds, but were sent on the service of the captors. * p. 97, 8upra. 120 DAMAGES PUNITORY, ETC. Tliis appears l)y the seliediile and .statement of claims in the record of tlie i)roceedin<>-s at (TCiievn. but for more convenient reference as to the facts the opinion of tlie American Connnissioners of the Aln- bama chiims in the case of the Jan>cs Maurji and others may be referred to. Dainai/rs piut'dorii or vindictive in. respect of wantonness, malice, or <;ross nef/Jif/ence. In so far as the opposin<»' argument chiims daniages for acta of wantoimess, insult to the flag-, and the like, questions wholly between nations, the ])osition seems to be that in some way an individual subject nmv succeed, as it were, to the usufruct or satisfr.ction that one nation may demand of another for such acts, and that this vindication of national honor may be trans- nuited into cash for his benetit. On this jn'opositlou enough has ))een said and suflicient nithority cited. Inasmuch, howevei", as some wei^^ht is attached to the position of the American counsel at Geneva in respect of this class of (lamaji(vs (see the American ])osition (pioted at \)\). 20-21 of the British arjiunient) that point is ))riefly referred to. TVi'. American argument stated the rule of dainaj>e? which applies in all cases of malice, "cul))able ani- mus," or n f't' t ■ '' ' ,:J,'i'i 1)(' iKistf rcpcittec lIKlttf'V ( Aw lins I'liited * Mxcltul kociiiiii; o rifiini oil 1 sriziiri's, J) llilVl; lll'CIl 1ms lii'iMi a Aiiu'iican OllM'l'VLT ; ^W^BPPHF DAMAGES PUNITORY, ETC. 129 ritisli aro'ii- itate (>f the ual or con- es gave to t; )i' Sen jukI has joined with that Government in | the effort to prevent it. Hut a])art even from tlie question of what may .lel alleht, wliieh exehides in its iffirmation tlie idea of want unnatural or remote, being wholly a question of lie certainty of proof," refers, of course, to that "cer- Itiiiiity," in the legal sense of the term, as defined by Itlie cases which have been alre^»dy exhaustively It'Xiunined. Hut past prolits are in no case to be taken as a guide to pvliat may afterwards be made. (Masterton v. Mt. Vernon, |1S X. v., 391.) The citations from Sedgwick and Sutherland, of |«iiicli the case of Allison v. Chandler (11 Mich., 542) taken as the text, a))})earing on pages 28, 29, and 132 DAMAGES PUNITORY, ETC. 30 of tlie Briti.sli nr| stock in trade. It is usually spoken of through the books aiuii re})orts of cases as the leading example of a "willful, wanton, reckless, and malicious trespass.*' And so the Michigan cases follow it, but distingiiisli cases like the one here considered. (Hyatt v. Adniiis, 16 Mich., 180; Batterson v. Chicago, 49 Mich, 184;| Kreiter v. Nichols, 2.S Mich., 491) ) And, furthermore, it is held in the supreme courtl of ]\Iichigan — where xVllison v. Chandler still lioldsl its place — that the "wrong must be one wilfully doiiel the ])laintiif, and not a wrong done without refereiioel to him." (Detroit r. Mc Arthur, 1(\ Mich., 447. Aiulf see 28 Mich., sujmi; Gansley v. Perkins, 30 Micli.,1 492; Tenhoi)en v. Walker, 96 Mich., 236.) The case is like that of Temperton -r. Russel— I malicious injury to trade— (1893, I Q. B., 715), or if apj)lied to marine torts, would lie like the cases otl malicious arrest of a ship, if it was the "result of badl faith or crassa negligence." (See cases cited, L. K [ Dig., 1891-1895, column 803.) LEGITIMA^ EXTRAVAGANT CLAIMS. 133 The ([UotatioiiH from Potliier, Laurent, and from Ilciiiolombe require but two comment.s: 1) Tliese are not cases of fraud; and 2) It need hardly be said that ilie rule of dam- tines under the Civil Law difl'ers from that of the nminioii law, and has no a})j)lic'ation here; neither |li;is;uiy code which has the Civil Law for a parent. LSGiriMATE COMPENSATION AND HEREIN OF EXTRAVAGANT CLAIMS. Ik'icafter, under the ])ro|)er heads, the testimony lit the several owners of the respective vessels and the ■otlicr evidence will be analyzed, so that what ma^' be Ik'cincd the hig-hest limit of fair valuations and fair ■{niiipensation for injuries may be arrived at froui the Iti'stiiHony. TIu' tendency to preposterous exag-geration by iciiiiitiiiuts ag-ainst nations, and es[)ecially under Claims ICdiiuuissions, has been universally observed, and is liuitlutritativelv set down in the books as a matter to W treated as a general rule in arrivinf^ at valuations. Tuder the British and American (ylaims Conven- iridii of 1S71, 55,()()() printed ])ag'es (74 octavo vol- liuiu's ot' (SCO pages each) of testimony were taken, and Itlif iingreg-ate of claims presented by British sul)jects iijiMiiist the United States was 896,00(),()0(). 'The jtiitjil awards of the (Jonnnission on those claims ag-gre- Liitcfl si^y29,(Sll). The claim of American citizens pivsciited to that Connnission ag'ainst Great Britain |iiooi'(.u;it(j(| Sl,0()(),()00, of which none were allowed. (Hiit. Agent's Re})., ]). 5, Apj). 164; and see Am. lAuviit's ilep., vol. (), Papers Treaty of Wash., pp. 4,8.) ruder the Convention of P\4)ruary 12, 1871, be- |t\\('('n the United States and S])ain, upwards of $30,- 'i"0,0()() of claims were presented and considered, iiiid of this amount there was allowed somethings over pi, 0(10,000. (Am. Rep., "Opinions and Decisions," ApiH'udix.) m 134 EXTRAVAGANT CLAIMS. liffoiv tlie Anu'ricMii and Bi-itisli Coinniission of 18"),'} cliiinis }iainst tlie otlicr, and tlie total award on tliein was, on account of liritisli subjects, 8277,1 02. S(S, and on account nf American citizens, sa2!), 734.1(1. (Am. Aoent's \\c ])(U't — Introduction and Reca])itulation.) Tnder the (Maims C"on\ention l)etween tlie Unitcil States and Mexico of July 4, IHOS, the claims pre sented a<>'o-re<>-ated 847(»,l'2i;,()18.13, and the Com missioners allowed on theui the sum of •S3,!>7r),128.71l.* Brit.andFor. ' In April, 1.S71, the Montijo, an American ship, pers, 1874- was ca])tnred and detained hy the United States df 75,yoi. 66,Q,,i,,„^|)j.^ ^p1j(. United States i)referred a claim tor damages. The matter was referred to arbitrators. The amount of the claim presented was !iS{)4,()0(). The arbitrators disagreed, and the matter was then referred to the British minister as umpire. The report on the (iiics- tion of comjiensation made by the American arbitrator was artirmed by the umpire, cutting the com})ensati(m down to 833,06(). On the claims for British ships destroyed in the Seine by Prussia, Great liritain referred the \i\\m- tions to the lords of the ])rivy council of trade tor investigation and audit. The result was reported by the l)oard 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 excels of the most extravagant valuation that could be i)Ut upon them." *Iii 1880 a British subject iu Greece was injured, liis family 'toaten, and "liis whole property destroyed."' His claim on the Greek Govern- ment, which Great iJritain took up, waa for £21,295 1b. 4d. Great Britain's method of intervention at first was by making reju-isals. Greece protested, and Russia remonstrated. Throuf^h the mediation ot France the controversy was adjusted by referring it to commissioners, who, oi> full iuv*'stigation and appraisement of compensation, awarded the British subject £150. (Baker's Halh?k, Vol. I, p. 472, note.) And again: jilisurd in the Tlic Kegisti ;i report, in w 111 tlie presen tlnit I sliould 1) I follow in court, when lie puts ft I (lone iu tlie.se v; it is of int( lilt upon shi] trade and A( Skill Alii'i" Aim .liiiic 'I'iiiilall. Jessaniiiio ... Mcl.iireii Sally (iiile ... S\ Ipli Tlie aggr( pounds; the rciiistrar of t! A similar on the Ame British case they say: It will at on with tlie prac impossible to of shipowners ffliicli they ar habit of foun market price EXTRAVAGANT CLAIMS. 135 And iijiiiin: "Those estimates are extravait', ill the long- hearing in tlie case of the CurolcNa, luV' iiid miscarried, within the observation of those who were to come after, no one wonld venture to estimate liuw far the prejiosterons exaggeration wonld have l'-([uipmentfor business in general, for fishing voy- iiji'i^s on the coast for other seasons, for supplies for ittlicr ships, stocks of goods for Indian trading stores, and so on, might have been added to the enormous iuiii Hints that are now shown; and, as in the case of the Carolena, vouchers might have been presented of tlic most orderly, most regular, and coiTect kind to ("iivince the Commissioners that all these were used 138 DAMAUES- •1»EU80NAL CLAIMS. in }i ])i-<>lon . lass, tlicv were certainly no better than those referred to in the citations heretohtre ([uoted, as beinj^' unreliable assess- ors of their own values and dania<:es. PERSONAL DAMAGES FOR FALSE IMPRISONMENT AND PAIN AND SUFFERING. As to these, a table is subjnitte'ms still to l)e given credence in the British ar<>ument. is a storv of hard- shij), but it is not believ d, after the investig-atioii at Victoria, that the Conunissioners w ill give it any credit, p. 59, sched- The "sutferings and losses, na-s ig-ating- four vessels ish^cMms*^'^^'" Unalaska to Sitka," of Cai»'.ain Warren, John at Paris. Keillv, Captain Ferey, A. B. Lidng', L(niis Olseii, ]\Iichael Keefe, and Ca])tain Pe it, of the Warreii- Coo})er fleet, mig-ht possibly be coxisidered irresi»et'- tive of the actual American ownership of the vessels on which they sailed, with the exce])tion of Warren and Laing', who had full knowledge that the national character of the shi})s on which they sailed was not Brit- ish, but American. In an}- case, the amounts charged for the hard8hii)s all appear by the table presented. * Infra, p. 335. What the ;i|i|)c;ir at th ;it tliat heari mill Keefe v Al;i>ka at a tin- aiithoriti tlicir service it did ap] uri'c ort' on iiiiiiH'd, who Ciijitain Wa Among til Mi'c (luttorn ;ill(tf theO/, Margy the iiuthoi'ities ot" the l'nite'(^ in tliat ix'half, al' the others nniiicd, who were not surt'erino- like thciuselves and (';i|)tiiin Warren, had de]tarted for home. Amonji' the prisoners of 1(SS(!, aside from Mar^otich, MIC (Juttoi'nsen, Moni'oe, Norman, ()<^livie, and lilack, ;ill of the Oinrnrd, 'riton/foH, and the ('(ooh'tut. Settinj^' Miir^-otich aside, the tale of sutferinji' of these men is related by the witness Dillon, who, as it turned out (111 cross-examination, actually I'emained about the jail, not as a prisoner, but as a deputy of the sheriff, iiiKJ remained because^ he 'es in these i)ersonal chums, and not a word of testimony exce])t that of Mares for cash lost through him is a pro])er cliai'iie aoainst the United States. riie ])er8onal claims are of a character m any case which have never been allowed in a case of unlawful capture at sea. They are chiinis for punitory dam- a;i('s, wliich, as we have seen, can not furnish the rule of damah all prior Commissions, and notably under the Commission of 1871, that all per- sonal claims of masters or members of crews of ships 140 DAMAQES- '' PERSONAL CLAIMS." for iinprisonment, li{ir(lslii|is, or otlierwise, wero pre- sented se|>;iriitely i'roni the ships, by indivifhials, be- cause a iiiulin<>' was recpiirecl oii "eacli" elaim, as in tliis rase. It follows, on tliis <:;Touiid also, that no elaiiiis can be entertained that are not scheduletl. It was the act of a (Tovernnient under e<»lor of riuht and elaim of jurisdiction. Althoue persons, and the inconvenience they exi)erienced appears to liave been small. In the case of the otticers and crew probably there was none at all. The wa}>es of all of these latter have doubtless been l)aid by theowi'crs. so that it really must have been anuitter of inditterence to them whether tliey were sailinji' under the orders of Captain Saunders or of Sefior Her-M'a. As to Mr. rJohn Schruber. the undersigned can scarcely consider as a case of false imprisonment his retention ou board of his own vessel. That he was not a free man is true, and that he suttered some inconvenience and posvsibly some loss of business by the act of which he complains is probably the case. It is al.so ])ossible that a court of hiw might consider him entitled to i)ersonal duunxges, but the undersigned believew that a Tribunal such as this is may lawfully e\erci.se (M)nsid- erable discretion of its own, and decjde rather on broad gen- eral princiides than on a strict inter])retation of written law. Such being his opinion, he concurs iritJi the Arhitrator of the Unitt'd States in striking out of the accounts presented by that (rovernment the claims for personal damages of all tiie parties concerned. On the te possible tha iis they re hi sciitcfl ao-ai iillowcd for or without Whateve rlic ships o iilipcarino- the Paris must be a (•nil not b( iiu-rc state (liiiiiiimii c1 milcss the tliiit dania: ]i('iises can In tlie r;i licr subje;-l ScilM'. ■!ll/H ciupiloved 1lie clai tort. {Ba < >r in ci\ Si HDi'd (Ik The Bri llif ieadii market dv Thatth ' The iiuiiil AiLMimont foi DAMAGES SEAL SKIN VALUES. 141 CLAIMS FOR LEQAL SERVICES. On tlic testiuiom' Mt Victoria, it is hardlv tliou^lit ])(issil)le tliattlie.^c t'liarf^-es will be eiitertaiiuid, in sotar lis rlu'V relate to the ])reparation of elaiins to be })re- sciitcd atvainst the Governnieiit, and ii(>Tliing' can be iill(»u-ed for "leiial and other ex])enses," on an estimate, or wit! ai proof of what the\' are. \\ liatever cliarjics were ])aid ont for the tiefense of rlic ships of liritish owners in the courts of Alaska, !il)]i<'arin<>' in the British schedule of claims before tlic I'aris Tribunal, should be allowed; but there iiiii>r !)e a i-ertainty of proof as to them, and they ciiii not be l■eco^('red without ])roof, and on their iiH'ic statement ot the (daim, anahtji'ous to the r in cases of wron;;ful capmie ai sea. {Nticstra Sdioni th' Rcghi, 17 Wall., j). 31.) THE VALUE OF SEAL SKIXS.* The Briti»li Arpiment cites the witness Theo. Lubbe, tile h^adinp ]nirchaser of seal skins in the \'ictori}i market (hirra-;- lS8t;, 1H87, and 1889 to this etfect: riiat the riaarket at Victoria was ruled by the London * 'lilt! iiitnil)er of Heals seiznd ou each vessel is iiccurately stated in the Arjjiiiimnt tor (irsat Jiritaiu. 142 DAJfAGES SEAL SKIN VALUES. sales. This beinj^- so, even if it be {idinitted that the London prices have anythinji' to do witli tlie nieasuie of value, the tendency of the testimony as to that foreign market, in coi.nection with the actual siilcs at Victoria is to the conclusion that the Victoria ])rices, so ruled, are still the tests of values in this case. The evidence dis(d: Theodore Lubbe, re[)resenting Martin Bates Jr. & Co., of New York; Walter Bonis; Jos. Uhlman, of New York; H. Liebes Si Co., of Sail Francisco; ^forris 3[oss, purchasing agent at Vi(- toria; I'he Hudson l^ay Com])aiiy; d. and A. Boscowitz. With ^his evidence of a market at Victoria and witli the dear evidence of another aiul active market so near as San Francisco, it does not yet ap})ear liow the evidence; of Loiuhui sales could be com[)etent. The claims originally set down in the schedule })re- sented at Paris were in terms based on tlie Victoria market, with the exception of those of Mr. Munsie, who there sets out the London ])rices. As t(t tlie other claims, the foreign market is a new theory. It is not necessary to again state the measure ot recovery for the conversion of })erRonal property. The cases heretofore carefully analyzed, universally ludd to a test, that would exclude the London market 1>AMAGES — INTEREST. 14H IIS II lueasure of vnlue. Wlierevcr ]»resente(l, as to riiii:<", ill cases ot" iiiariiie tort or contract, such a claim liiis l)fi'n invariably ruled a^'ainst. The time of" the iiieasiu'e of vahio in siu'li cases is the date of seizure. The pidce of tlie measure of value of cargo is invaria- lil\ the })(;rt of de})arture, if a market exists there or, it' lint, the nearest market. INTEREST. In limine, it may be said that interest was never lu'tore claimed U[)on ])ros])ective profits, or upon any- tliiiiu' ;i'iven in lieu of prospecti^■e profits. The only reason ever g'iven for the allowanc if interest at I'diiiinon law, or by the Civil law, is, tliiir as pros])ec- ri\(' profits or future earnings can not be tes the rule of the New York judgments, as to 'n/fcirsf, as follows: In two actions against a master of a ship for nondeliv- ery of goods, it was held in New York that the .iury niiglit give vide(l that even tlmt provision should not extend to losses occasioned bv the manifest deJay, negligence, or willful omission of tlie claimants. As to tlie claims in favor of the United States, Sir John XichoU recommended interest on the ascer- tiiiiu'd amount of the "original cost" of the property (it'tlie claimants. Of course the original cost was a ctitiiiu basis for the computation; but it is expressly ]ir(»\i(led in tlie treaty in that case that a recovery sliiill not be had for losses or damages occasioned by the manifest deJaji, etc., of the claimants. (See for tlie (hstinction, British argument, id., ]). 561 et seq.) The case at Geneva radically differs from this case, ami iimong otlier distinctions it is to be observed that, iis stilted bv the British xVrljitrator at Geneva, Sir Alexander Cockburn (quoted .snpra), the original list of private claims was "forwarded bv i^Ir. Seward to Mr. Adams in 1t by express stipulation. (Vol. l^, Papers Relating [ to tiic li'^aty of Washington, p. .505.) The same authority states the general rules suc- liiH'tlv in the followino- words: The rules of law, as far as they may be applicable to this question, do not favor claims of interest, except under special I circnnistances, as in cases of agreement, expressed or implied, I or ot the possession or enjoyment of ijitermediate profits, or of injury, })roperly so termed, in respect to the tortious nature I of the act, for which the compensation is to be made. (Id., I p. 5(11.) Ill tlu3 Geneva case certain interest was allowed, wholly in the discretion of the arbitrators, in lieu of 147 :.l,^i-. 148 DAMAGES 8AYWARD COSTS. certain earnings, vvliere it a])peare(l that tlie Ameri- can Government had presented tlie claims, which were ])assed u})on by tlie arbitrators, immediately at the close of the war in 1S06. 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 ca])ture of the ships. In this case, as it has been shown in the Introduc- tion to this argument, (Ireat Britain expressly stated that the circumstances M'cre sitrh that the chums could not he audited or ])re8eiifcd, and suggested that in lieu of auditing and presenting the claims at the time a Connnission should be a})])ointed. This suggestion resulted in the Paris Arl^itration, and the claims then for the first time a})peared to the United States. Even th.en, owing to the ques- tions of citizenship and others, no computation could 1)6 or was made, and then co)i,slderatiori ivas h// afjrce- meiit, in the stipulated findings, again })Osti)oned. It results that imder the law and precedents — (1) Interest can not be allowed as a matter of right; and (2) Hiat under no circumstances can interest be allowed upon values from a date ])rior to the Paris award, or, as we submit, prior to the ascertainineut ot 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 munici})al rate. THE "COSTS IN THE SAY WARD CASE." TheUnit(;d States stand upon their motion to dismiss this claim on the ground that the Connnissioners h.ave no jurisdiction to consider it under the Convention, tiir the foil I'duclusive: The item, iidinitted to iiieiit in and Coui't of the to the Feder /'. Sfti/icard, C'stimate 87,< in behalf of costs of the c di(trt/e,uiii(\e is a claim for >;l,S()(). (1) There liv tlie Con on account o hcliiilf Grea tion from th( the Treaty of the said '^ tiim;d claim preamble he The Unit "IKTSOU.'* {■2) Tin of the said 1 claim." It ish claims, Findings, w ('on\ t'Ution, S 1 nns Tril )i 1 111(1 mgs m the British ( lidiof Septe of the Trea; DAMAGES SAYWARD COSTS. 149 till' the following- reasons, any one of which is ' ciiiiciusive: The item, without interest, is for 862,817.12, iiiliiiitted to be the expenses of the liritisli Govern- iiunt in and about a vain a])})lifation to the Suj)reme Court of the United States for a Avrit of })roliibition to the Federal Court of Alaska in the case of tlie W. P. S(ii/ic(ir(l, a fishinj^ schooner worth at the hig-hest (stiinate 87,000. It a})pear8 by the claim presented ill behalf of the owners of the schooner that for the costs of the owners in litij^ation entirely outside of this (■liiir(/e, made in behalf of the British Government, there is a claim for legal expenses and "costs" amounting to " ^l,soo. . . (1) There is nothing referred to this Commission liy the Convention under Article I except "claims 111! account of injuries sustained by persons in whose hcliiilf Great Britain is entitled to claim compensa- tion 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 addi- tioiijil claims specified in the fifth paragraph of the '■' preamble hereto." The United Kingdom of Great Britain is not a "person." (■J) '^riiis is not a claim api)earing in the "Findings itfthe said Tribunal of Arbitration" or an "Additional claini." It did not ap[)ear in the schedule of the Brit- ish claims, ])ages 1 to OO, inclusive, specified in the 7 Fiiiiliiigs, which, as has been seen, are a part of this ('oii\('Ution. Those claims, which were before the Paris Tribunal, and specifically })ointed out in the Kimlings named in the Convention, were set out in the British case, which was delivered on or before the i!th ..f September, 181)2, in accordance with Article HI^fo.anTe- i the Treaty of February 21), 181)2. print, p. 5. 150 DAMAGES — SAYVVARI) COSTS. Vol. H, Aiii.^r- There was iiotliiij"- about tliis claim in that case, 2G9. print, p. and n(»tliin' l)y Sir ('liiirles Russell, on August loth Hdlowing, made the Findings of Fact, and found the claims before them, in respect of which Findings of Fact were refjuired, to l)e, (inly those between jjages 1 to (50 inclusive of the oriiiiiial liritish case, thus formally excluding this cliiini by the act of the Tribunal itself as one ttot " before" it. Tli(! British argument is again in error when it sii}s there were no other costs for Tlw Sa i/ ira nl wh\c\\ (•(iiild be referred to. They have been referred to and stated as amounting to 81, SCO in the liritish lujiiiment at page 111, and were referred to and set (lilt ill the orlf/inal British schedule, at l)age li), j)assed u|i(iii as 'before the Paris Tribunal," amounting to XI. KM). They are there set down as claims on accoinit of ii "pi'rson," i. e.. Cooper, the owner of the Sai/trard (;}) This claim is not an "xVdditional claim" lim- iti'(l by Article I of this Convention as specified in the fifth paragraph of the preamble, and is as ex- ]ii('ssly excluded from reference under that head as it is ill terms, as above shown, excluded from the class iippcaring "before the Paris Tribunal." (4) iVs to the efi'ect of the "Appendix" of claims iittiiidied to the Convention: The title of that Appendix, as attached to the Con- vention, excludes the costs in the Saijward case for tile reasons before stated. That title is "Claims .sub- mitted to the Tribunal of Arbitration at Paris." The words "costs in the Saijirard case," as noir construed by ( Treat Britain, are inter})olated under that title. It need hardly be argued that such an annex or (f any principle, l)y which, the lepd expenses of a defeated party, incurred in a case whenvin he has vainly invoke* I the wrong judicial jurisdiction for relief, can be allowed liiui. The rule is otherwise in a proper case, if the i)arty has pursued the proper jurisdiction by a])peal. No reclamation can Ije made ajiainst a (rovernnient, upon judicial acti(»n in its courts, unless the proceed- ing* complained of ha.«s been sanctioned l)y the coint of last resort in the judicial system of the country complained (»f, or there is a h'ndl excuse for the failure to ap])eal. See cases directly in point imder the Aujerican and Ih'itish Claims (N>mmission of 1871 from ])]). SS tn 141, inclusive. (Vol. 6, })a[)ers, etc.. Treaty of Wash- ington.) It is not true, as intimated in the British argument, that the a])plicati(m for writ of proliil)ition was a con- sent ])roceeding'. It was vigorously conte.sted by the United States, and the note vcfhdJe of the Secretary of State, referred to in the British Arg-uinent, [A;n-il 8, 1888],* recognizes *The prohibition proceeding was not nstituted till January, 1891. or t'x- 'If. It The "additional claims." the t'iU't that appeal pr(K'et'(liii])er, and, of course, lias no ivt'cicnce to the application tor a writ of ])rohil)ition of years later. The costs in the Sai/inird case in the liti^iition so "a])pealed" ini<>ht, on amicable adjust- iiiciit, be included in the convention, ami flict/ irrre. I'limll//, the owner of the Siujwayd — the claimant — IIS Iiiis been seen, is a civil citizen of the Tnited States. Tlienias H Cooper is the sole owner and claimant witliin the findings of fact of the Paris Tribunal. 153 THE "ADDITIONAL CLAIMS." These are for the owners of the Waitderer, the W'nilfiril, the Ilcnrirtfd, and the Oscar (iinl Hatf'ic. i'reamlde 5, made a })art of Article I, by reference, states that the United States admits no liability as to tliciii. The facts regarding- these cases are analyzed under their proper heads, infra. The case of the Winifred is concluded against (iivat Britain by the action of Captain Parr, Her Majesty's Naval Connnander in the I'acific. Th(; handing of the Wnufrcd over to the United States authorities fen* ])rosecution under the revenue laws, liy the commander of a IWti.sh shij) of war, (Stops that Government from making a claim as much as if that action had been taken by royal order. It is iiniversallv recojiiiized that on the hi<>h seas or ill t'uivign waters, the connnander of a connnissioned ]Mil)li(' ship of war rejn-esents the sovereignty itself, ami speaks for it. Everything done by him is pre- >uiiiablv by ti-e direct authoritv and express order of tlu' State, until such acts are exjn-essly disavowed. (See case of "Trent") * Ml this all writers on international law are agreed, (See Hall Int. Law, sees. 65-226.) Tlie point that the seizure was made outside of the 154 a ADDITIONAL CLAIMS. jiirisdiotion has iiotliinji' to rest upon. When tin- Britisli ship IVinificd caiue witliin the control of Her Majesty's sliip ol" war, in the harl)oi- of Unahiska, .so far as any privile^'e from extra-territorial seizure was concerned, it was. as it could be, waived l)y the action of Great liritain acting" thr()u<>h Oonnuander Parr. The additional clainis are not jyoverned by the find- ing's of fact or the ])roceeding's of the Paris Tribunal in any respect. The international (juestion of jurisn can re^-ise the finding' of the court of Alaska on any juridical ([uestion. No intermitional court can revise the judgment of the court of anation, mdess tluBt judg'nieut he by the court of last resort in its judicitd system. This rule is established as one of universal ap])lication. to which there can be no excep- tion, alliens au a})j)eal was prevented. The owners of the Wni'ifml can not enter this inter- national ct'turt, without showing an unsuccessful appeal to the last appellate jurisdiction in the judicial system of the Fnite. 88-141), where the authorities are colle<'ted and the whole sulvj^ct is e.xhaiistively con- sidered and is i-e|)eatedly pa>Mseroperlyac(|uiescing in the direction of the ccninmander of 11. M. S. Meljwiiieuc, defended (ni the merits and was ''ondemned, and took n cited. •2 Spiuks, 23 liciore the i^ cU'., pp. 13(i- In this cas Uiiflif was ti in;:' St'a. Il rei'tK- i-epre iticiK . Thai into "ourt, ]: dor case th States and then, was ii Uo\( 'rumen' The ccmr liriti>ei'/ure. N facts of the must rest w Thi' case (///'/ lf((tfi<\ treated und !■■ "ADDITIONAL CLAIMS." 155 en the of Her skn, SI I rind- fibuiial TlIE 08CAR AND IIATTIE CASE. Ir is the settled rale in .such eases that however tlie tacts may turn out, if the captor acted on reason- able cause of susi)icion, damao-es can not be allowed fur rlic seizure. But in this case Her Majesty's (tov- miiiicnt under the Hindus r'lroidi set out what should liL' considered the prol)able cause. This order w^as aiLnitcd in the United States. On the ([uestion of iiinl);il)k^ cause we cite TJic Isnlie/la T/ioiiijhsoH, Am. 111(1 l)rit. Mixed Com., Vol. 6, Papers lielatino- to Wash- iiiiitoii Treaty, ]). !)3; Fdci/iqiir, id., \). 1)7 et se(j., and laso cited. And see J>t . Lusliiitf/fin/ in the Lei(cu-ton, whereupon her re- lease was immediately orderetl l)y telejji'raph. JSiie was detained but a })art of one day, antl the utmost possible ex[)edition was used in obtainino- authoritative instructions in regard to her case. For this act Great Britain l)]-ings a claim for "seiz- ure" and for damages for future catch. It need not be argued that the general rule is that all fiU'eign vessels, and for this purpose even ships of war, are liable to visitati(»u fntm customs and (juar- antiue orticers oi" the nation whose jurisdiction they enter. (See Bakers Halleck, Vol. I, p. 217, notes '> and (J; and see Hall, ])p. i;i5-2. The law as to a vessel, that has j)ut into a foreign port in disti'ess, is perlectly well settled. The ])rivi- lege of such vessel, bv the' couiitN' of nations, w hie is <'laimed, hy protest or otlierwise, the au- [tliKiitics are entitled to l)e reasonabl}' satisfied of the UiMtd taitli of such claim. The ^jrivilej^-e itself, so far I its jHcperty is concerned, goes only to the exein])tion if the ship from the execution of the laws of the jurisdiction, which, l)ut for the privilege, inlght work tiii'tciture of ship or cargo Tlicre is no (hjubt whatever, either, that if the irivih'ge be claimed, and the good faith of the claim is fairly doubted, the (juestion may l)e l)rought l)efore the courts of the nation of the i)ort for trial. The burden of proving the necessity or distress, wliich brought the sliip in, is u])on the ship. (The l)i((iHi, 7 Wall., 354: and see The CopcnlKUioi, I C. H(d)., 2S9.) Ill any case, however, the privilege must be as- xitcd and claimed promptly from the authorities of tilt jurisdiction in jierson, or by a consul of the ship's iiatiuii; otherwise it (h»es not avail. /// fills cdsr, as flic Coiniiiissioiicrs irill JiiuJ on rrj'cr- 'iirr In till' lii'coni, the claim iiaic set up on flic part nf tills rrs.sci, that she was in, Xrah Bail to ^\1ix lirr rial- il'i" or oflicririse from ilistrr.ss, iras ncrcr iiiailc to flic risith/fi oj/iccrs at am/ time, or broiu/lit to tlicir attention t'inii'illi/ or iiiforiiialli/! On the long Pacific coast of the United States, which is es})ecially e.\))osed at all tiuies to offenses iiuaiiist the revenue laws, or, for that matter, on any "thcr of their coasts washed l)y the high seas, the |irn|itr officers of the customs service may visit a dii|) aud, upon reasonable suspicion as to its charac- ter, detain it for the UL'"essary time to ask for instruc- fiuiis from their Government. The right and the practice is one of self-j)rotection, iiiid not one that any nation can surrender. The •listless thetu'v, and the bill for dama^'es, originated 158 OBSERVATIONS APPLYING ONLY TO CERTAIN CLAIMS. with Munsie, like many other things, but all unwit- tinf'ly, he did not fit his ])root's to the law requiriuf)' that the distress privilege should be pronipt^.y cUiiined, in order to form even a pretense for his good hope of avails. Tlte Black Dinntond, Xo. o, and James Gaml'w, Xo. 11. — These claims are submitted on the questions raised on the motions to dismiss them, found, re.s])ec- tively, at pages 16, fol. 60, and 37, fol. 50, of Ajjpen- dix 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 })age 17 (id.), wherein it is agreed, subject to the sanction of the Commissioners, that they may be proceeded with for the })urj)ose of re[)orting facts and conclusions to the res})ective Governments. Provided that the (luestiou of jurisdiction of the Coinmis- siouei'S under the Convention, in respect of said chiinis, shall remain undecided, but the Commissioners, in their discretion, may report their opinion on that ('uestion, counsel intciidiug 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 (^)nnnissioiiers may take; and, as bearing upon the positions takeuin the motion to dismiss, attention is invited to those jiarts of this argument bearing u})on the interpretation andsco])e of the Convention on the question of juris- diction, and also to ti)e facts as hereinafter analyzed. OBSERVj lis of die dal that counectio trict court of from the Gov can cut no fij Jence, the aci tlic'\' would n I after the seizi The princi] That a tende it a))i)ears at l)een accepte M'liwuii non r !{obi:rt L Charles ] The Caroh'na, 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 mmm OBSERVATIONS APPLYING ONLY TO CERTAIN CLAIMS. IIS ((f file (late of the seizures. And moreover, in that (((nnection, the f'aihu'e of the othcers of the dis- trict c'ouit of Ahiska to act on the telegraphic orders tioiu the Government for the release of these vessels laii cut no figure on this question, as, under the evi- ilciice, the acts and conduct of the owners show that tlu'V would not have accepted a release at any time lifter the seizures. The principle to be applied in such cases is this: That a tender is never necessary to be shown when it ajjpears at the trial that the tender would not have ht'Lii accepted if made. Jks vanum mm emjit; Jus iicquaiit non requirit. Don M. Dickinson. HoBKRT Lansing. Charles B. Warren. 159 i ■:m Appendix I. Condensed protocols. Correspotulence preliminary to the negotiation of the treaty of Washinj/ton xiffned May S, 1871. lion. II AMI] ISir Edicard Thornton to Mr. Fish. Washington, January 2(j, 1871. Sib: In compliance with an instruction which I have received from Earl Granville, I have the honor to state tiiat Her .Majesty's ( iovernnient deem it of importance to the good relations wliich they are ever anxious should subsist and be strengthened between the United States and Great Dritain, that a friendly and comi)lete 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 ^lajesty's [)()sse8sions in North America, and as to any otiier (pxestions between tliem which affect the relations of the Tnited States toward those possessions. As tlie consideration of these matters would, however, in- volve investigations of a somewhat complicated nature, and as it is very desirable tiiat tliey should be thoroughly exam- ined, 1 am directed by Lord Granville to propose to the Gov- ernment of the United States the appointment of a Joint iligli 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 nu)de of settling the dif- ferent questions which have arisen out of the fisheries, as well as all those which attect the relations of the 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 wiiicli 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 coiitribute to the maintenance of the j;oo(l relations between the two countries, which I am convinced the Government of the United States, as well as tliat of Her Majesty, equally have at heart. 1 have the honor to be, with the highest consideration, sir, yniiv most obedient, humble servant, Edvvakd Thoknton. lion. IlAiriLTON Fish, d-c. Mr. Fish to Sir Edward Thornton. as Sir: iioto of Depart:ment of State, Washiiijjton, Janiiori/ 30, 1871. 1 have the honor to acknowledfie the receipt of your January 2G, in which you inform lae, in compliance witli instructions from Earl Granville, that Her Majesty's (i(>v(M'iiment deem it of importance to thi good relations wliicli they are ever anxious should subsist and be strength- ened between the Tnited States and Great Britain, that a friendly and comi)lete understanding should be come to lictween the two Governments as to the extent of the liiilits which belong to the citizens of the United States and Ifer Ma,jesty's subjects, respectively, witti reference to the lisheries on the coast of Her Majesty's possessions in Xoi'tli America, and as to any other questions betwt>on them wliieh affect the relations of the United States towaid those liossessions; and further, that as tlie consideration of these iliiestions would involve investigations of a somewhat com- plicated nature, and as it is very desirable tliat tliey should he tiioroughly examined, you are directed by Lord Granville to ]ir(»pose to the Government of the United States tiie aiiiioiiitment of a Joint High Commission, wliich shall be composed of members to be named by each Government, siiali liold its sessions at Washington, and shall treat of and diseiiss the mode of settling the different ([uestions that have arisen out of the fisheries, as well as all those wliich affect tlie relations of the United States toward Her Majesty's pos- sessions in North America. 1 have laid your note before the President, who instructs me to say that he shares with Her Majesty's Government the appiceiation of the importance of a friendly and complete understanding between the two Governments with reference to tlie subjects specially suggested for the consideration of the proposed .loint High Commission, and he iully recog- nizes the friendly spirit which has prompted the proposal, n s 11 i*S 162 CONDENSED PROTOCOLS. Tlie President is, however, of tlie opinion that, without tlie adjnstment of a class of questions not alluded to in youi note, the proposed High Coniniission would fail to establish the permanent relations and the sincere, substantial, and lasting friendship between the two (lovernuients which, in common with Her INIajesty's Government, he desires should prevail. Ue 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 CMnmitted 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 IJer ^Majesty's (Tovernment acce])t 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 iiual and amicable settlement, this Government will. with nuich pleasure, appoint High Commissioners on the part of the United States, to meet those who amy be appointed ou behalf of Her Majesty's Government, and will spare no efforts to secure, at the earliest practical moment, a just aud anucable arrangement of all the questions which now unfor- tunately stand in the way of an entire and abiding friend- ship between the two nations. 1 have the honor to be, with the highest consideration, sir, your obedient servant, Hamilton Fish. Sir Edwaki) Thornton, K. C. B., ibc. lion. Hami Sir Edward Thornton to Mr. Fish. Washington, February 1, 1871. Sir: 1 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 friendly 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 Ignited States, and whi(^h have existed since then, growing out of the acts com- mitted by the several vessels which have given rise to the claims genericjilly known as the "Alabama" claims, will also be essential to the restoration of cordial and amicable mmm CONDENSED PROTOCOLS. leliitioiis between the two Governments, I have the honor to iiiforni you that I have submitted to Earl Granville the iipiiiioii thus expi'essed by the President of the United Stati's, the friendliness of which, 1 beg you to believe, I fully ai)i)rt'(!iiite. I (vni now autliorized by his lordship to state that it would jiivc I ler Majesty'sGovernment great satisfaction if the claims coiniiionly 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 i|uesti()ns relating to the British possessions in North America should be discussed, provided that all other claims, botli 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 expres- sions made use of in the name of the President in j^our above- iiiL'iiti(»ned note, with regard to the "Alabama" claims, loiivince me that the Government of the United states will loiisidcr it of importance that these causes of disputes lii'tw cen the two countries should also, and at the same time, bi' (lone away with, and that you will enable me to convey to my (iovernment the assent of the President to the addition vliii'li they thus propose to the duties of the High Commis- sion, and which can not fail to make it more certain that its labors will lead to the removal of all diHerences between the two countries. 1 liiive the honor to be, with the highest consideration, sir, your most obedient, humble servant. Edward Thornton. Hon. Hamilton Fish, (fcc. 163 Mr. Fish to Sir Edtvard Thornton. Department of State, Waahiiiffton, February 3, 1871. Sii! : 1 have the honor to acknowledge the receipt of your note of the Ist instant, in which you inform me that you are autliorized by Earl Granville to state that it would give Her Majesty's Government great satisfaction if the claims com- monly known by the name of the "Alabama claims," were submitted to the consideration of the same High Commission '•y wliich Her Majesty's Government have proposed that the questions relating to the British possessions in North Amer- ica 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 coniuiitted durinj; the recent civil war in tliis country, are similarly referred to the same Coinmisaiou. I have laid your note before the President, and he has directed me to express the satisfaction with which he ims received the intellifjence that Earl (Iranville has authorized you to state that 1 ler Majesty's Government has accepted the views of this Government as to the di8i)osition 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 g:rowinj>' 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 Hi,<;h Coinmissioiiers shall consider only such claims of this description as maybe presented by the Governments of the respective claimants at an early day, to be agreed upon by the Commissioners. 1 have the honor to be, with the highest consideration, sir, you obedient servant, Ha:milton Fish. Sir Edward Thornton, K. V. B., tCc. Extract from Protocol XXXVI of conference between the llujh Commissioners on the part of the United States ami the IH(jh Commissioners on the part of Great Britain. Washington, May 4, 1S71. The High Commissioners having met, the ])rotocol of the conference held on the 3d of ]May was read and conlirmed. The High Commissioners then proceeded with the consid- eration of the nuitters referred to them. The statement prepared by the joint protocolists, in accord- ance with the request of the Joint 1 1 igli Commissioners at the last conference, was then read, as follows: STATEMENTS. Articles I to XI. 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 intilcted upon their commerce and tlieir material interests by the course ami con- duct of Great Britain during the recent rebellion in the riijtcd states her cdlouies d tlic I lilted St not desire to ( (,/ llic Alahnni (!)■ (ifiiied, or tioii ot force i (ipfiatioiis of' the cajttui'e fi wirli tlieir car //((■ iiiirsnit of ,if (t Innje pa llritisli flag, i hiiuidtion of tl (list III' the ica sltoivifl that (i iihsi'fninee of tor tlie acts o ilainis for the li;i(l tlius far I lions of dolla to be greatly scntcd; that till' pursuit of iif ilocernmeil aniiciible set losses, withoj ciitiuu on the being made. Tli(^ Anieri hoped tliat til upon record eminent for t acts were no the .Joint Hi{ should be p: satisfaction < The Britisl ernnient con discharge to her by the ri liable to n\a sioned by tl Coniinission( Coiuniissiont si,uned to ci ii'onclads. CONDENSKD PROTOCOLS. 165 Ciiitcd Stiites; that wliat had occurred in (Ireat Britain and her ((tlonies (Inriiijj- that i)eii(»Ie of tlie Tnitcd Status did not desire to <'herish toward Great Britain; tlmf the ItiHtortf of llir AlfihniiKi ami other miificrs ichich had hccii fitted oiti, III' iiniH'd, or eqnipjied, or which had received aufiinenta- tioii of Ibrce in (Ireat Britain or in lier.coh)nies. and of the dlK riitions of tiiose vessels, showed extensive din.'ct h)ssesin tlif captiue and destruction of a hu'f>e number of vessels with tlieir cargoes, and in the heart/ national e.rjtenditttres in the jiKrsnit of the eniiscrs and indireet injitri/ in the transfer ;/' <( larije part of the Amerieun eommervial marine to the liiilisli l\iiioii('iH, referriufj tw the-iiope whicli they hat! expressed on tuc -^th of 3Iarch, incjuired whetlier the ISritish Coniniissjoneis were ])re})ared to phice U|)oii record aii exjjressioii m re^xret by lier Majesty's (Tovern nient for the deprcdatwiih coniuiitted by tiie vessels wiiose acts were uawunwier di!*cuf*H(oM ; and the Uritish Coninii.s.sion ers repliery satisfactory to them, and as a token of kind- uesH. aiid said that they felt sure it woiiM be so received by th.« Government and i)eoplc it the United States. M tiiie conference on the ^ith of April the treaty Articles I to XI were agreed to. TESTIMONY ] This is t'ou iMiultdii, Lnn in ls.')4- and ( rnitcil iitiXtv ill 1S5II, since ill tlic State iirt, never lu Anicrlca. Waircn, t< (R.'conl, 94( (). He is an A. No. (). Lives in A. Lives in (,). How Ion A. Well, he (). lie has 11 A. I tiiink <). Now, in liiw. is he not A, Yes. (,». He has 1 A. Vcs. «,». Vou pri T, li. Coo])cr. l)iit not in tht' A. San Fra (). How lot is your broth iiiiiial illllllld lerilic Imiiai Appendix II. TESTIMONY BEARING ON RESIDENCE AND CITIZEN- SHIP. Thomas H, Cooper. This is touiid in Ills exaniiniitioii: Ho wns born in ij., isi^n. lino llniiltitn, Lancjisliire, Enji'land ; that lie left l*'^",U"liiii(l j^'^j';,.^- ,1^^^^ ill \x')\ and caniu to New York, and lias lixcd in tlu- itotii. riiit('(l States ever since; that lie went to Cahfornia ill ls5i), since whicli time he hascontinuonsly resided ill the State of Cahfornia: tliat lie is a British snb- jict, never ha'in. lie is an Ainericati citizen, is he not? A. No. (j>. Lives in San Franci.sco? K., itto, Hue A. Lives in San Francisco. 67. <.>. ilow lonj:- iias Cooper lived in San Francisco? A. Well, lie )ias lived there a luunber of years. , lie has lived there ubout twenty-five years, has he not? A. I think likely. • ^ Now, in regard to Mr. Cooper, he is your brother-in- P., 951, line law. is lie not? 24. A. Yes. '^ lie lias been liviiip- in San Francisco? A. Vi-s. ^}. Vou produced the other day a power of attorney of]}., isi;?, line T. 11. Coo])er. A similar (iiiestion was asked in the Thornton, (55. '•lit not ill these cases. Where does Cooper live? A. S;iii r'raiieisco. <^ ilow long has he lived there, to your knowledge? lie is your brother inlaw, is he not? 1(59 170 TESTIMONY ON RESIDENCE AND CITIZENSHIP. TES A. Yes. I expect it must be getting close on thirty years. if. Do you HMneuilter the year that lie went tliere? A. No; 1 do not, exactly, only hearinjr him talk. I thiiik it must have been pretty near thirty years ago since lie went there. (^>. Did you many his sister, or he yours? A. 1 married his sister. Q. Did he live in 8au Francisco when you were marrii'd.' A. Yes. Q. I^ow, 1 am going to find out how h)ng ago you wore married. Captain. A. 187.!. Q. Was Cooper then living in Sau Francisco? A. Yes. Q. And had he been living there for some time? A. Yes; for several years. Andrciv J. JJecJitel. The nflidavit of Andrew J. Beclitel, sifyned ami sworn to in tlie city of" A'^'otorin, on the (ith day of K.,i!H)i', line July, 18'.'4, was read into the Record on behalf of tlie United States: I, Andrew J. Bechtel, of the city of Victoria, in the Prov- ince of IJritish Columbia, hotel keeper, make oath and say as follows: 1st. I was born in the State of Ohio, of the Tnited States of America, and I am the brother of M. X. Bechtel, deceased. 20. ^lufEx.No! ^^1^'^ '1 certified copy of tlu' bill of sale conveyiiio- 4, u. s. to Bechtel the C'dji of San JUcf/o, togx'ther with ; 1, JO '' ' 'affidavit made l)v Bechtel statino- that he was a re.' m p. 49. aiiuiaviT iiuKie o\ iic^ciiifi siariiijji' iiiut ne was a re.si- dent and citizen of the United States of Aniericii, The athdavit is as follows: District of San Francisco, Fort of fSan Frdncisco. I, John A. I'.echtel, of Auburn, in the county Placer and State of California, do swear, according to tlie best of my knowledge and belief, that the .sciiooner called the Vi iind ,'„"„ tons, and was built at San Francisco, in the year Mer of t /.(Ml of any fore IlllSt. lOiilideiK [intlit> or issue Sii )S''nbe( ISIKI (ilUMUT was ( hano-ed Andrew J liritiiin : <.'• ^Yhere d \ in \^icto <.>. How Ion A. Al)Out t <.>. 1 believe A. Y"es. »>. And hav A. Yes. Q. And this veavs * ' A. Yes. <.>. What In A. 111 the s <.>• How Ion iiess- -about 1 A. 1 can't s <.». About t A. Aliout t Q. What w A. llotelb Q. What w A. 1 have \ Q. Y(m wei A. l''or abo 1 f was 1 latii iii' to hif ( n cross- '*'4'^^ • i»ii-*'t 1 line i-to* IMHO (incorrectly i)nnte(l ni the liecord 18i)6, l)nt nils clijuig-ed, l)y sti])nljition, in the liecord, to 1S90). Aiiih'ew ,1. Bechtel was called t»n l)ehalf ot" Great u.,ii5, line i I'lrirjiiii : <.>. Where do you reside, Mr. Bechtel? A. In N'ictoria, i^t. I low long have you resided in Victoria? A. About twenty-three years. <^ I believe you are nuuried and settled down here? A. Yes. i). And liave a fannly here? ^ A. Yes. <^ And this has been your home for the last twenty-three veni'S '.' ' A. Yes. <,'. What l>Msiness are you now in? A. In tlie sealin. How long have you been *»ngaged in the sealiJig buai- iiess— about how long? A. I can't say exactly as to months — over three years. . About three years, you mean? A. About three years — longer. . What was your business before that? A. Hotel business. <,>. What was the name of the hotel? A. 1 have kept ditVerent hotels. ^>. You were a hotel keeper in \ictoria for how niiiny years ? A. For about eighteen. Ilr was recall('(l, hut no te.stiinony was given re- ^',jgf "'' ^'"* latiiin' to his residence or possessions in Victoria. * Ml cross-examination: K., 150. i(l you have any stores or buildings there from which yoii received rent? A. I had some cottages. 112 TESTIMONY ON RESIDENCE AND CITIZENSHIP. TES K., 3!)ii, 31. R., 1.5f.crio(l of eiij'hteeu years." Tlie United States claim Hcclitci to have been half owner (tf Carolei/a at time of Heiziuc AujL>ust 1, 1S86, half owner of I'dthfixler at time of seizure, July 21), ISS'J, and half owner of Pafhftiukr at time of "seizure, M; n-ch 21), lS!iO It is in evi xrii .it' the U „t' llt'cembei On ihe 1(1 iHit liaviii<>M-( iiiM' liini to b On the 7t atlidiivit ill ■ snitcs that In tli;it he resid ( )n the iiid: 1. the nnd Caliunbia, di I am a n: the county t of allegiauc l)Ut llii lice ill hlfjii, liei" (111 Hot ;i act u{ claiiii TESTIMONY OX KESIDENCK AND CITIZKN'SHIP. Jhd/irl McLciitl. 178 It is in cvidciicc that ho became a natiiniHzed citi- '■';j-, ^z-' ' ■ ^• zeiMif the United States ot" America ou tlie 1st da}' Ex.! p. litKt. ,it" December, 18S2. (Ill tlie Kith of October, ISHC, the United States '^'j,,';'^^' '"'« iidt having- conscMited, ]\IcLeau took out pajx-rs declar- iiii^' liiin to be a naturalized citizen ot" Great Britain. On the Tth day of September, 18!)2, he made an '^'^J^-^' "°® atlidavit in the city of San Franci^sco, in wliich lie states that he was a natnralize//, registered at the port of Victoria, British Cohimbia. lie makes no statement as to his resiflence. (hi the -Otli of October, Daniel McLean made an^., 1955, line iiHidavit in which he states as follows: 1. the undersigned, Daniel McT.ean, of the city of Victoria, 111 till' Province of British Coiumbia, Canada, master mariner, (k'cliive as follows : I iim a natural -horn Britisih subject, born at Sidney, Cape Bietoii, in the Province «>if Nova Scotia, and since I took the •aril (if allegiance r,o a I'oreigii State — United States — Novem- ber. 1S7!>, I did. on the lOth day of October, l.S8(), take the until I if allegiance to Her Majesty. (»u the Kitii day of November, 1887, McLean ;n;ide affidavit at tlu* port of Halifax, Nova Scotia, to ■ '■\\\\ the reg'ister of the Triuniphm his name. He Slid: i. tlio undersigned, Daniel ]McLean, of Victoria, iiritish Coiiiinbia, declare as follows: 1 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. •6.i. 174 TESTIMONY ON RESIDKNCE AND CITIZENSHIP. ^^'s '(•'\V, "•• I^iiiiicl McLean wns owiu'i' (»f <»m'-t1iir(l ot" Tnimiil kx.Tti. ill tinu' of seizure, .]iih' 11, I881». A hu(tii((t'r McLean. He iK-^'ame a luituralized citizen of the United States l)y order (►f the circuit court of the UiiittM] States, district of Massacluisetts, on tlie 1st <1mv of Deceinl)ei-, 1882. E. 689. ^^*^ siiik-d out of tthe port of San Fnmcisco (tn tlic Matfi FjIIiii in the year 1 883, and was enjj'a,s. Ir. It. Lrwynn, Ins attorney, made amtlavit on the 1st day (tf February, 1S8istcr(Ml iii the name of Morris .M,,» (wliich date is November 10, 188S), "tliat he \\;is all Aniericaii citizen." The Record dischtses the fact tliat Frank had l)Usi-]{.,iiiiHi, line iicss in San Francises* about the time of the seizure III the L/li/ and the JUdck Didmond, «^^ily '^i^'l -^^i- -list. 1 8S>. Had you started in the new business in San Fran- risco .' A, 1 became a partner in 1S8!> — the 1st of January, 1 think, ISS!) or 18!»0. 1 do not know the di te exactly. It was not a new business, but an old-established business. i}. And you liave been at it ever since? .\. ! have been at it ever since. <,>. And you can not tix the date when you left Victoria for Sill! i'raucisco. I do not mean to say without returning occasionally lieref A. i returned off and on here for a number of years. (i>. Ueturued for liow long? A. Oil, for a week, or two weeks, or a niontli at times. <.>. ("oiild you state approximately the date when this business or store which had been carried on iu the name of (iiitiiiiin .S: Frank was ciosed? A. [ could not. Tlie only otlier evidence in tlie Record bearinj*' up(m tile domicile of Alexander Frank is in liis affidavit, printed on ])a^els empl( scIk loners B S— UNCERTAIN CHARACTER OF SEAL HUNTING. Tlic iHC'tliod for coinpiitinji' iiii cstiiiiiitcd ciitcli, |iru|inso(l i'l the opposiiio' Ai'^^i'miicnt, tiikos into jiccoiint iKMic of tlic ('ontiii' v'e. The attention of tlie lliji'li ("onnnissioncrs is caUcd III rlic statements of Daniel Mcljean, fl/c niastfr of the Miiiji Ellen iti 1S,S0', tlie o))erations of wliich in lliat iinif are selected by tlu^ claimants as showiuf^- the iisiuil success of a sealing*" schooner. He says in his (lc|iosition, which appears in the Record: Scalim/ a venture. — Tlic conditions for a successful catch H., I822,|line lire 8t) many that while one vessel may take a great many, ^• aiiotlier with equally as large a crew may secure only a small niiiiiher. Itrequiresexperience, a careful study of the habits of tlic seal, and a thorough knowledge of their route of travel iildiij; the coast to Beriug 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 pur})ose of this portion of the argument to l)iictly review the principal features of seal hunting iiml point out more in detail the contingencies and conditions obtaining which remove it from the field iif sjife investment and surround it with the elements iif chance. , Scaling as carried on in the years from 1886 to 1X!I(), from the ports of Victoria and San Francisco, was necessarily hazardous and uncertain. The ves- sels employed were usually small second-hand >ili( toners ranging from 15 to 12.5 tons burthen, B s 12 m 17.S UNCKIM'AIN' (MIAKACTKK OK SKAL UlINTINn. Ui, tlS. tli»>ii;;li tlic (ii'y<'(l u]»on a "lay;" that is, an allowance of a certain per cent of the minil)er of skins secured in lieu of wayes, the crew thus entering- into the speculation of the owner. These small sch(H)ner.s, leavin<»' the port of Victoria ill April, May, or June, mmlo their way northward along' the western coast of British (Johimbia uiid Ahiska oi" by direct cour.se across the ocean to Uiiiniak Pass, the nearest entrance to Bering Sea. The ves- sels carried either w hite or Indian hunters, the major- ity having the latter, in the years from 188() 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 apjiroacli- iiig 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 ap- parent that wdieii 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 modi- fied, a vessel with white hunters low'ered its boats, to secure INCHIM'AIN t 1IA1;A( Tl.lJ OF nI.AI, lllNriN(i, 17 'J .11 . ill. wliicli took tlicii- course to tlic w iiHlwiird, tin- limitcrs ''•„.''"■'*• '''"' ki(|iiiiL:'ii sli;ir|i lookout tor tlic iiiiinuils.jmd soiiictiino 'j:ii\\\'j; l ;irr ntt( II Io\V('1'(m1 wlicli no sciils ;iiT ill siiilit. W'licli ;i scill u,i> seen, liillcli (lc|ifll(•(• liiin !i certiiin distiince «»tV, whether they iire ;4'oin;^' to ui't near to him and shoot him: tell hy his actions wlicther he is asleep or awake." Ittlieseal a])i)eared tu he awake, the hunter used his rifle at a ran^c of (10 to loO \ards. 'Die shotji'un was <>enerallv used when the animal was asleep, and could he more nearly ap- ]ir(>nche', in some in- stiiiices a dozen shots bein-, the spear was cast wlieu the boat was within 25 or 30 feet. If sutticieiitly skillful to strike the snuiU, moving' mark, the animal was (bawn to the can(te by means of a cord attached to the sj)ear head. If, however, the animal was awakened by the approach of the canoe, there was little probji- bility of his bein<>' securee l)ecause the seals taken by it were necessarily " sleejiers," as the use of the s])ear necessitated a close apiu'oach to insure a successful cast. The I n' the west coast of Vancouver Island Avere i«>norant and superstitious. Several instances aj)pear in the Record (which will be given more in detail hereafter) where a sealing voyaj»e was brought to an abrupt end through some K., 307, line superstition or ignorant fancy of the Indian hunters line 'so- arising from the sickness of one of their number, the 1405 ''"line '****'^ of R caiioe, a prolonged season of rough weather, 52;' 7.57, the stubbom determination to return home, or some i^ig" * J '^^j other cause which only the Indians themselves could 37. explain. Another peculiarity of the Indian hunters was that R., 308, line they Were unwilling to start sealing when tiiere was "~ ^^^S^y weather. As fogs are so frequent in Bering Sea, it is apparent that this fear or 8U})erstition of the Indians nmst have tended to greatly modify their efficiency and to reduce their value as seal hunters when compared with white men. 22. mm UNCKRTAIN (mARACTEll OF JSKAL HUNTING. It" tlic ('(mteiitioii made on the pait of" ( iroat Hritain is tiiic, tliat tlie locality of seals at sea was liiniteoing' review of the methods adopted by wliite and Indian hunters, res])ectively, has been hjised 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 in sealing' and the smallness of the boats and canoes used that the weather became an important factor in (l(!termining the success or failure of the voyage. There is, j)erhaps, no body of water on the face of tJK* globe wliere the meteorological conditions are more unfavorable for fair weather than Berinir Sea. 181 K., 310, line 54. Ciise of U. 8. Am. Rep., vol.2, p. 90. C o n n t e r Case of G. H. Am. Hep. , vol. 8, p. 517. Fogs were of daily occurrence, and often, as is R., nsi, line 38 : see itlso stilted by Captain Meyer, the forenoon might 1)6 clear and favorable for hunting, while the afternoon brought a fog so dense that it was im])os8ible to see the length of the vessel. These fog.s not only prevented suc- cessful hunting, but because of them many boats and canoes were lost Several instances api»ear in the l\('('ord where hunters were lost, and this danger was pel haps the chief cause Avhy the Indian hunters feared to go far from the schocmer. Besides the frec|uency of fog, it would a))pear that the prevailing* condition i»f the weather in Bering Sea was such as to keep the water rough and dangerous for canoe and boat and cvtii for the scluxmer. This fact often prevented the log books in e V i - tlt-nce. R., 150, line 25;615,liue 3;H71, line .SO. 'i. ! ffi-M 182 UNCERTAIN CMIARACTElt OF SEAL HUNTING. liuntcrs Itomi jioiii^' out Jiiid luul a iniitcriiil etf'oct inum tlu'ir iiuirksiniiiislii|). Jolm CJotsfonl, csiIKmI as a witness by the United States, well cxpivsse*! the (lirticulty ot'tlie Inniter when the sea was in motion: R.. 380, line Q. Do you think it nearly as dirticiilt to slioot a ses'l asleep »>7. on the water as to shoot a duck tlying with a ritle; which do you think it would be harder? A. I think about the same on the water, because yon 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 1 am seals ; therefore, I think birds would be the hardest of the two. A<»ain, U})on the same subject, he says: R., 381, Hue jf ^ man is rot accustomed to a boat or canoe, it is a tick- ^^' lish thing, and a man can't handle a gun very well. The prevalence of stormy weather and chanj^es of wind and fo<^s are amonj^ tlie priiu'ipal conting^encies which make seal l)untin«r uncertain. It is but neces- ' ' sary to examine the evidence, where a detailed state- ment of the daily operations of different vessels are j^iven, to show how frefpient were the storms which swept across Bering- Sea, althoug-h in many cases they were not jjeneral, but local in t haracter. For exam- B., 254, line pie, the Mavjf Elleu, used as the typical vessel by (Ireat liritain for the purpose of computinj^ a "prob- able catch," was in Jiering- Sea in August, 1H86, twentv-nine days, durina- which time she had fifteen days of weather so roug-h it was impossible to lower R., 109S, line a boat. The W. P. Sai/irnrd during- tw^enty-four days •^ of the same month had but eleven in which her Am. Ke p., canoes could be lowered. The Alfred Adams hi 1887 543." "' *' ^vas in the Sea for thirty days, during- which time she R.^ 702, lino lowered but fourteen. The Triumph in 1888 was in the Sea for a period of forty-five days, during whicli time there were but seventeen when she was able to R., 60«i, line lower her canoe.s. The same vessel in 1890, with white hunters, who, not being iiiHuenced by fear of 33. 24. UNCERTAIN CHARACTER OF SEAL HUNTING. 183 ((•<:>. it is to bo presuiued, lowered in weatlier which wdiilil have })revente(l Indian hunters ^'roin seahnj;-, \v;is ill tlie Sea forty-two days, and in tiiat tinu^ liad hilt lit'teen which were nol; too untavoralde tor her Ik lilts to be used. I'hcre is abundaiit testimony by witnesses pro- duced on behalf of Great Hritain 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 (•oiiditions also limited the success of huntin<>by hav- iii<>' a marked influence upon the seals themselves, if the weather was stormy, it was impossible for the stills to sleep, and if awake all witnesses a<^ree that the difficulty of securing^ them was larjii-ely increased, w liile for Indian hunters it was practically impossible. On tlie other hand, after what may be termed for that rcffion a long period of quiet weather, when there had liecii oj)})ortunity to sleep, the seals were restless. A<>ain, 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 their natures some peculiarities as yet unexplained, and perhaps unexplainable, which caused them to be iu(»used when the hunters expected to find them sleep- iiij:. 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 Ininter. From the 20th to the 25th of August the gales, liecoiuing more frequent and increasing in intensity, ('omj)elled the cessation of all profitable seal hunting. The tonnage of the schooner employed in seal- tiiking materially affected the determination of its season. It is to be })resuraed, and the Recoid con- taii < evidence to sustain the presumj)tion, that the 184 UNCEKTAIN CHARACTER OF SEAL HUNTING. P..209. master of a small vessel, at tlie first sijius of continued ])a(l weather, ceased operations and started toward the Ahnitian Passes. Havinjisuinniarized brief! v the contino-encies which particularly aj)pertaiu t<» the hunters and the seals, it is ])roposed to examine the other conditions which tend to modify the results of a sealin*»- voyaj^e, and to place the question of its jn'ofitubleness beyond leji'itimate speculation. It is a])parent, ccmsiderinji^ the class of men who were employed as seamen and hunters upon sealing vessels, and eH])ecially when the latter were Indians, ig-norant and difficult of (control, that the chsir- acter and experience of the captain became an important factor in determininjjf the success of the ciiiise. Mutinous, willfid, and superstitious, an Indian crew demanded exj)erienced men to man- age 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 sagacity in determining from observation whether it was ])robable or not that seals were sufficiently abun- dant in the vicinity to warrant the boats or canoes being lowered, was important in determining the mimber of the vessel's (^atch. Another modification which affected the results obtained Avas "luck." That there is any certainty of finding seals in sufficient number to insure a profitable voyage, or any locality where seals may be always found, is denied by the United States, and has been discussed in that ])oi*tion of this argument which deals with the so-called "sealing grounds." Havino- considered the conditions and chances which nuike uncertain the success of a sealing voy- age in Bering Sea, it is proposed to refer to the evidence relied ujjon for the statements made, classi- fying the testimony as far as })ossible under the UNr-ejRTAIN CHARACTER OP SEAL HUNTING. 18-) heiids int(» wliicii the subject unturallv divides itself. Tlic witnesses C^Mpt. Alexander >(('Lean, Charles K. l»n\ noi', and K, P. Miner, witnesses sworn on he- liiilt ot" the Tnited States, toiiether with Mr. Alexan- der, ot" the United States Fish (\)nnnission, have j»iven cvidcMce s«» eon»])lete and eoinprehensive that it is ik'ciiied advisable to insert their statements as a whole, lilt rcK- annotsitin"- the testimony. The examination ot"Ca})tain McLean upon this sul)- jcct is as follows: (^. Will you please tell us, as to the large catches of seals, R., »22, lino what is the condition of seals in these large catches; are,.^'^-..- i- they rnnniug or asleep? * ZtlT"" A. Mostly asleep. if. Do you know of any large catches being made of run- niiifj seals — seals aiwake, we will say? A. They kill a good many seal that are awake. (^ ^Vliat 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 gafted before sin king f A. Yes; sometimes, and sometimes they get away after Wounded being shot. seals. Q. Kven a 8'"r»oing seal? \. Yes, sir. (f. And if the seals are awake, is the distance longer from which you must shoot ? A. Yes, sir; but sometimes you get a chance shot when tliey are very close to the boat. (}. 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 shij) or schooner, does it follow that merely beitause the seals are there you will get them? A. Xo, sir. (). Do you know in the matter of sealing whether the Difliculty of scent of your approach has anything to do with awakening npproach. the seals? A. Oh, yes. . 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. 180 I'NCKUTAIN CIIAKACTKK OK SKAL lfUXTIN(}. Direction of Q. So tliiit ill iipin'osK.'hiiig (loes the direction of the wiud tiie wind. ]^.^yQ anytiiiii}? to do witli it? A. Yes, sir. Q. And how do yoii approach, \Aiien yoii can do it, in linntinj; for seals? A. (leneraliy approjicli from tlie leeward. If they up- l)roach from the windward sometimes they have to tnkc chances. Chnneeot «8- (^. What is the effect, if they note the approach of man, *'*'"'• upon the seal herd ? 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 flsh ? 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, othtr ves- what effect does that have upon the school, if you find them! A. If there is much shooting going on it makes them wilder.. Q. If another ship has jiassed over or shooting is going on they are awakened ? A. Yes, sir; if vessels are around they get wild. Q. If they get wild can you get theuj? A. Some, but not as many as if they had not been frightened. Q. And I think you have already stated that where they are already awakened, and shot at a distance, there is dan- ger 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 i^robably they may die after- wards. 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 sels. Chance of es fftpe. Ruin. UNCERTAIN CHARACTKK OK SKAL HIINTINO. 1S7 Proximity of othtTSoiilH. ExjusritMicw of hunter. Iwiatlicr tliat they htul befort' tlui rain caiiie. If it has bt't'ii line wcathcf, it will (listurb them more; they will not rest so [well. If it had been blowiiij; before the rain they will sleep inctiy well. {}. Does the awakeniufi' of a few of the seals, the distnrb- liiiiceola few, tend to awaken the others? A. Well, tiiat depends on the distance they are apart. (.). Altlioii;;h » man may be a i^ood shot at a mark, or shoot- in;,' >;iim(! on land, does the (luestion of the experience of a niiiii ill hnntin^ seals have anything to do with the nnmber (' ifpr.H when life finds seals? A. Ves. {}. In what way? A. In the way he approaches a seal before he shoots him. {). (live the Commissioners some idea of the way. A. All seals don't act alike; some act dift'erent. A man liiis ;ior to have considerable experience. It takes prob- iilily tliree or four months before he understands how to approach a seal properly. (^ And what is the proper way, from your experience, to apiu'oach a seal ? A. That depends on the action of the seal at the time; all seals don't act alike. Some hunters can tell how to approach till' seal; they can tell when they see him a certain distance ort' whether they are going to get near to him to shoot hira; ti'll by his actions whether he is asleep or awake. Q. So that determines the distance you will go near him? A. Yes. (). And of course if you shoot him at a long distance you** t^ucef " run the danger of losing him entirely? A. Dependsonhowyou shoot him. If he is badly wounded, you may get him. i). Now, when you are where the seals are, what effect does ®''*''*"'- tlie weather have upon the seals, even if your boats will live ill t lie sea? A. Well, if it had been tine weather and the seals were rested i)retty well, and if there was bad weather approaching tlie seals get I'estless. Q. The coming storm makes them restless i A. Yes, sir. . That is a modification of your chances to get sejils? A. Yes, sir. . And what is the habit of the seal when he becomes wild befdie a storm; how does he appear differently when not dis- tiirljfd ? A. Well, he moves. (i>. Has the experience of the captain of a vessel anything '^f y^^lt^j"® to (1(» with the size of the catch for the season? of captain. 1H8 INCHRTAIN CUAKACTEU OF SEAL HUNTTNO. R., 524, line H5. A. That is vt'ry liiinl to say. (J>. Tlie exju'iiiMiw of the captain in sealiii}> ? A. I do not wish to state tiiat. Q. Is tiiat because of your modesty ? A. No; i have been at sea a good deal i). Hut I would like to know. Let nie see; has tlic tap- tain's Jiulj^nient. I>ecause of his experience in seal JMuitiii;;,| auytliiu;-- to do with tlie way the vessel should approach tiic seal herd ? A. It has: he will have the vessel properly equipped ami] a good crew of men aboard. Q. Mas the selection of the crew anything to do with itf A. It has a great deal. Cjiptaiu Hay" with the result: A. Ves, sir, <»!' course; the more b(«its there are arouiiil either with siiootiufr or with spears, it wakes the seals ;iiid keeps them niovinj;, and you 'voiild not {j;et as nuuiy as if you were alone, C li a II <• !• of {f, A seal can travel taster than a man eoukl row in a boat «!K(a|ic. or that a canoe could paddle f A. Yes, sir. if. Or even faster tl.an an ordiuary vessel with an oidi nary wind could travel ifter theui? A. Ves, sir. Q. And they could kee)) up that rapidity of movement foi such a lonn' time as to escape their i)ur8uer8, could theyiiot! A. Yes, sir. i). Have you observed what the seals feed upon! A. Yes, sir; they feed most upon tisU and squids and shrimps in different localities. (^. These tish travel I'roin one part of the sea to the other in the same season f 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 theflsh? A. Y'es, sir. Q. From your experience of your three years in the Beriug 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 follow- ing-statements: 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. . Q. And in your boats? f fndl 11 g ^' ^ 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. (,t. Do you I „(riirn'iice, th idiiiMls you s< A. i liave 8 Ijlft tliciii when tlicy were iiior (,i. ^ oil coui idiild ill a lar^ A. ^ t's. sir. (,». What is A. lliey do (,». Tiiey arc A. ^'^'s, sir. {). And whe A. It is \ev\f (,». Is there j sliiit when the; A. Yes, sir; (,». Why is t A. Because the t'nint while and 1 understc they sink tail 1 Q. And go f A. Yes. (/. They doi A. I never ike a stone. Q. You nevi A. I always out of them from the back ii. And the A. Yes, sir. (i. When y usually are tn A. Yes; bei about they trj Q. Do the 8 A. Yes, sir. Q. At what A. I think i (^ Beyond A. Oh, no, { Q. Is there tpproaching £ A. We alwt UNCKIM'AIN CHAKACTKK OK sKAI. HUNlINCi. l!ll (^t. I til you tliul it tooccur as ail ordinary or exceptional <'">"i it ion iHYiint'iH'c, that wlieii there are abiiiKhiiit seals on the "' "''"'"■ ;iiiiiii yoii soiiietiines can not get them f .\. I have seen that ho. I have seen it more dillicult to L»'i iIh'iii when theri^ was an abundance of sealH than wheii I tiny wiTc more .scattered. {}. Vdu could kill in a segregated lium!h easier than you l l..\iInit.v olll(l in a large bunch? "*' other A. ^ Cs. sir. •""♦'"• (,>. What is the ditliculty abotit that? A. Tiiey ' , <»f lusnally are fronting you » approach. A. Yes ; because most of the time if they know you are [about they try to look at you. ( j. 1 )o the seals scent a man ? A. \'es, sir. Q. At what distance? A. I think at an extraordinary distance. (^ l'>eyond the sight of the vessel? A. Oh, no, sir; but I should think at least 300 or 400 yards. Direction of Q. Is there any special method adopted because of this in ^"** • Itppmaching a seal? A. We always approach from the leeward. That is, if we t. ■■ ' 1J)2 ITNCKHTAIN (MIAKACTliU OF SKAI. llUNTINd. I lire' to tli«) wiii(l« iird of the soul we iiie rart'f'iil not lo \nm her tlint wiiy. Kx|iori«'iiJo\v, Captain Miner, will yon please state whether tbc ScdN iiwnk- filing <'•' the gnus will awaken the seals? eiioil. A. It does very miieh: yes, sir. if,. Does it tend to make them wild? A. Yes, sir. if. And do they run from the ship or from the boats when the guns begin to tire? A. They get away from the boat that is tiring as fast as they oiin. Q. ^\tid they can go faster than a boat can be pulled by mi oarsmiin, can they not? A. Yes, sir. I). So that the guns awaken them, and the seals that an; near enough to hear the guns, to be frightened by tlioin, make way. Atiiio8i)h«ric A. I think atmospheric changes have a great deal to do clinnjtos. ^^jji, j^ Sonio days they apparently sleep verv soundly, do not awake easily, and others they are very easily disturbed. i). And then tliey are restive and run f A. Very. ii. 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 proiiortion of the seals you see, taking the sealing season from beginning to endl Skill of luui- A. Yes, sir; there is a groat ditlerence in different men who teiH. hunt obout that. I have carried men with me who I dou't think would average one in ten of what they saw; other men would get nine out of every ton that they saw. Q. You yourself rarely lose a seal when you get after liiint A. If 1 get close enough to shoot him. Q. You usually get a seal when you shoot him! A. Yes, sir; usually. Q. 8o that you get a very large proportion of the sealB you shoot f A. Ves, sir iiway. {}. And OIK jM your i'amili IMit HllOOt if tl A. Ves, sir {). Have y ;i\vnl((ui the s A. Yes ; o restive tluiu inn H|»' {), In that A. Yes, si I there are a , jiiive seen tin s|ir;iii^ up til {). And of A. Yes, sii (). And hi A. Yes, si tlicy will roll ('}. What a tliev are in t A. The chi very caiitiou ('). So thtt sealH ? A. riie lat iiig seals. (}.. What oHitioii? Yc and longitut tind Heals in you will flm year in the f A. No, sii Mr. Alo> in<; 11 ml H( ui^i'lit yea.n tioii V 'til t Q. And fi Hny modify U H-A UNCKRTAIN CHARACTER OF 8KAL HUNTING. 198 to piiKH I A. Ve8, HJr; I don't like to take cliniiceH in tlioir gutting away, awake. | <^ A"«l one of tlie reasonH you get ho large a proportion isytnii rainiliarity with tbe Imnting of seals, so that you do not Hlioot i f the chances are against your getting a dead seal ? A. Vcs, sir. (). Have you noticed that stiunis suddenly ciuning upwind. iiwiilit^ii the seals and make them restless? A. Yes ; even a small breeze, I think, makes them more rest iv(! than anything else; tlie beginning of a storm com- iiii; up. (»>. In that case they are awakened f A. Vcs, Nir; I have noticed a great many instances when lliiMc are a great nuiny seals in sight in ditl'erent ]>laces; liiivc Ht'cn them every few nnnutos; ami when a light breeze s|)r)iii}j up there \'as not a seal to be seen. (/. And of all those seals in sight you would get no more? A. Yes, sir; they disappeared. i). And have you noticed that a heavy rain will awaken Raiu, miM A. Yes, sir; they will not sleep at all in a heavy nun; llic.v will roll and play. (}. What are the chances of getting seals in sight when tlit'v are in that condiUon? A. Tlie chances are against getting them; one has to work very cautiouBly. <^ tSo that the large catches are made of the sleeping ncuIh ? A. The largest catches are made in calm weather of sleep- ing Hoals. i). What have you to say, Oaptain Miner, as to this prop- Chance ol osition ? You seal in Bering Sea at a given point of latitude finding 811(1 longitude on the 8th of July, we will say, 1880, and you ^ ' liiui Heals in pletity and good hunting. Does it follow that yoii will tind se.'ils at the same season of the year auotber yoar in the same latitude aud longitude 1 A. No, sir, it doesn't. 1^1 r. Aloxjiiidur, whose invostig'ntion relative to fisli- inii Jiiul Heal liuiitin^ in Beiiiig Sen for a period of oijilit yearn makes lii« testitnouy of value in conneC- tinii vvtii the jn'esent Hubjeet, testified as follows: Q. And from your experience, what oouditious would you r., 473, une Ray modify the number of seals taken by vessels! 46. 11 8 13 194 UNCERTAIN CHARACTER OF SEAL HUNTING. Experience A. The Condition of the weather would enter largely into of captaiuit, and the skill of the hunters, the previous experience of and i'U"t- the captain and the executive ability in regard to haiidling ^^^' crews, pariivularly those made vp of Indians, and the cbauces 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 tlie other ves- vicinity'? ^^^*' A. A large number of vessels being in the vicinity would lessen the chances of each vessel taking seals. Weatlier. 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 i)revious 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 endof the gale of wind than otherwise. Take it on the other hand, when seals have been resting for a long time — Iiniglit ' state it this way, that in a heavy gale of wind seals do not sleep very soundly, and i)ossibly will not sleep at all unless ' ; '. they have been tired out by previous exhaustion by a series of gales, something wliicli has interrupted their sleep, but in cases where they have been interrupted by wind and weather they will sleej) under conditiinis wliich they would not other- wise 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 inter- ' fere; that is, it won't interfere with the lowering of the boat, but the chances are itnfavorable for catching many seals when it is raining very hard. Q. Why is A. Because become restU hard to appro {). What w rience, as to t A. It is vai Q. 1 s it vai A. It is. Q. Can yot A. 1 can ill before si)okei tion of it we islands, or th lowered the i nearly all the or two and a the IJogoslotf and a large n in gales of wi # (,). Now I ^ to zones of g( A. I think bad weather. (,). What -v fiiir weather A. There t absolutely ce to 111 1(1 foul stances. (,). Is ther( ill abundanc A. I know (). In you] the same pla A. We foi nam Iter, or e I'ied. (,). j\[r. Al give for the tain time, ai A. Oh, la! tliev subsist il What A. Their medusie, an UNCERTAIN CHARACTER OF SEAL HUNTING. 195 Q. Why is that? A. Beuause the heavy rains ofttimes cause the seals to Kain. become restless. They don't sleep soundly, and they are harl to approach. (,). What would you say, from your knowledge and expe- rience, as to the weather in the sea? A. It is variable. Q. I s it variable in different localities in the sea ? A. It is. Q. (.'an you illustrate that in any way? A. I can illustrate it by a cruise I made in the Louis Olsen, before sjjoken of, during the month of August. A larger por- tion 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 mentioned; 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 iJogosloff 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. (}. Xow 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 w e a t h e r bail weather, i^ones. i). 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 liiid foul weather. They vary according to the circum- stnnces, (). Is there any locality where seals can always be found Chance of in abundance? finding A. I know of none. ^''*^*- (). In your experience of two years, did you find seals at the same place ? A. AVe found seals, but they were not always of the same uiunher, or equally abundant one time as another; they va- ried. '» * * « • ^>. Mr. Alexander, will you stat 3 what reason you would K.,477,line 1. give for the abundance of seals at a certain place and a cer- tain time, and their not being found at another? A. Oh, largely to the migratory species of the fish which they subsist on. (). What is their food! A. Their too*' onsists of cod, in a measure, salmon, squid, medusa', and li .ang 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 think that a large number of vessels in a locality where seals were fairly abundant w'ould have a ten- dency 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 ma.v' be, would have a tendency to frighten them. It does frig 'ten them; they are harder to approach — less easily obtained. Condition of Q. Now, ♦rom 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 o^ 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 flsh in Bering Sea that you have spoken off 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 fol- lows: 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 particu- larly to the difficulty the hunter experiences in ap- proaching a seal and securing it after being wounded, R., 273, line This is self-evident, when the fact is taken into considera tion 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 30. UNCERTAIN CHARACTER OF SEAL HUNTING. 197 boat and the seal having more motion the percentage of those Idlled or stunned by the shot is much less than when the sea is smootli; second, the condition of the seal shot at, tor it' breecliing, the sliot being at the body is not liable to paralyze the animal, though it may bo as fatal as when the seal is asleep on the water with oidy 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 ai)i)roach, in which case the hunter is from necessity compelled to lire at long range. A soeoiid citation from the same document treats (if the difficulty of securing- the animal after it has Ik'cii killed. IJesides those lost by wounding, in many cases others R., 273, line killed outright are not taken, because the specific gravity of ^^• 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 oiig', with which to grapple the carcass, if the point where it sank can be reached in time to do so. Of course, in secur- ing 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 wliei '' •» seal is wounded. The above citations relate particularly to the expe- I'ieiicc of the hunter, and the following testimony is upon the same subject. William T. Bragg-, called on behalf of Great Britain, testitit'd: ii. Now, witness, does it make an/ difference about theR>265,Iine6. catdi of a vessel, the capacity, and experience of the hunters f A. It does. <^ 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. (). What facts that you know of arise, which make a dif- t'eieiice in the catch of one boat as compared with another, excei»t the scarcity or plentifulness of seals? 44. 198 UNCERTAIN CHARACTER OF SEAL HUNTING, E., 327, line 65. A. Well, some hunters are superior to others, aud then, again, it depends on your boat's crew. Q. Your vessel's crew, you mean ? A. The crew of the boat. Q. Of tiie small boat? A. Of the small boat; yes, sir. (^ 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, aud the more ground you go over the more seals you are liable to get. J. D. Warrtni testilied as follows: R., 288, line Q. Does the result of the sealing voyage depend, to any 39. extent, on the ex]ierience of the hunters? A. Oh, yes. Cai)taiii McKiol, testified : Q. Is it an advantage to have three men in a boat? A. Yes, sir. i). And you would not have such good results with two men in a boat ? A. Well, no; three men do better work than two nien. Q. One of tlieiu pulls the boat, one oi 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 j)uller or steerer, or botb, shoot? A. Never to my knowledge. Q. But where there are tliree men in a boat, it gives tliP 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 liave better results? A. Exwtly. (/ai)t. W. K. linker, j^ave tiie folk>\viii'anl to the Mar// Kllcn in 1H86, stiitnl: i). Do results depend any on the <'apacity of tl-e master R., 265, line of a vessel as to his experience in the manner of locating? -"'S. A. It does. Q. And the Captain of your vessel, Daniel McLean, was one of the most experienced men in the business? A. He was. Captain Baker said that the skill of the ('a})tain in k., 728, line suiiic (leoree entered into the probalalities of a catch ill iJcriii"" Sea. ('apt. C. N. Cox jjave the following testimony: (). Is it not a fact, Captain, that a man's skill as a captain ^-.j,"*^^' ^'°® aiul liis reputation depend on the success he has in handling ""■ his crew of hunters and seamen ? A. Oh. yes; to a certain extent it does. (). And by handling his crew with success, you mean raan- ajiiii};' them so that you can get the best results? A. Yes. * * * * * * * . If you once find seals the captain's duty is to keep iiniong them? A. Yes, sir. mil iil mm 200 UNCERTAIN CHARACTER OF SEAL HUNTING. R., 613, line 19. 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 tluH extract in cited in the Argument oil behalf of Great liritain to establish the certaiutv of securiiifi" seals. It is needless to say, in connec- tion with the witness's statement that the seals are found "scattered about," and "three or four, or two" together, "very often one," that the chances he refers to are sufficiently numerous to make the ])robable success of sta/jinfj (uiiong them very uncertain. The capacity of the hunting power of a canoe de- pends in a measure u})on the inimber of skilled hunt- ers it contains. Upon this subject J. D. Warren testified as follows: K., 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 UNCERTAIN CHARACTER OP SEAL HUNTING. 201 it? :uinem irtaiiity ioiiiiec- fils are )r two" reter,s ohable Iiv William D. Hyers that they Averenot .skillful in their use ill the years 'l HSU and 1H87. The witness testitiecl : K.,324,ime9. {). Von were asked something about the difference between white men and Indians, I simply want to ask you this question: In 1880 and 1887 were the Indians in the habit of iisinj,' 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. (i>. At that time which were considered best, spears or guns J A. (funs. The unreliability of the Indian hunters and the dif- ticulty which attended their eni|doynient as liunters because of their ignorance and superstition receive a complete demonstration from the evidence. Alexander Rej)pen, called as a witness on behalf of Ureat Britain, being- questioned as to the reasons for the (iracc leaving Bering Sea in 188G, gave the fol- lowing testimony : R., 307, line 10. (^ xVnd when did you leave the Bering Sea 1 A. We left on the 14th or 15th of August. Q. Why did you leave on the llth or 15th of August? A. Well, Indians wanted to go home. (}. Did they object to remaining any longer? A. They were afraid, I think. They objected to staying any longer. (i>. They were not used to going to Bering Sea, I sup- pose ? A. Xo, sir. Again, at another place in his examination, the same witness said: The Indians don't go out in foggy weather. r., 308, line # • * # #23. Q. Is it not a fact that before you came out it was blowing r., 310, line pretty hard, and that was the reason the Indians wanted to 30. getaway? A. Yes; the weather commenced to be a little bad. Q. Are not the Indians very superstitious? 302 UNCERTAIN CHARACTER OF SEAL HUNTING. A. Yes; they are an a general rule. Q. And if thev want to go away do tbe 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 tlie season was practically ended on the 15th August that year? A. If we had had white men we could have stayed longer. Ca))t. Williiiin Cf>x, relied U[k>ii by Great liritain, gave the toll<>\vin<>' testiMiony: R., 767, line Q. Why did you leave (m tlie l.">th of August? ^- A. The Indians would not work any longer. Q. And you left on the I'lth 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. Tliey 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 tUeir spears uj) and threw their paddles away. Q. Was there anj' use staying any longer? A. No. Q. How was the weather getting when that happened? • A. It was getting better. And ag'ain in dealinji' witli the general question of the difficulties to be met by a ('a})tain who has em- ployed 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 beads was they wanted to go home because of dirty weather? A. Well, as I say, there was one sick Indian aboard ; the Indians were all afraid he would die and be a sort of Jonah. UNCERTAIN CHAKACTER OF SEAL HUNTING. 208 (). They are superstitious about tliat, are they not? A. N'ery. Tlic condition of the seals as aftectinjr the results of 11 \(i\ a<»'e are referred to by several witnesses. Auion. Just tell the Ooramissioners — 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 tlie day is fine enough to put our boats out we lower wlietiier we see seals or not, when we consider we are on the ground for seals. After refeiTin<>- to a single instance when he saw a liniic body of seals off the Columbia River, the wit- iioss was asked: i (i. You never saw any in Bering Sea in such crowds asR., 608, line then) ? 60. A. 1 have seen (luite a number of seals from the vessel, but I don't know that we ever lowered expressly for that purpose. (^ 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. (i. They take them up separately? A. Yes ; one and two togethei- — three. Auain, referring- to the way in which the hunting is ilniic, the witness gave testimony: . They [tlie canoes] circulate about the boat, and whenR.,609,line3. they find a seal sleeping, traveling, or breeching, whatever 111' may be doing, they kill it. A. Yes, sir. (■i. Then tliey go searching for another? A. Yes, sir. . It is a fact, is it not, that when there are a large num- ber 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. Ves; when they are .sleeping, a large iiuniber together, they are much moreditticult together than if sleeping singly. Q. Then it ia a fact that if they are more abundant in the neighborhood of the vessel it is harder to get them t 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 H A. Yes, sir. Upon his redirect exaiiiiiiatioii tlw witnes.s was asked: R., 613, Hue Q. Do seals herd together, as ]Mr. Warr* a suggests? 1. A. I have never seen them that way. R. 613 lino Q. Coming back to the point about the seals being all In a 12. ' herd together, is that the case at all in the mouths of July, August, and September? A. I liave 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 And 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 Seat A. Not in my experience. R„ 613, line Q. Did you ever meet a mass containing as many as 25 31. 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 Brit- ain, on cross-exaininatior was asked if he had made an affidavit, a copy of whicli appeared in the pro- ceedings 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, line I am Sure that I don't shoot at one out of fifty seals that 51- I see; probably not one out of a hundred. UNCERTAIN CHARACTER OF 8EAL HUNTING. 205 Ciipt. \V. K. linker, testityino- as to tlic iu»Mlifi('a-«-^.728, line tioiis Nvliicli iMiter into tlio catcli in Bcrin;*' Sea, stiit«'(l tliiit "tlio seals are wilder stnnetimes than at other times.'' ■ Oiddino- ('. (lerow testified: Von may be amongst lots of seals and not kill any. Ills examination also contains the tollowiny*: R., 1499, line 15. {). You were going to tell us that there were many sealuR., i499, line around the boat and that you could not get any. What ^t- observation have yoti to make about that? A. I w;is merely going to say that you might be in sight of bund: cdsof seals and you couhl not possibly get one. Q. Why! A. ( )n account of the wind, and on account of, sometimes, their travelin j; 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 themf A. Yes. The importance of the weather in determining the siuiess of hunting in Bering Sea is referred to by several witnesses. Alexander Reppen, already cited, testified as follows upon this subject: (i. While you were in the sea were there many calm days? R 810, line 85. A. Not very many. R., 311, line (}. Did you have worse weather [in August] than you did 50. in July? A. Yes. Q. Did your sealing end about the 10th of Aagustf 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. ii. And the good weather did not come? iss**s 206 UNCERTAIN CHARACTER OF SEAL HUNTING. A. No. Q. So you went out of tbe 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 (lid 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 espe- cially ni)on the frequency and density of the fogs which prevail in these waters, is e\ idence relating to the conuiion occurrence of the loss of canoes while hunting'. R., 750, line Ca[)tain Laughlin McLean said that he i)icked up four canoes which had l)een lost from another ves.sel. R., 671, line CMi)taiii McKicl testified that during- his vovage in on i o ^ ,' ~ ISS!) ]u' lost three canoes about the 18th of August. He was asked, "Was that with the men in them, or did they sinijdy go adrift?" and replied: "The men went adrift; we lost them in a fog-." R.,6i5,iiue8. Gustav Hansen stated that during" the cruise of the Atlcl;' in 18S8 \w I(>st a canoe and spent a week searching- for it, and that he was compelled for this reason to cease hiuiting^. Captain W. K. Baker, asked as to the contingencies R., 728, line which enter into the nundjer of seals taken, stated, 28. " The weathe)' for one thing." Q. And rain? A. Win. And t A. Yes, s (,). And tl A. Yes, s (.>. And it A. Yes, s (,). And S( A. Yes, s <.>. And t or a liundre A. Yes. (' apt. Li -■av. ■ the f (,). Youd P.cri ig Sea soali iig, do A No. <.». As a u tiiid seals, t A Note! Sea, next y most this yc <.» If yoi never got a A . Certa mmm UNCERTAIN CHARA'JTKR OF SEAL HUNTING. 207 ,1. l). Warren, after listening' to the testimony of the witness lirag-g- relating- to 188(), was asked: Q. Did you hear the testimony of tlie witness Captain v„,, 284, line IJrajiji, 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. 1 {elating; to the chance of finding- sCiJ;* in abun- (liiucc, the witness Alexander liepp( n testified: (}. Are the seals thicker in one quarter than in another? k., 310, line A. No. 54. (^ It Just happens t'lat you run across a number of seals, and stay there for awhile? A. Yes, sir. Q. And then you go sixty or seventy miles iu another direction ? A. Yes, sir. (^>. And then lie to and send out your canoes? A. Yes, sir. (i|. And then you stay there a day? A. Yes, sir. (). And if the seals are thick you stay there two days? A. Yes, sir. <^ And sometimes more? A. Yes, sir; sometii'ies more. i). And then you pick up your canoes and move off sixty or a liundred miles in another direction? A. Yos. ('iipt. Laughlin McLean, in his cross-examination, ::ii\(' rile following testimony: <,>. You don't mean to say there are any stated courses ui R., 332, line Bering Sea on which a vessel sails each year when she is ^'^- st'aiiug, do you? A. No. ^•. Asa matter of fact, you go at random, wherever you can liiid seals, do you not ? A. Not exactly at random. For in8tance,if I go into Bering Sea next year 1 will cruise around where I saw them the most this year. If there are none there li will ^). If you ha]ii»eu 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. 18. 60. Q. Then you would go where you thought you would have good luck; i8 that it? A. Well, I would i)rospect arouud until I found some seals, and if I tind enough to warrant my staying I would stop. Capt. C. N. Cox, beinjj cross-examined as to the contingencies which affect tlie catch of seals in lierino Sea, testified: R., 608, Hue 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 1 A. Yes, sir. In that portion of the redirect examination of this witness which has ah-eady been quoted, attention is R., 612, line called to liis statement that he considered "the chances are whether the captain stays among them [the seals] and g-ets them or not." Capt. W. Vj. 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 pre- sented in detail with the substantiating evidence, may be briefly summarized as follows : The smallness of the vessels employed; the extraordinary perils of a voy- age to and cruise in Bering Sea; the experience and skill of the master, hunters, and crew; the unrelia- bility 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 eaten, which will be just R., 728, 34. NO DBPINI mmmm !i nil NO DE3FINED "SEALING GROUNDS" IN BERING SEA. The Argninieiit on behalf of Great Britain, in that ]ii)rtion entitled "The character and extent of the stilling' grounds in Bering Sea," endeavors to do away with one (^f the many contingencies that enter into tlu' [troblem of estimating a probable catch. It should tiist be observed that the employment of the words "sciiliiig grounds" is a misuse of language, which has liecome cominon to sealing captains, and has often Well adopted by others through thoughtlessness or i;;ii(»i aiice of the character of seal hunting. The word "urouuds," a])plied to a sea area, conveys the idea, to one not familiar with the occupation of procuring sinlskius, that it })artakes of the nature of fishing iiTdinids, im])lying shoals or banks abounding in va- riinis species of fish, lint in the area of Jiering Sea, where seals are hunted, the charts submitted before tlu' Commission, which give soundings, demonstrate tlijit no such ])anks exist. It is also to be noted in cniineetion Avitli the misuse of the term "sealing mdunds," tJiat there is a similar misappliance of the woYiU "fishing" and "fishery" to the occupation of liiinting seals. That sealing partakes of none of the iniiicipal features of fishing, and that the waters wlicic seals are shot are in no way analogous to "fish- iii^' i tanks" or "fishing grounds," but })0ssess rather tile character of "whaling grounds," are evident to tlidsc who have become familiar with seal life and its destruction. The Argument on behalf of Great Britain attempts to establish in this chapter that there are limited areas ill Hi ling Sea where seals can at all times during the B s 14 ao9 210 NO DEFINED "SEALING GROUNDS " IN BERING SEA. iiumtlis ot" July and Au<>ust be tbund in sufficient abuiulance to warrant this Hij^li Connnission estiinnt- ino- the i)r()bable number of skins which a seized or 3l >ht have taken if her had warned vesse not Ijeen interrupted. Tlie portion is divided into two })arts, the first deahng with supposed h)caHties v*'here seals may be found in abundance b}^ the hunters, and the second attem})ting- to demonstrate hoAV ])lentiful the seals are in these areas. The endeavor is made to establish the firsi propo- sition bv several (piotations from the case of the United States at Paris, which mav he brieflv 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 (juestion 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 Trilnmal. The first of these referred to is a "migration" chart, which, it is stated in the Argu- ment on behalf of Great Britain, "shows that the seals in July, xlugust, and September of 1891 were ' observed by the })atrol vessels of the United States to have been mostly in the ])osition above refeired 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 vessels which patrol ed the sea in 1891, while there is, at page fi02 of the same volume, a suimnary of the data contained in the chart. That it was of necessity conventional in construction and merely suggestive of the sup})osed route of the migrating seals from January until July is apparent from an examinatiou of the data iiiorc, in tl piiov 105, t From the f chart has be the I'nited S This lattt luid is disci The sec( "sealing cl: this chart f placing it ii scattered i 21)0 miles platted, bn indicate th should not seals are in With tlii to rest upo The thir where Ih'i warned in upon the I'nired Sta ing vessels the most neai'cst to invarialdy The fou die Unitec ISST. Tl paratively chart was The fift States sell ii}»i)oars t< NO DEFINED "SEALING GROUNDS" IN BERING SEA. 211 lit' tlu' (lata from wliit'li it was constructed. Furtlier- iiidic, ill the counter case of the United Staios, at piij>v 105, the following- statement aj)pears: From the further data mentioned above, a new migration 3^ ' '°® cliait has been drawn, correcting and modifying the one of the I'nited States. This latter chart superseded the one put in evidence, iiiul is discussed at another ])lace. „ . The second chart referred to is the one termed unel.' ' "sealing chart." An examination of what a])pears in this chart fails to disclose aii}' purpose whatsoever for placing it in evidence. That the seals are thoroughly scattered in Bering- Sea at distances of more than 21)0 miles from the Islands appears from the data platted, but the conventional use of short lines to iiidicate the number of seals counted during a dav should not be misconstrued into a statement that the seals are in bands of that number. With this explanati«>n, the Uniled States are willing ^^^-.^^"^S' 58, to I'cst upon the facts disclosed b\ the "sealing chart." The third chart, on which are platted the positions wlure liritish 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 riiited States revenue oflrtcers in intercepting the seal- ing vessels after their entrance through Unimak Pass, the most easterly of the passes, and therefore the nearest to Victoria and San Francisco, and almost invMriai)ly used by sealing craft when entering the sea. The fourth chart referred to is that of the cruise of fine is! ' the United States schooner Elleti in the season of ISST. The sea area covered by her cruise is com- paratively limited and her catch as shown by the chart was inconsiderable. The fifth chart is that of the cruise of the United une^fo. ' States schooner Annie in the same year. The vessel itpl tears to have never approached within 120 miles I 212 NO DEFINED "SEALING GROUNDS IN HERING l*EA, lir. Arg., 58, lino I.M. Br. Atsx., '>», Hue 2(>. Am. Eep., vol. 7. Br. Ar}j., 58. line 29. Am, Rep., vol. 7. Br. ArR., 58, line 34. Am. Rep. , vol. 7. Br. Arg., 58, liuo 40. of till' I*ril)il(>f Islimds. 'V\w -.WiVA covered in licr cruise, Avliicli lasted forty-tour days, exteuds for 12(1 miles uorlliwest from Akutau Pass and about tlio same dista'jce soulliwest froiu a line drawn from Unimak l*ass to the I'rihilof Islands. '^riie sixth chart is of the cruise of the British schooner Alfred Addiiis, one of the vessels seized in 1887. An examination «tf the course which the schooner look after enterin<>' Herin<>- Se.i, compared with that of the KHcit and the Annie already referred to, shows that the area co' ered was substantiallv dis- tinct and separate from the other two. The .seventli idiart is that of the <'ruise of the Aihi, one of the Ih'itish vessels seized in 1887 by tlie United States, and for which a (daim is made before this Ilio'li ('onnnission. The cruise of this vessel was entirely ditierent from tlufse of the other three schoon- ers referred to. She covered durin<>- the ])eriod from loth of .luly to the 'ioth of Au}^-ust, when she was seized, an area extending' loO miles northwest from Unimak Tass and fully 100 miles west from 164" 30' west h>n_L>itude. The eifihth 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 year 1891 the only coalinj^- station in the eastern pm1 of lierin^ Sea is at Unalaska, in Iliuliuk Harbor. The ninth chart referred to is No. 3, counter case of the United States at Paris, and establishes the same fact. The tenth chart is No. 6, counter case of the United States at Paris, and is of value in showing how far seals wander in search t)f 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 by a vessel in any given day. For example, at 55° 10' north, and 168° east, there appears to be NO DKKINKD "HEALIN(J (MiOUNDS IN HKRING SEA. 213 ;i iii;iss of sciils. 'I'lic Jiroii ('()V(*ro(l ])v tlu!S(; (loiu^on- riiiii;i! (lots is 20 iiiik's loiio- siiul 12 to 15 wido. 'V\w. miiiihcr of (lots is 102, or iiii }i,vi'niument on behalf of (iivat Britain in the following laiif^uage: It sufficiently indicates, as well as the migration chart Br. Arg., 59, lii'st referred to, the comparatively limited space between line i. tlie i)ass of the Aleutian Islands and the Pribilof group, in which seals are found. Reference to the data from wdiicli these charts were^™-^®P^^'°^ prepared, j^'iven in the case of the United States at I'aris, shows that tlie charts only referred to the seals iiiitsidc of Jiering- Sea. There is no warrant for the statement contained in the British Arg-ument as shown liy the data in the light of which the charts must be txamiiied, and there is no o-round for the contention on the part of Great Britain tliat a "stream of seals" exists between the eastern jiasses of the Aleutians iiiiil the Pribilof Islands. Furthermore, the extract from the case of the ^^.■^''|-' ^®' I lilted States, quoted in the Argument on behalf of Great Britain, in connection with the foregoing state- ment demonstrates conclusively that the chart re- tened to seal migration outside of Bering Sea, the •lata from which they were prepared being particii- larK' refeiTed to in the extract. 214 NO DEFINED "SEALING GROUNDS IN BERING SEA. lir. Arg., 50. Sen. Doc.137, pt. l,,p. 52. lit. Arg., 107. Br. Arg., 59, line 25. Br. Arg., 59, line 33. E., 1257, line 15. Refcrences are nuide in tlio opjjosiiio- Aro-umoiit to certain maps i)repare(l b}' Mr. C. 11. Towiiseiul, () miles west of the Pribiu)f Islands, and in August as 120 miles south of the islands; covering, there- fore, an area over 200 miles in length. Uandase, on the Theresa in 1886, g-ives her posi- ^ig^^^' ""® tiou at about 125 miles south-southeast of the Islands. Heppen states that the vessel he was upon sealed »v s/, north., east, and south of the islands. He g^ives R, 3io, line but one distance, «and that 150 miles from the Pribi- lof Islands. .Moss is cited in the Argument on behalf of Great ^^jj^j^^^g' ^*' liritain as to the cruise of the Favourite in 1886. As Ex. No.' 8 the log of the Favourite is in evidence, it is of much ^'^•^•^• 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, 2lfi NO DEFINED "SEALING GROUNDS" IN BERING SEA. R., 671 60. ' covering' an area cxtt'iiding- «>vei' 175 iiiilcH from east to west. R., 526, lino Ujjyiior, Oil tlie Sdn D'n'ffo, Sealed to the south mt] sotdlicdst of the ishmd.s. ^58ri7;]i! ^I^'vt'i', master of the Vdndcrhilf m l.S8(), stated tliat line 47. he sealed to the eastward, itoiilnvard, and westward oi the Prihilof Islands. McKiel, master of the ^[arl| Tai/Ior in 1887, j^-ives no actual position as to his sealing- in that year, although it is stated in the British Argument that lie ^HiieT' ^^' "ument on behalf of Great jlrltain as stating- that "he hunted to the southward and westward of the Pribilof Islands, about <)0 to 70 miles ilistMiit; alter that, a little to the east. The direction was about north-northwest of Unimak Pass. '^Fliis was in 1SS8." A reference to the marginal citation of the Record discloses an error in this summary of his testi- iiioiiy, the witness in fact stating that he hunted "par- ticularly to the southwanl and fcesfirard, and in the latter part of the year to the cnstiranl." His exami- nation shows also that he was speaking of the year Iss!). h'aynor, in ISSJI, gives the ])osition where he was warned as about 100 miles south of the Pribilof Islands, \y. E. Baker, of the Viva in 188f), sealed mostly siiiitli/rfird and u'cstivdril of the Pribilof Islands, and ijistant 60 to 'JO miles from them, but principally Laughlin McLean sealed to the south of the Pribi- lof Islands in 1881), and about 100 miles distant from tliein. I'olger, master of the Penehpe in 1880, states that lie sealed to the icest and east and south and northivest of the Islands. Ihu'kett, master of the Annie C. Moore, gives his l)<»sition for 1890 (or 1888) about 100 miles northwest of the Pribilof Islands. H., 061, lino 64. K., 702. K., 1493, line 22. Br. Arg., 64, line 18. K., 616, line 26. R., 528, line 37. R., 724, line 10. K., 728, line 55. R., 731, line 40. R., 1083, line 11. R., 661, line 30. 218 NO DEFINED "SHALINO GROUNDS" IN BERING SEA. !{., 724, line 10. R.. 726, lino 27. Br. Arg., 64, line :<5. R,, 107!», lino 60. R., 758, line 40. R., 771, line 37. W. K. linker, mnstcr of the Vira in 1S90, sciilcd to i\w. ivfsfinird n\u\ soi(fliw((nlni' tlic Isljiiuls, jmkI J)0 miles distant, and in the latter part of the season from 4ti to tar»'iii('nt of Captain Mclx'an's appears the following' is t'liund: • i). Can you in your ohserviition in st'siliiig, IVoiu IHHli down, tell from the seasons ])r»'(;o528, liuo jplied: art' anywheres from the northeast of the islands up to tile northwest of the islands and to the southivard down towards the Pribilofs." (i>. The Aleutian Islands, you mean ? A. Yes, sir. 60, 220 NO DEFINED "SEALING GROUNDS" IN BERING SEA. R., 1728, 28. R.,1728, 62. R., 1729, 1. R., 1731, 51. Hue line R., 257, 29. R., 1766, 30. R., 1770, 20. R., 1771, 60. R., 1767, 34. R., 1779, 2. lie.sides tliose witnesses referred to, Captain Meyer, of the Vaudohllt, testified as fallows: Q. Captain, from your experience in the years 188!l and linei8S7, do yoii know of any place in the sea where you cau go ill one year and find seals and then return in the following year and be sure of finding seals thero? A. No, sir; I do not. At another phice in his exaniiiuition ap})ears the foHowing-: 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. Yea, sir; I have tried it several times. PTe 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 seab." He was then asked, "You did not trv anv new around at all V to which he answered, "I tried new ground every day." '"* Owen Thomas, a witness sworn several times ou ^'^ebehalf of (irreat Britain, who luid been pilot ou the VmeCarolcnd in the sprinj:;- of" 188G, hunter on the Black y^^^Didiiiond tlie same year on her northern trip, mate of the Pathfinder in 18Tounds are "well known," as as- serted in the Arj^iiment 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. ■Hi NO DEFINED "SEALING GROUNDS" JN BERING SEA. 221 CJotstord, one of the luuiters on the Carolena in 188fi, iiiid iit'terwardn en'ed on other sealing* vessels, was iiskcd, "Do yon think that in leering Sea there is^- 3'^^' ^>°® iiiiv place or number of ])laces where you can g"o as ;i sure thin<>", and <>et seals every year?" — to which he iiiiswered: "1 do not think there is any sure |il;ic('. A;i:ain, replying- to a question as to the certainty of Hvtt!iii>- seals, he answered, "It is certain you will g'et^^--g^^''' ''°° sials, but there is no certainty about tlie amount." A. H. Alexander, already referre, in his direct examination, g-ave the following" testimony: <^ How do yon lind the seals tliere! A. St;attered about. Q. Uncertain gronnds ' A. I seldom find them on tlie same ground. ('a])tain Folg'er, who was sul)])o'"aed bv Great liritaiii and the United States, testilied as follows: 'v>. From yonr experience in Bering Sea, Captain, will youR., 1082, line ^('11 the Commissioners whether or not there is any one place *'^- in Hcnng Sea where you will alvv'uys And seals? A. No, sir; not where yon will always find them. (}. Is there any such place'!" A. The seals are everywhere, according to where the food is; w'icrever the food is, that is where the seals are. 'i>. 1 •o they follow the food 1! x\. Yes, sir. Alexander stated that the seals are practically ^{i*^'^' ""^ surface feeders, and that their tood consists of inigra- torv tish. Taj't. W. PI Baker stated that lie thoi.ght the ""g's!^®' ^"" liuiitinjr grounds changed from year to year. In this R., (513, line 15. 222 NO DEFINED "sealing grounds" in BERING SEA. N( m E., 726, line 60. R., 758, line 45. connection attention is called to the experience ot Captain O'Leary in 1889 and 18U0, already cited. In a statement made before the collector of cus- toms at Victoria in 1892, and which Captp-ii Baker in his examination testified was true, appears the following-; I have noticed also that they [the sealsj o^ n,'* 'a:it ground from time to time, and where you nua thepi this year you may not find them the next. This was very re- niarltable during the year 1890, for the seals were all found to *he eastirard of the Pribilof Islands, while in the former years they were all found to the westward. With this statement the testimony of Captain Wil- liam Cox is sig-niticant: Q. Where did you tish in 1890? A. I was all over the sea. Q. Did you go to the westward of the islands? A. I did, air. 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 wliat year if A. 1890. Q. You eantfhi none emtf A. None. When two such prominent witnesses on behalf of the claimants differ so widely as to the locality where seids could be taken in 1890, there is but one concki- sion to be drawn, that there is no persistency in the abundance of seals in J,ay sea area even during die Br. Arg., 60, sf"»i<^' season. Alexander Rejjpen, a witness relied u})on by Gi * Britaininconnection with this (piestion of the locality where seals are taken, testified as follows : line 47. R., 309, line 34. Some days we found lots tf sols and ao.ae days none. Q. Right in the same place? A. At diflerent places. Wc never s*^upped in one place all the time. (I Are 1 A. No, g yuii stiiy. ('apt. ] mony: Q. If yc never got A. Cert; Q. Thet A. Well aiul it' I fc ('a})tai veai's ha l-'rom that the Ideality i raining f iii!• of cus- ■A Baker >0'irs the lii^r ( tbis as very re- e all found the former )taiii Wil- NO DEFINED "SEALING GKOUNDS" IN BEKING SEA. 223 •belialt" of lity where le coiiclu- icy ill the luring- the by Gi ' •e localit ■ 8 none, one i)lace il {). Are there auy particular hunting grounds in the seafR-, 310, line A. Xo, sir, 1 do not think it; wherever you find tlie seals ^^• you stay. ('iil)t. Laug-hliii McLean gave the following- testi- iiudiy: (}. If you happened to get some seals last year where you K., 332, line never got any before, would you go there this yearf ^7. A. Certainly. Q. Then you would go where you had good luck ; is that It? A. Well, I would pvosf^ct around until I found some seals, and if I found enough to wurrant my staying, I would stop. ("iiptain Raynor stated tliat he never in successive R., 524, line veins had found seals in the same place. ^' I'Voui this sununary of the evidence it is apparent that tlie sealing vessels are not confined to any given Ocality in their hunting voyages, unless an area con- faiiiing fifteen or twenty thousand square miles can Ia' considered a definite "sealing ground." A refer- •nec to the evidence given shows that seals were «< >.' every year, from 1886 to 1890 inclusive, north, ■ '':'■, cast, and ivest of the Pribilof Islands, at dis- ;;^ I s ranging from (50 to over 200 miles therefrom. i '(• Mtteiition of the Commissioners is particularly cMliiii to the Townsend chart for 1894, and tlie "seal- iuji" cliart. No. 4, of tlu case of the United States at I'firis, both of which were jdaced in evidence by 'ircjit Britain. Tlie testimony and the charts demon- strate that tlie area where seals are hunted in Bering Sea extends from 165° to 175° west longitude, and tVnm 58° to 59° north latitude, contahiing from 140,000 to 150,000 square miles, equal in area approximate! if to 'i'c ''orth Sea. The Argument on behalf of Great liritain sums up H""-. Aig., 65, tlic evidence relied U})on in the following words: Having established that the sealing grounds in Bering Sea are well known and easily defined, it is proposed to point liow plentiful the seals were in those sealing grounds. 224 NO DEFINED "SEALING GROUNDS" IN BERING SEA. Br. Ars., 65, f^) line 32. tt 18 as fittinji: to term the entire expanse of tlie North Sea a "fishing- gTound" as it is to term these waters "seaHng- grounds;" and it is a significant fact ' * Great Britain fails to define the assumed locality ' eal abundance. riie second portion of this part of the Argument under consideration deals with the abundance of seals in this area of 140,000 to ir)0,000 square miles. During the morning session of the High Commis- sion on December 2, 1890, there was read into the record on behalf of Great Britain a de})osition of J. H. Douglass, the revenue-maiiue pilot, already referred In that ap})ears the statement which is quote'l in the Ih-itish Argument showing that the seals "are at all times very plenty between Unimak Pass ami said Islands, in a track al)out thirty miles wide, which seems to be their highway to and from the Islands." The picture of a "stream of seals" 30 miles wide, extending through [Jnimak Pass, and tlience for 180 miles to the Pribilof Islands, suggests many possi- l)ilities and certainties attendant iqxni the occupation of seal hunting. 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 liering Sea. Lying-to, at the entrance of the Pass, their boats, with short inter- vals between them, extending like a chain from shore to shore, it seems as if the avarice of tlie sealer and his exaggerated ideas of profit might have been fully realized in the slaughter of the migrating animals, '^riie 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, authentio evidence, such as should receive consideration by this High Commission, is denied by the United States. Two weeks after this deposition was ofi*ered in evi- NO DEFINED "SEALING GROUNDS" IN BERING SEA. 225 (leiico, in the redirect exainiuation of the witness Clar- ence N. Cox, the following questions were asked: R., 613, line Q. Do seals herd together, as Mr. Warren suggests? A. I have never seen theui that way. Q. As a matterof fact, are the seals you get scattered about here and there? A. Yes, sir. Q. Coming back to the point about the seals being all in r., 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 And the seals then ? A. Scattered about. Q. (Jii certain grounds? A. 1 seldom find them on the same grounds. Q. How many will you And together as a rule? A. Three or four; two; very often one. i). And this idea of large herds, with watchmen to keep the pt'lagic sealer oil', is there anything of that kind in Heriug 8ea? A. Not in my experience. Q. Do you find them in larger bodies on the southern coast ? A. Yes, sir. (}. 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 tweuty-flve seals together, and that sort of thing, does that apply to Bering Sea? A. No, sir. Q. Did you ever meet a mass containing as many as twenty- five seals close together in Bering Seal A. No, sir. Q. You meet them in scattered numbers? A. Yes, sir. The position here assumed by Gre.'it Britain is dia- metrically opposed to that taken when the Douglass deposition was urged upon the Commissioners. From the time of the examination of Cox, up to and in- cluding the last day of the session, on February 2, 110 more evidence was offered on the part of Great Hritiiiu to establish this "stream of seal«>," and no other lefereiice is made to it until it aj)pear8 again at this time B s- -15 226 NO DEFINED "SEALING GROUNDS' IN BERING SEA. NO 1 in the Argument. But few references to the Record need be made to show there is no evidence to sustain the })Osition assumed anew by Great Britain, as the Br. Arg., 66. citations whicli are relied on in the Argument in no particuhu' sustain the opinion of the witness Douglass or hel]» to establish the contention that there is any well-defined locality where seals are found in such abundance as to insure a certainty of profitable hunting. B'. 310, line ^''jjg witness, 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 ocnds out her canoes and stays there a day, and, if the seals are thick, two days, and sometimes more; and then, })icking up the canoes, the vessel moves off 60 or 100 miles in another direction, covering the whole sefi about the islands. The witness, Charles E. Rayiior, testified as follows: R., 535, line q jjj looking for seals out there, you have to take your vessel arounrl the various parts of the sea to come across a bunch of seals? A. Yes. Q. You 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, already referred to, gave the following testimony: ^■45.^' ^^°^ 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. So, sir. Q. They take them up separately? A. Yes, on Q. The ca Which do yo A. I have Q. They ci seal sleeping I doing', they i A. Ves, sii Q. Then tl A. Yes, si] Further lueiits on tl Hiji'li Comi deny that tl territorial \ the Pribilo all times ab basis tor ca thiit within square mik suiuiner im iiig' their fo time contei seals are st Pril)ilof Is] may Ije su catch. mmm^ NO DEFINED "SEALING GROUNDS" IN BERING SEA. 227 A. Yes, one and two together — three. Q. The canoes or boats, whichever you may be using. Wiiicli do you use ? A. I have had canoes since 1892. Q. rhey circulate about the boat, and when they find a seal sleeping, traveling, or breaching, whatever he may be doing', they kill hhu1 A. Yes, sir. Q. Then they go searching for another? A. Y('S, sir. Further reference, in view of the foregoing state- iiK'iits on the part of the witnesses swoni before the lYv^h Comniission 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 tor calculating a proljable catch. They admit that within an area, including from 140,000 to 150,000 si|Uiire miles of o[)en sea, seals are found during the suiuiner months and that they are killed while seek- ing- their food over this expanse of waters, at the same time contending that this large area over which the seals are scattered, itorth, east, south, and ivest from the Piihilof Islands, forms no basis for any formula which nui}- Ije suggested for the computation of a possible eatcli. DURATION OF THE SEALINO SEASON IN BERING SBA The case of the United States in answer to the claim for damages, measured b}'' 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 by nature and the unsurmountable difficulties encountered in the busi- ness 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 seal- ing season in Bering Sea, in the Argument on behalf of Great Britain, however, bears upon the time that the owners of the vessels, Avarned from continuing their voyages and not seized and condenmed, were deprived of the use of their ships. The extracts and citations of testimony from the Record and the con- clusions drawn therefrom in the British Argument, relative to the sealing season, are violently at war, the one with the oilier. The voyages of many of the vessels are shown in the extracts from the evi- dence, carefully collected, to have terminated between the 20th and 25th day of August, but the conclu- sion is drawn that the season extended "well into September." Again, at page 69 of the Argument, line 20, a state- ment is made of the latest voyages 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 averajj^e (liivctly involved in this controversy. Tlie (lute for the termination of the voyages of the vessels iiained in this statement, which excludes nine vessels (lilt 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 wliicli the various vessels left the sea. The conclu- sion, however, is drawn: "It is therefore established that the habits of the seals and the weather ordinarily prevailing would permit the vessels engaged in seal- ing 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 [\\\x witness showing that a longer voyage was ever made, and in fact no such testimony could be refeiTcd to, the final conclusion is drawn that it has been "determined that they would in each case have con- tinued sealing under the favorable conditions of British Arg., weatlier proved to have been existing until as near die end of September as wf)uld have been necessary to accomplish a satisfactoiy catch." The supposition Tnight fairly be made that the tennination of the sealing season, without any foun- dation in evidence being fixed "as near the end of .September," would not be again removed to a later time. Ill the statements appended to the Triumph^ Argument, 148; Ariel, Argument, 151; Kate, Argu- ment, 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 exj)iuidedto October 1. riie United States contend that the testimony in die 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 claim- ants bearing upon the duration of the season, except 230 DURATION OF THE SEALING SEASON IN BERING SEA. BVRA in tlie indirect way of examining witnesses as to the time tor which a vessel was OHt/itfed. Tlie answer to a ({nestion of that natnre furnishes no definite information as to the last day that huntinif 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 dvration of the hunting- season in Bering Sea given • by captains, mates, or Inniters on vessels whose voyages were not interrupted or interfered tvith, 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, " 1 88H was the first year then of any note in Bering Sea." The evi- dence 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 be- The Argument on behalf of Great Britain, concern- B., p. 79^ iug "Method for computing the estimated catch," line 16. contains the statement: R., 252. Exh. 27, B., CI. Exhs., 43. E., 266, line It is contended by Great Britain that in 1886 the Mary Mien is the only vessel of which it can be stated with cer- tainty that she couii)leted her voyage without interference of any kind. G. William T. Bragg, called on behalf of Great Brit- p'ain, was examined relative to the voyage of the Marji Ellen in 188(5. He gave a detailed statement of the catch. The last hunting day was August 24. On cross-examination, he said: Q. The 2ith of August was practically the close of the sealing that year in Bering Sea, was iti 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. Q. Why ( Auji'ii«t» 188 A. Well, commences 1 latter part o wester abou (,>. And w September t A. I neve q. And y that late in A. No, I ( (). I belie long as you of any seizu A. Not tl Andrew Britain am mission, te Saiiimrd, 1 day that t hunting sc Eiuile I relative to 1886, said (I Andl A. If I r€ <,). Why I A. I don' On cros (,). When A. What (,). In 18i A. Well, pnibably a Q. Then A. The ^ wasn't verj Alexain Britain, t( Q. Did 5 A. Abou ma DURATION OF THE SEALING SEASON IN BERING SEA. 231 {). Why (lid the season close* on or about the 24th of AufiiKst, 1886 aud 1887? A. Well, coining on the Ist 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 north- wester about the last of August and steer for home. (). 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. No, I did not. (). I believe you said that you stayed in Bering Sea as R-, 267, line long as you desired, and that you did not come out because ^*- of any seizures in 1886? A. Not that I was aware of. Andrew D. Laiiig, examined on belialf of Great Rv 270. Britain and himself a claimant before this High Com- mission, testified relative to the voyage of the W. P. Sdi/iimnl, 1886, and said that August 24 was the last Rv27i, lines. day tliat the boats were lowenid for the purpose of hunting seals. P^inile Randase, called on behalf of Great Britain, relative to the catch of the Theresa in Bering Sea in R.. 299, line 17. K., 300, line 47. 18Hf;, said: il. And how long did you remain in the sea sealing? A. If I remember right, we left on the 35th of Atigust. (). Why did you leave on the 25th of August? A. 1 don't know. I suppose that was the end of the trip. On cross-examination, witness said: Q. When did you stop sealing in August? A. What year? (,). Ill 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 Re])pen, called on behalf of Great R., 306, line Britain, testified that he was on the Grace in 1886: (). Did your sealing end about the 10th of August f A. About that I think. . 232 DURATION OF THE SEALING SEASON IN KEKINO SEA. DUR/ K 311 line Q- You weut out of the (sea Oil the i5//t o/>lMfjfH«^/ '52! ' A. Yes. Q. You stated that you were there several days waiting itor good weather, did you not? A. Yes. Q. And the good weather did not comef A. No. Q. So you went out of the sea ? A. Yes. Q. Was the bad weather that season the reason why you left the sea? A. Yes. Ke])j>eii was the only witness calletl wlio was aboard the Grace in 188fi, and liis m \ce oiil- wei<'lis the j>eiieral statement of Cap^ Varreu that his vessels were outfitted lor a v(>va«»e until the end of Repteiuber. R.,^377, line j„i,ij Qotsford, called on behalf of the United States, relative to the voyage of the Carohna in 1880, said: Q. Do you know anything about what the time Cai)taiii Oglevie, or did you hear anything about the time he was . preparing to leave the sea? A. Somewhere about tlie 20th or 23rt( of August,! believe. (Captain Oglevie had told him.) British itishAgr., Jjimes Muiiger, called on behalf of Great liritaiu, to. ' "^relative to the voyajj^e o^" the Carolena in 188(1, is cited in the British argument as saying': p 40, E., 636, line E., 1728, line 16. In the sea the captain talked of going home about the end of the month (of August). Cross-examined, this witness saio : Q. Will you swear whether they saiJ "about the end 0* the month" or "the 20th of August?" A. No. Q. You could not say which? A. No; not as to date. Peter C. Meyer, called on behalf of the Unite^i States, testifying relative to the voyage of the Van- derhUt hi the years 188(5, 1887, and^l888, said: Q. How did you find the sealing between August 20th and the end of August? A. I'rom 1 (I, Yes. A. Well, pay in stayi (}. What A. 1 was gave it a tri (,». In yov good sealing A. No, si The wit 2()tli and i posit ion to Capt.W a witness c Q. How 1 did you exp A. I inte ^rhe wit li; conseq vear in th ('a})tain v(»yiige of Q. For hi you expect A. I exp September. i}. As a A. I left The wi to testify latter ])ar' Fixhibit discloses 1 the •_>4tli the 29th, mnking r sa"'!' of Sen. l)e even the DURATION OF THE SEALING SEASON IN BERING SEA. 233 A. l-'i'oni the 20th of August to the end of the month ? (^ Yes. A, Well, 1 didn't find much in it. There was not much pay ill staying that time. (,). What did you stay for? A. 1 was there to give it a trial, and 1 stayed there and gave it a trial, but I found it didn't pay me. <,►. In your experience in 1886 and 1887, you did not And good sealing between the 20th and Slst of Avy .ist t A. Xo, sir; it was not good sealing weather. Tlie witiieHs liad been in ]k'rinj>- Sea between the ^•jT^'^^^' ^^* 20tli }iu(l Slst of August in 1886; tlierefov was in a position to testify concernino- tlie actual conditions. Capt. Wni. O'Leary, master of tlie Pathfinder in 1886, t^"^> ""e 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 Auj^ust (!; consequently he had no actual experience that yoai- in the sea after the 6th of August. Captain O'Leary was examined relative to the^'^^^^^' ^'°" voyage of the Pathfinder in 1887: (i. For how long were you provisioned and what time did }'ou expeirt to stay there? A. I expected to stay until September — about the Ist of September. (i>. As a matter of fact, how long did you scay in the seat A. 1 left on the 17th of Anyust. Tiie witness, therefore, was again not in a position to testify as to the actual conditions existing in the latter i)art of Augast. Kxhibit 27, <^. B. Clahn No. 1, Exhibits, page 43, discloses that, although the Mart/ Ellen ceased hunting tile 24th of August, she did not leave the sea until the 29th, the intervening time being employed in iiiaklng ready for her return voyage and in the pas- f*age of the Pass, through which she left Bering Sea. Deducting five days from September 1, and even the test - ony of Captain O'Leary regarding 234 DURATION OF THE SEALING SEASON IN BERING SEA. DURj what he nitemled fixes the close ot" the liunting season 770 r '^^ "^ nuHst :3'}. 'I3. ' This witness was ex.arniiied relative to a voyage in Walter L. Rich 'ml^m-. il. How late in August did you leave ? A. About the 25tli of August, as far as i remember. Q. You uever were in thure later thau the :i5th o/Aiigustl 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 years 188<> and 1890, was never in Bering Sea later than the 'iotli of Augnst. redacting the usual time required to make the voyag-e 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 ilk' ,. • largest fleet of vessels hi Bering Sea in 1886, ex- amined on behalf of the claimant, Is cited in the British Argument, page 70, in su])}>ort of the conten- tion that the sealiim" season in ihe vearl886 extended to the end of ► September: K-^^908, line Q, ix\ 188G, taking the supplies you had on the vessels you have mentioned, how h)ng did you arrauge for tlie cruise, a cruise of the various vessels in youi lieetf A. My intention was to have stayed in the sea until about the end of Septc. uber. This witness might reasonably be expected, when the general character of these claims is considered, tc testify to a prolonged hunting season, but irrespective of his prejudir'es, the fact is disclosed by the record that he was never in Bering S^a after the 20th of August, and that the captains sailing thr schooners of the fleet in the year 188<) all sto[)ped huntin;;- before the 2.')th of August. Laing, mate ox the Sai/wanh managed by Wan'eu, states the last sealing day was Autfust 24. 66. Alexand her sealinj she was i weather. Cai)tain to the fleei Q. So thi fitted until A. I am when I left (,), And ^ A. Well. Sea. Thes boitnl to ke Q. How ] xV, As loi (,). Did y 1K8(>? A. 1 did. Q. And 3 A. Yes, {}. How A. Until and came tl The cai [lusitively as his Tefti tlieirs upo l)e given 1 The wil testified : »,>. Xow, the sua at 1 A. in th (,). Did 3 iiij;- Sea to A. Ill th tlicrt! was (,>. Vou A. The <,►. Can Bering Sei A. 1 doi DURATION OF THE SEALING SEASON IN BERING SEA. 235 Alexander Reppeii testified that the Grace ceased ^•-^n, line her seahug voyage on the lotli of Aiofusf, and tliat she was not warned but stop})ed because of bad weatlier. Ci4)tain Olsen, saiHng the Anna Beck, belonging ^-gg^*^^^' ^^^ to the fleet managed by Warren in 1886, testified: Q. So that you would not be positive that you were out- fitted until the Ist September? A. I am positive that I was outfitted until Ist September when I left the west coast. (.). And you made arrangements to hunt until what time ? ^"'j, ^*'**^' ^*°* A. Well, as loii^ as 1 thouglit flu to stay in the Bering Sea. These were my orders. I had enough supplies on board to keep me there until the beginning of September. (^ How long were you instructed to stay there? A. As long as 1 thought reasonable to get skins. (}. Did you tit out this same vessel the year before, viz, ISSO? A. Idid. Q. And yon fitted l^er out in the same way ? A. Yes, sir. ' (^ How long did you remain in the sea in 188G? A. Until the 19:it Amftint, and then I started for the pass aiul came throui^b on the 31st. The cajitiiins on thi'ee of the vessels of this fleet pusitivt-ly contradi''t Captain Warren, and inasmuch iis his Testimony wna l)ased upon a supposition and theirs upon actual experience, but little w io'ht is to he li'iven to his statement. The \vittM?«8 himself, however, on cross-examination, K-- '^s^, lino testified: ',). Now, you say your schooners were all fitted out to leave the sea at the end of September? A. [ii that neighborliood. (). Did you ever know a sealing vessel that stayed in Bev- iiifi' 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 <»>. Voii did noi i)egin to enter Bering Sea until 188 ^''""^ Great Britain, testified relative to the voyage of the i 244 DURATION OF THE SEALING SEASON IN BERINO SEA. B.,711,liue4. R., 723, line 48. R., 724, lines. R., 1940, line 34. R., 770, line 3.J. E., (377, line 43. R., 757, line 49. E., ll?<6, line 40. R., 61(), line 47. E. B. Marvin in 181)0, and said tliat the last day df Iiiintiii}^' was the SOth or o*/.s/ of Aitf/usf. Cai)tain Louis Olseii testified that the Jiianlta left the sea "tlie 2iid of September." He coukl not state the hist lumting- (hiy. Ca])tain W. JS. Bjikor testified rehitive to the vov- a<^e of" tlie Viva in the year 1890, stating tliat he took seals eight days in September; that he remained in the sea and that his last sealing day was the Jj^th of Septcmhey. Ca})tain Siewerd, whose testimony was not takeu in court, but whose statement was taken, said tliat he left the sea on the 0th of September, in 1890. 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 26th of Auf/ust. AVillinni G. Goudie, testifying relative to the voy- age of the Sapphire, in 1890, said that they left the sea on the 17th or 18th of August. Captain Cox testified he left xVugust lotli. Herman Smith, testifying in behalf of Great Brit- ain, said that he was on the KatJierine in 1890, and left the sea on the 81st of Aufjust. Gustavo Hansen, master of the Allele, testified that he left the sea the 12th of Aufiust. The testimony shows that but three vessels actually sealed in liering 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 pick- up of seals. The Vim, in 1890, which took 370 seals in September; and the Sea Lion, in 1890, which took "about 300 seals in September." The total number of seals taken by hunters who DURATION or THE SEALING SEASON IN BERING SEA. 245 (stilicd on the witness stand at Victoria anionnted to ueiirl\' 78,(>0(), The total number taken in Sciiteni- lii-r was 730. Tlie proportion taken in the niontli of S('])t('inl)er is as one to one hiUKh'ed. Tlic I'nitetl States contend tliat there is no fact in the iu'cord so firinl}' estaldislied as tlie fact that tlie tcniiiiiation of profitable seal hunting in Jierin'uiiit'iit on belialf of Great liiitiiin entitled "jMethodforConiputinfj^ tiie Etstinuited Ciitch" possesses tin oriffinality whicli n)akes it uni(iue imionj^ the fornudiv wliioli have previously been ciiiployed in dealing- with the subject of proba- liilitics. While the I'^nited States insist that "pros- pective profits" can iiot be allowed in any event, iiiid furthermore that the continj^encies which neces- siuily appertain to seal huntin«»' precliule tlie results tVom becf)ming' a legitimate field for mathematical (lenionstration, the method for computation proposed is s(> extraordinary, so unjust, and so unreasonable, tliiif it can not be passed over Avithout comment. In brief, the scheme advocated is this: to take the ("itch of the schooner 3f(Uij Ellen in 1S86, which tiiuk in that year the laiy/cst timiihrr of .skhis ever taken 1)1/ ami vessel in Berinf/ Sea of which we have t'vidonce, and calculate from the data of the voyage hnw many seals were secured on tiie average by one of lu;r hunters during the period from the date of the seizure or warning of the vessel, for whicli the catch is being computed, to the 24th of August, the day when the Mary FAlen ceased hunting. 11 le scheme is complicated by a cahndation of prob- iihle liunting days, which makes the method more in\ (lived without affecting the result; for example, in tile case of the Carolena, given in the Argument to demonstrate the application of the system i)rop<)sed, it is stated that 5 boats on the Marij Ellen were in the soii 24 days, which would equal 120 days for 1 boat; 247 24S ESTIMATED CATCH DISCUSSED. that the " l(>\veriii, is su])ertlu com[)licate aiid mystify. Strippetl of its supei+luoiis factor, the f<>rinula pi-ojM»»*ed in the Arjj^uinent is this; The catch of the Mury EJlcti, J'roni the date of seizure (or uuirtilnff) of the sehiHuter fa Anf/nst :J4, di- vided bji the iiiunber of hoata mi the Marij EJleti, times the numh^r of days f rota the date of .seizure (or iraruiiiii) of the schmifrr to Auf/usf ^-^, and nndtiplied hj the numlter of boats (or canoes') (m the schaot/er times the number of daifs frotn dnte of seizure (or irani- infi) to tl}:' j»resuiii(dt/e close of the season, equals thr proliable mtck of the schooner . The fiicts. which it is necessairy to assume in order that this method of calculation may be applied, are so numerous, and at the same time so uncertaiu in themselves, that it is difhcult to understand how such a niathematical sctlieme coidd have been sug'g'ested to the High ( 'ommission as a means of determiniuo- ap])roxiniate certainty. "^Phat these assumptions arc recoj^nized in the Argument on liehalf of (ireat Hritaiu m shown in the illustration they ;i'ive of the applica- tion of the^ir fjnnula. The Argument says: Br. ArK., 82, If these four men fhuiiters on the Caroleiui] had been irort iufi in Ncaiinff iratrrs ihniiifi the irhole of Aufintit, iceather (tnd other comliiions luiiif/ similur 1o thai tuyperieneed hy tlie Mary mien, tin' total would h*'. (Mc. These aHsumpTion>as to the duration o^ the seaHn{j "^ovaye in Bering' Sea, the universalit\' of weather in line 13 liiffen'nt i» iiin' xcssel selves pro surticielit ( licture the ;ir niiothei witli in th lit" the sea ill liering limiting," ( )n revi no atteni) (ircaf Hri du' seasoi ;nva in w iiictho this poin tain Mel The W tc-iimon <>. Wh i'omi»ariit ESTIMATED CATCH DISCUSSED. 249 iie catch uld liave nioe; the Cnrolena. ii' days, le result, ive I teen a kino- it tends \u pei-tiiums It is tins: >/ .scizurr i ^4, di- Icn, fime.s Irani niji) fip/ied hif or mini- quais th ill <»r(lei' >li('(l, are ertaln in low .such i^ested to 'riniiiiiig- ions are t Britain a])[)li('a- een irorh ither (did the Marji sealing ith liitlei'ciit ])arts of the waters t'retiueiited by the seal- iiirol)al)ilities, mid ko |)rol)leni{itie as to demand sufficient demonstrati* >ii of their apjiroximate certaintv lictorc tliev can he enijiloyed as a basis for arrivinti' ;ir another jirobability. They have been fullv dealt with in this Argument under the titles of "Duration lit' the seulin«>' seaaon," " No defined sealinji' o-romids in Px-rino' Sen," and "Uncertain character of seal huntinj^'," to which reference is here made. I )n reviewing these assunn)tions, to establish which 11(1 attempt is made in the Argument on behalf of (ireaf Britain, except in relation to the duration of ilic season, the abundance of seals, and the limited urea in which they are found, yet without which the method propo.>ed c.n not be apjilied, it is apparent the ramilications of these proba})ilities are so wide that there is not the slightest liasis upon which to tniiiid tlui formula proposed in the Argument on behalf lit' (Jreat Britain for a computation of an estimated i"itch. The following statement appears in the Argument >virh(..;t marginal reference to the Kecord: It is shown tliat boars took about one-tbird more than an Br. Arfr . 79, •'qiial luuuber of canoes. lino tt. An exiimination of the Kecoi'd fails to discdose upon^-'^.^'.^i^",'?''" uliat evidence tins statement is l){ised. there are 65. !!uinerous witnesses who testify that a boat is su])e- 31* "' '"° rim- fttr seal huntiii'i- to a canoe, but evidence of a R-, 72it, Hue ratio between them is altogether lacking, excejit that lit two witnesses, who make definite statements ui)on this point, viz: (Captain Alexaiuler McLean and Ca])- taiii .McKiel. The former in his examination gave the following te-nmony: <,>. What in your judgment, from your experience, is the 11., 424, Hue I'oiiinarative value in He»i!:;<>' of canoes to boats! ^* 250 ESTIMATED CATCH DISCUSSED. A, It will take more than two canoes to compete with a good white hunter. Q. You mean with Indians in it ? A. Yes, sir; I have found them to be so, and have heard it from other vessels. Of course there are exceptions. Q. Name the exc'e])ti()ns. A. Some vessels with Indian hunters nmke very large catches. Q. Is that because of the skill of those Indians? A. Yes, sir. Q. Those are exceptions, are they not ? A. They are. The answer of Cai)taiii ^LcKlel to a question relat- ing- to the pro})ortionate liuntinj^'- power of boats and canoes was as follows: R.,_329, line Well, I can't say ; but I think six good white hunters would ^^- be equal to ten canoes — the average canoes. Q. You are now compiiring white hunters with Indians in canoes? A. Yes. No witnesses were produced to contradict these statements. Althoug'h there is no attempt to establish the asser- tion in the Arj^ument on behalf of (Ireat liritain, find no other reference is made to the subject, it is of tlu^ greatest importance in any attempt to reach a basis from which to calculate a "prolmble catch," for of all the vessels for which chiims nre made for such eavn- ing"s before this Hi<»-h C'onunission, but four — the g-'-''.;yiue8. T//orw/oM in 1886, and the Trium/)h, rath/inder and 39." ' Ariel in 1889 — employed sealino- boats with wliite ^■,'..'^^^' ^"^® hunters. In the case of the Carolcud canoes were R., a29, lino used, and althouah the Ar<>"ument on behalf of (ilreat liritain assumes that two white men in a canoe are e(pisd to three in a boat, all the evidence which is worthy of consideration tends to disprove the assump- tion. Ketm'niug- to the fornuila projxised, h^t us a])i)ly it R., 2S0, Uue})v substitutiuj4' in place of tlie Mar// K/li'ti. the Tliorn- R., 842, linoton. The latter entered the sea on July 2, 188<); was is. ESTIMATED CATCH DISCUSSED. 251 ite with a ive beard )n8. ery large on relat- oats jiud era would ndians in ct these le fisser- \mn, jiiid is of the, 1 a basis or of iill ell ojirii- >ur — the der aiid fi white es were »f (ireat noe are 'hic'h is ISSUIllj)- ijiply ir Tliarn- K)'; was t'ized Aiig-ust 1. Slie carried four liiiiiting- boats with , J 932 u^g ////vv men in a boat, and her catch up to tlie time of i''- seizure was 403. As it nmst be assuiiied in the Aro-unient on belialf '( Treat Ih'itain in co]n|mting' the catch of the Thorn- ton by the proi)osed method, tliat her hunters were as expert as those of the Mari/ IJUen, and her fortune in fiiidinn- seals equal to that of the latter vessel, the same iissimiption is adopted for the purposes of this Arg-u- iieiit. The average catch per day for each hunter ifii the Thornton Avould be for the thirty days she was sealing, 3.3f>. Ap})lying this average to the extension of the Caroh'mi\s voA'age, as presumed by the Argument on behalf ot Great Britain, her catch would be 417 seals. It may be argued that it is not ii just comparison, from the fact that the hunting of the Thornton took place in July, while the operations (it the Marij Kllcii, on which the calculation is based, were in August. The il/rtr// 7!J//t'w in thirty-four days I 111 or to August 1 took 1,437 seals, while in twenty- air days in August she took 958, the daily average in July exceeding that for August. If there is any iid\antage, tlierefore, it is in tavor of the Carolena. Another fact, to which the attention of the High ('(•lumissioners is called, is that the daily average of a hunter on the Mary KUen in July w^as S.41 seals, ami for a hunter on the Thornton was 3.36. As a further test, let us substitute the W. P. Say- ininl for the Mary Ktlen, It is stated in the Ih-itish Argument tliat the record nne^^.'s.' • it' the W. P. Sayiranl is incom])lete, but an examina- 270. tioii of the testimony of Andrew Laiiig discloses rliat the data furnished by him is suflicient for the purpose of computin>.r and estimating a catch by the method ])rop()sed, as we have shown that the data in I'l'Liard to "lowering days" are superfluous. l''urthermore, there is no evidence before the High Commission showing that the W. P. Sayward was Ma 252 ESTIMATED CATCH DISCUSSED, E., 1098, 17. E., 271, 8. E., 1098, 12. E., 710. 28. E. 172.5, 8. iutorfered witli during lier cruise, and Lain<>', her mate, and a witness sworn on l)elialf of Gh'eat Britain, was not (juestloned on this ]ioint. !"'« It slhuild also be noted tliat tlie last "lowerinji;" of tlie W. I*. S(()/irar(l was the same dixy as tliat of tlie 2\Iari/ Elh'u. Tlie former in die year 1886 oar- ^'""ried eij^-ht canoes. ITci catch tor the iirst tweiitv- liuefour da3's «;f August was 512. The average dailv catch for one canoe during these twenty-four days was, therefore, 1.81)7. Assuming for the sake of argu- lULiut, and for the purj)Ose of comparing this l)asis with the one employed h\ Great Jiritain, that the CV((>'ofc»f? would have sealedthe entire month of August, we would have an average catch dunng that month for each canoe of 57.8; and the four canoes used hv the Garolcva would have taken 231 seals. Again, let us take the W. P. Sai/ivard in 1889 as a basis in place of the Mavji FJIcn. She entered the i'"«sea that A'ear on Julv 7, and lowered last on Aiijj-ust 18, a i^eriod 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 days, the time claimed as the intended voyage of the Carolei/a, would at this ratio have taken 10<) seals, and an estimated catch for the Cdfolc Nil's 4 canoes would theref(^re be 400. line Take the same vessel in 1 890. 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 lier 8 canoes had, therefore, a daily average catch of 1.024 skins, and for the thirty-one days, assumed as the duration of the Cardlaia's voyage, the 4 canoes of the latter schotmer would have taken 128 seals. On the basis, therefore, of the W. P. Saijirnrd for the three vears 1881), 1889, and 18!I0, we have, by adopting the inethod proposed in the Argument on behalf of Great Britain, the following variations as in«'" of of the N() car- wentA'- ir (lays f argu- l)asis hat the :Vll<>'USt, : iiKnith ESTIMATED CATCH DISCUSSED. ?53 an estiaiated catt'l for the CaroJena dnrino- the month ot'Aiio-iist, viz: 231, 400, and 128. \\\'. may also com])are the catches of the Mary Ellen and tlie Carolena during- the month of July, 1886, for the purpose of reaching- a ratio of the hunting power lit' a boat used on the Mary Ellen cind a canoe used on the Caroleiia. The catch of the Mary Ellen from the 2 San Friiiu'isco. There is no evidence in tlie Hcc-ord of iiiiv sales in that year elsewhere. Theodore Lubbe i)ur('hased in that year at Victoria ^'^^2, 16,7!>7 skins. H. Liebes & Co., of 8an Francisco, piucliased on the coast in 1886, 7, 063 skins, and the Alaska Coininercial Company bonjifht a lar>6 f A. Yes, sir. Q. Can you tell me what they were sold fort A. The highest I know w;:s -It and the lowest -^G.oO. The market valne of seal skins in the market of Victoria in the vear 1886 is therefore definitelv fixed ' ' ■ as l)('tween 86.,')() and 87. The claimants demand the liiii'hest price. They, should be allowed the average market price. hi the year 1887 there were no skins sold directly l)y owners of sealing vessels in any other market than ill the markets of Victoria and »San Francisco. In that year Liebes & Co. pur(;hased 17,1)06 skins. K-, 1900. ^loiris ^[oss was buying for the Liebes firm in the 23. ' market of San Francisco that year. A total catch of 10,200 in Beriuif Sea was all pur- ( liased in Victoria l)y Uhlman, Liebes & Co., Hudson Kv^1883, line Hay Company, and Lubbe. The only witness sworn as to the market value of skins in tlie city of Victoria in the year 1887 was Tiieodore Lubbe, who testified that he purchased from r., 1882, line Charles Spring & Co., on the 10th day of October, ^^" 260 THE VAI>UE OF SEAL SK1N8. 18S7, 1,6'J5 st'al skins, at S4.50 eacli, and the witness added : ^'00^**^' ^'"® 1*'"'' instance, in tlie Berin{4' Sea tlie schooner KatediA not contain any gray pups to speai; of; slie may have contained a few, but in the others the juips are included. ^'i/iie if:'^^' T" ^1»<' Argument on l)elialf of ( ireat Britain, Clnirlcs Sprinji' is cited as liax in«i' sold liis skins tliat year tor $7. IfCy'liarles 8})rin^' sold any skins that year at ^^^T, it was mueli earlier in the year than the ear^^'o of skins from any of the vessels seized wovdd have been landed in Victoria. The fact is, a('cordin<>' to the books of Mr. Liil)be, that he received ^^t.riO for each seal skin of the Btruitj Sea catch of his schooner Kate in that year. R.,^1883, lino Uhln.an ct Co., of New York, bouo-ht of Minisie the 2,377 seal skins taken l)y the roth finder, at ^^6 ])er skin. ^^li^^l^''^^' The statement is made in the Argument on Ijelialf of Great liritain that the skins sold bv Mimsie to Uhlman Avere less valnable because of the numberof gray })ups contained in the lot. Lnl)l)e testified: Amongst these 2,377 tlicre may liave been 10 or 15 gray pups, wliicli would change my figures slightly, but would not amount to anything. E., 1883, line Lubbc bought rlie I'oiehtpe's collection of 1,000 skins at So.oO. This same year, 1887, Lubbe states R., 1884, line that skills were sold at the following ])rices hi Victo- *• ria: Other skins from tlie Pathfinder, 85.50; 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 cents per skin. E., 1881, line Q. And all these skins were Bering Sea skins, or northern 13. coast? A. Yes, sir; Bering Sea skins. Q. Could you give us the date of that last purchase? ■ ':.:■, A. October 11, 1887. E., 1883, line 32. THE VALUE OF SEAL SKINS. 261 Mr. Lubho testified tliat in 1HH7 he made tlii.sR|^i'*'<-' '•"« iiiciiioninduin in iiis hook: " Uhlnuui appeared to liiivc enough. Davis (Uhhnan's a«;^ent) could liave lioujiht a h)t at 85." Examined as to the average iiiMikct price of skins in ISS? in the city of Victoria, Mr. liuhbe said: R., 1933, line il In 1887 would $5.50 be a good fair average? A. I should think so; yes, sir. Q. F(>rf\)!» .V. Yes, sir; for all. This means Bering- Sea skins. Captain Warren, examined as to tlie market price ((f skins in the year 1887 at Victoria, said: (I. What was the ruling market price of skins in Victoria K-. 1872, line ill tiie year 1887 iu the fall! ^^' A. Well, as near as I can remember, it was about !S5.50, what the buyers were paying here. This testimony conclusively establishes that the iiiiirket price of fur seal skins in the city of Victoria in till- fall of 1887 was iSo.oO. There isVo other testi- iiKtiiy in the Record bearing- upon the average market liiice of seal skins at Victoria in that year. .Vtfidavits originally filed by the (claimants and^-'^^*^- t'uuud in the British case presented to the Tribunal of Arl»itrati(m at Paris were read into the Record. The affidavit of Capt. James D. AYarren, prepared in ('((unection with the claims of the Jh1pJiiti,t\\ii (inice, tlu' Sai/tvard, and the Am/a JUrk, claimed for each seal skin seized 85.50, tlie market value at Victoria in the ^7^^'^'^^' ^^^^ year 1887. The affidavit filed iti connection with the claim of tlic Ada, which was made on the JJth day of Decem- lj^11 tor endi skin seized in R., 1HH6, line Q. Yoii have been aakad to Hay whether a IG H., 1938, line 32. ■n sum would be a fair average erf the northwest coast catch as Lampson chissifted theau ii. IHSO, uiid you altw) say that that is not 11 fair way to jret mi ;.verage price for Bering: Sea .skins. Can ynii (fire uit the awrmfff jnrioe for Berinff iSett nkins for the year li^nii:' A. You tn«aai a sum im iji»ud(Hi and lieref (^. Take it both ways, if ;.(»u can, or if you cam not, give us either one way or the otli«r. A. The price lior irnti *> .7 ' and S7.00 in 1SS9. The imce in London^ I rnkmiifd think. irtntUi rangr hetireen SH.io ami .*.9..Vy; the net ri;»mlu to siiijtiKirx c.rtntrtinff skin* iconld he between Si).lO and ifn.54j, the irvnu'ct fttiltn. Mr. Liabhe afterwards srited that h^ made a sale in £., 1933. line 44. London iii ISS!) at >;7.7(i j^'skin. He ayain testified con(*enuii»i- the marivet prict- m Victoi'ia in i885t: Q. Takm^r them as they ran '.' A. You can not do that. If vou take 7T> per cent Bering Sea aiiid ur» ]M3r cent coast catc:^ the averiiise wouUl be more than *7.1iO, Q.. But as they ran in lissj) rrom your kMOwle many skins ^^ized from the schooners in IH'^H were of tlie coast catch, this averag'c price of ^7.2(' ]»er skin in Victoria would seem to l)e a fiur value for the skins taken from the schooners. The liii^'hest market ,>ri('e »tf skins in Victoria in 1HS9 was between S7.75 and >^7.6(). There is no testimony in the Record op])osedto tliis, and in the Arin'ument on i)ehalf of (ireat Britain the ^'ffi H'^^'iTP''^'^^ '*^ skins is dismissed with one state'.nent tluit Mnnsie says that he sold some in London tor Nil. ()<>'|. E.. 1863, line Miuisie testified as to sales made in London in tlie vear 188!). Tie sold some at is?. 92. He sold other *-2o.^^'^'°° skins in 188!) at 88.1()i|. The date of that sale was October 30, 1889. He tc^iified that he sold one lot for 811.00^. The cla 111 the Br irail into t Victoria. ( 'harles lonnectioi The marl about the t that time, Sanuiel tinii with Nn\(Mnbe Tilt' selli lUTiVill of tiiuo sealii season's v( The af a refereiv The cl in the Ar is no test don in th I if anv d year 18!" Warren i is that . ;:Teat mi toria, set at tlu^ ai Tliis 1 and the show th( Tlic (ml nicnt ev stated tl l)ut ^-av Miinsie. THE VALUE OF SKAL .SKIN8. 263 'eized in snni catch as that that ^ea skins. «.v for the give usi If price in f between i\ jsnic in testified i8!): t Bering I be more re of the liooiiors l)ri(Tof e a f;iir *. The ^S9 was to tlllN fiiii rlie lit tlijit ll.OO-]. 1 ill file 1 otlier lie was >ne lot The clMiinants, ill the orijjfiiui) aflidavits (•ontniiu'd'^-.i?^! ''•> ill the British case filed at Pjii">, and which were nad into the Record, all claimed the market value at \'ict(tna. Charles Sin-ino-, in his affidavit made in 1889, inK., looo, line roiincction with the claim of the Kate, said: Tlie market value of seal skins at Victoria aforesaid, at or about tlie time the Kate arrived from said voyage and since that time, was, and now is, $8 per skin. Saiiuiel Bucknam, in the affidavit made in connec- tion with tlie claim of the Ariel and sAV(^rn to in N'ovcmber, 1889, said: Tlio selling price of seal skins at said Victoria on the said^., 1900, line anival of the Ariel and on the Ist October, about which '^^* tiiin' 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 icfereiice to tlie market vnhie at Victoria. The claim in made for the market price at London, ill the Aro-nment on behalf of Great Britain. There ^rit. Arg., IS no testiintniy ot the tiiarkcf value oi skins in Lon- don in the years 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 W arren ship[)ed skins to London in 1887. The fact is that J. Boscowitz, who was and had been for a uieat many years a purchaser of seal skins in Vic- toria, sent his skins to London, where they were sold at the auction sales for his account. This shipment was not made bv (.'aptain Warren, i^^.^i*'it8> P* and the papers intnxluced in evidence on tlieii' face show the shi])ment was made by Jose])h Bosc;!).50 net at X'icloria. The United States contend, as stated in anotlicr part of tliis ArS6.5<) and 87; 1N87, $5.50; 1889, $7.20 to $7.75. ill l.s,S^) *eal skins the cit" uld liuve e of law declares ^4■ sea ■t-iby ture. pnce, but laiiiiants, leir skins luirket at ly estab- i(M their tioii. In emhd to London damages ' law has le to be I years is 7"; 1N87. EVIDENCE RELATING TO VALUE OF VESSELS. The evidence presented to the Connnissioners for the purpose of establishing* the value of the vessels seized l)y the United States, and which l)e<'ame total losses to their owners, may be divided into three heads: ' ■ * First, actual sales which took place at the time of the seizures. Second, the opinions of witnesses, conipetent from (i('('U[)ation and experience as exjterts uptm 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 te th(»se, for which claims are presented, at the time of the seizures. Ill discussing" the method of reacliing" a ])roper vahiation, cimnsel on behalf of Grreat Britain said: I propose to show that there a. : ten or fifteen vessels, and tliat those vessels actually cost so much to buikl. 1 propose to sliow that by the very best evidence. The connnissioner on behalf of the United States siii:gested that actual sales of similar >essels at that time would g'ive some idea of the market. To this the reply was made: / (on f/oiny to prove the actual salea and the actual cont o/H.,120. some vessels, Ayain he said: iloMT can I show better the value than by giving- evidence ]{_ 103. as what vessels were sold tor at thai time. In view of these statements of counsel, we would ■niiicipate that, under the first class of evidence sub- 26ti EVIDENCE VALUE OF VESSELS. initt('(l,(lreat liritiiiii would have proved, or atteini)t('(l to prove, a nuinljerof sales at the port of Victoria of vessels suitai)le for sealing- duriii'j' the period from 18])Ose(l 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 Ailums (68.75 tons) was sold at Victoria K.!4i2^i'iueto Gutiuan & Frank. But Frank, who was a wit- 1^- ness on behalf of (Jreat Britain before the Commis- sioners, was not questioned as to this sale. Alexander The Black I)iat)t<*^i< the same time, and was jmrchased b}' the same 25- firm, but no questions were asked the witness Frank coiicernmg this sale. R. , 1760, line 10. lleiiry Paxton, a witness for Great Britain, and part owner of the vessel, in 188G stated under cross- exainludfion that Gutman bought one-fifth of her in 1885 or 188(1, and that witness did also, and that he (Paxton) j)aid 8500 for his one-fifth. In November, R., 1761, line 1887, h«^ sold his interest to Gutman for the same *■ consideration. 1.S80. The Acfivr (40 tons) was sold at Victoria for about ^McLefn' ^3,800, to "Gutimui & Co." (i. c., Gutmau & Fniuk, R.,4i7,iiner,>, Gutmaii was subse(pieiitl}' lost up(^tn this vessel). The witness Frank gives no testimon\' in regard to this sale. The Fii s;].ii(i0, "j An elide t(i contrad purpose T ivlation to nation di^ knowledg* wliich reft The Ku sl.SOO. I mission ai: liis direct (idss-CXaili )IrLean. The M at tilt' ral sale was liut no wi cstahlish The M ahont \X> II. ("oope >tates tha i. nrodiK till sale. The Ji i^sd. \ jirice the (111 hehah of MrLe as To the The T evidence ""nrcniii The I John Sa tempted ('t<»ria dt' ><1 from ere pm- to sucli er Vnro- east teu e years. tauce in market uminarv t'oordiug e. Victoria s a wit- Uoiumis- Victoria \\\e same ss Frank ain, and ^er crosH- f" lier in that he vember, lie sr.me )r about IrVauk. vesHel). iganl to EVIDENCE — VALUE OF VESSELS. 2(i7 The Fdvonrifr (71154 toii'<) was traiKsferred for ^',*,"^ ■""••"■ , ,. ^ ,, .M c l,c it n, >;],(ii)0, "just as she caii'e troui sea. H.,40u,nut3 All endeavor was made on the part of Great Britain '*■ t(i coiitradiet tliis testimony of McLean, and for tliat jiurpose Tlieodore Lal)l)e was sworn as a witness in ivlation to the transfers of tliis vessel, hut his i'>ami- iiatiou disclosed that the sales, of wiiich he liad knt>\vU^dj>-e, occurred in 1883 and in 1884, and to \vhi( li reference vv'ill be made hereafter. The Kate ((JO tons) was transferred at \'i('toria for'^'^^^.^j^/^'^f,'; >il,SOO. Charles Sprinji", a claimant before the Com- i{.,ii'!i,'ine mission and a })ai'ty to the sale, was not cjuestioned in his (Hrect examinati<»n re' the transfer, but on iidss-cxaniinafioii he t'orro]>orated the statement ofH., ss*2. line McLean. The Man/ men (78-80 tons) was s(»ld at \icti>ria^^;;;|f''^'j;;': ar the rate of ''something- less than S4,r)()0." The e.ramiiia- salc was evidently a matter of connnon knowledg-e, [^2,"' linIV l)ut no witnesjies were produced by Great Britain to Alexander (srabHsh the consideration which passed. k.*4(itMhie i'he Morij Taiflof (50 ton^;) was sold at \'ictoria ^• about 1886, and .L D. Warren, the agent of Thomas McLean, II. Cooper, the largest claimant, on eross-cxamiiKttioii K..4ia,ii"e states ihat he purchased the vessel, but no evidence k.,ii66, line i produciHl by Great Britain as to the incidents of ^^' tile sale. T\w Jnanifo (4<> ton-s) was sold at Victoria fdiout •^'jJi-;;^^^';'.^*; I^Si;. McLean stated that he did not know for what R.,4i2,iino inice the ve^*wl was s(dd, but n r . the consideration. The Tfieresa ((>3 tons) was sold at Victoria, l)ut no'^'t^"^!!?/ cvKhiico was ))roduced on the part of (ireat Britain R.,ii;i.Hne '■"!!ceruiiig this sale. The Wanderer (16 tons) was sold at ^Tct)U-ih in a measure remote, have a bearin^5,350 for the vessel). The evidence concerning R., 701, line this sale was ))rodnc(Ml by (rn-at Hritain for the purpose of contradicting the testimonv of McLean, to which ivference has been made above. In regard to the consideration for the sixteen shares purchased, it R., 1721, lino niust be borne in mind that this was "a master's '^'^- interest," and thei'cfore the i)urchase price was hiii, were til it, and sifleration itates that d at Vic- d sixteen ; the rate mceriiing' B purpose to which 'd to the bused, it 11 luster's IS lii<)'her i\ry ))ur- I)ecein- 18.S4. For tli("^\V'^"'"i«'" , M c I^ o a n , (finrdnf K'.,ii;o, Hue Cniarles '"»• Tlif h'dte (<)() tons) was one-tliird sold. |iiir)Mise of oxj)luiiiiiig u valuation of the liimiLilit out on the cross-exaininution of S|iriiiy', the bill of sule to C. Spring" & Co. was pro- ,hit^2,2<)0. This testinionv was brought out on the line soiiietlihiii' less than SnOO," but (ireat Bntain^^^i^'/'^'l^;^ ess to u'ive the facts connected K.,t09, line notis-rxa in illation of Spring abo\e referred to. 188!l. K., 879, line (52; 890, line The Tiinnqyh (97 tons) was sold at Victoria to :Mar>\;^^'^°/^;'/ viii und Cox by E. C. Baker for 88,000 or 89,000. k.,'4i3,iine ('n\ and Baker were both sworn as witnesses on be-R.'/46i, Hue half of the claimants, but neither was ([uestioned ^• (111 ilireet examination in retrard to this sale. Mr. J)iilnrb(ini (107 tons); built in 1(S77; one-eig-hth wasH., 1723, liuo sold at the rate of ^o/iKJ. ('ill/ of San Dk'iio (46 tons); built in ISSI; one- i^-j^ i"33, liuo tourth was sold at the rate of 84,200. I vanhoe (ll-i tons); built in 186!); five-sixteenths u., 1723, line were sold at the rate of 83,200. ^•'• Lillie L. (63 tons); built in 1887; one-thirteenth R-^n23, line was sold at the rate of 85,200. Besides the foregoing' sales, Mr. Thornley testified lo transfers of other vessels of the same class which apiicnred by the books of the San Francisco custom- house, but of wdiich he had no knowledge as to the consideration other than that derived from the records. The list of these vessels is as follows: 1886. I'li'ssie Everding (H) tons); built hi 1870; one-half'^ •,i^i«U'"e was sold at the rate of $5,000. Iiio (\)3 tons); built in 1867; one-half was sold at^.^ 1797, line the rate of 82,000. ^^• John N. Imjalls (1) 1 tons) ; built in 1 875 ; one-eighth R-^^i^'^^, line was sold at the rate of 84,000. 1887. Anqd Dolly (19 tons), built in 1860, was sold forK., i796,iine ^1,000. ^^' line line AUon (84 tons), bnilt in 1886, was sold for 83,000. R-^i '96, J- and wliicli waso-iveu ))y Captain Anderson; and Walter Walker. a witness ]»roduc('" the same to Victoria from San w^^iofti ii..„ Francisco is important in establishiim' at what cost K., l^Dl, Hue 111 T 1 1 Tr- • 1 46. these vessels eould be supi)iiei Kate 60 Mary Ellen 78-80 Slary Taylor 60 Jiiiu'iila.l 40 Theresa ! 63 Wanderer ; 16 Hl.Kk Diamond 81. 57 W. P. .Sayward 59.79 Fiivoiirite 79.54 Favourite 79. 54 Kate 60 Onward 35 Mountain Chief I 20 Years. 35 (0) 18 24 I 23, 11 Hi Cost per ton. $30.56 38,97 30.00 6.16.25 (a) 14 IS 16 22 13 16 30.56 100.00 C67.26 66.6" 43.33 02.85 625.00 a Unknown. b Less than. e Master's int«re8t. liTid;/' pnce V.ar. iMi; AddieC. (iiildi'nOi lima haiiliDU. S.iii .lose liiii liani . City id' Si Ivanlioe. I.ilv I,... !.>ri lle.ssie El Inn .HllUl X. hsT .\n({i'l I)i Alton ... Barbara .InhuN I II ■Vmt per toi Willi llie doty. 1( from Siiii Franoti Mii'liiiUt. ill conti of the Un sciiliuji' ve trcii at Sa ill connect uf (ireat (.■vidcnce tniiisfers liy (ireat little, if } v;diie, be remote to ^f(ln/ 'i Victoria 1 Vrm (( tur s7,44: n s EVIDENCK — VALUE OF VKSHEL8. 273 tlu'l- S<')1- Viis siirti- ii list of riinciscu, 1(1 wliicli Wiilkt-r. n, stilted rancisc'd iiuniher class and from San hat cost a market, years 10 em from \u^ taken 1 by Mr. ])re})ared or vessels l)rice per ific Coast J: ia. eat Cost per alo. Ion. tr». 35 nr) $30.66 18 38.97 24 30.00 23 6.56.25 11 11 s u ») 30.56 100.00 1.5 o67.26 IB 56.67 22 43.33 i;t 02.85 15 625.00 Intel est. .|ifl'(i(/i price per ton at i'ivtoriii for ve»»elH hnill on the I'avifir t'oimt ami »old at A'aii I'raiiciHco in iSSi. uml /S.S7. V.ar. VoHsel. t'iiiit Thoi nUi/ lint. l^Hl; .\(lilii' ('. Ilii/.cltine. (idlilriiOate lirim Ivaii)iou S:u\ .J<).m< Iliiihani lily 111' Sail Dli'ijo.. Uiiiiliiii) I.ilvl Secund ThHrnU'y lint. 1"<7 lii'ssU' EvenUng . Inn .Iiiliii N. Iii){h1Is.. .\ii(,'il Di.lly .\ltiiii liarlmra .liiliuN Iiigalls . . Ti>ii- nagn. A«r at lllllK ('out l>rr ton ilfllv ircil Hi • Yenrt. X'iciorlia 120 h-1 ♦44. M Wt 12 01. H2 02 :i 70. ;)2 114 IT 40. 79 5.' () IM. «.'! H)7 11) 55. H8 40 (i oi.;io lU IS ;);i. 07 tli u 94.70 7(1 10 82.14 »:i 10 28. :i4 ni 11 .'•il.OO lu 27 71.05 84 1 42. 26 107 10 .■.a. 7a HI 12 53.51 II I'd^t iH'i' tondclivoreilat Victoria" N Imsc'il on iIh'hhIi' of tlir vox.solal San Krancidco *iiii llic duty. 10 pill- cent. U(l- veissels at Victoria in 18.S() and ISST, and six- tci'ii at 8an Francisco in the same year.s, and takt^n ill connection with the statement of counsel on behalf nf (ireat Hritain as to the value of "actual sales" as I'vidcnct} of market value, is the following" list of transfers at Victoria proved by witne.sses jn'oduced li\ (Jreat 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 ii'inote to the time when the seizures occurred. 1890. ^f(l^/ Taylor (oO ton.s), built in 1875, was sold atR., i05. Victoria by Warren to Munsie for about $4,000. 1893. Vrm (()0 tons), l)uilt in 1888, was sold at Victoria R-, m. tor s7,442. u s -18 m X IMAGE EVALUATION TEST TARGET (MT-3) 1.0 1.1 lii|2JB |25 m m ^ til 12.0 Ml < ik 11.25 1111.4 11.6 / Photographic Sciences Corporation 23 WiST MAIN STRIIT WIBSTIt.N.Y. USSO (716) •72-4903 6^ L ;V (>■ 274 EVIDENCE VALUE OF VESSELS. R., 141. R., 105. !{., 104. R., 1.58. R., l;-)'!. R., 104. R., 754, 47. R., 1424, 30. A)inie I'L IVmt (82 tons), built in 1885, was sold at Victoria about 1893 (?) for !}?y,400. 1894. Otto (8fi tons); one-cjuarter interest was bou 38.97 Kate 30.00 58. 'J J 1887 30.50 1880 Addie 0. llazultino $44.58 (iolllcil i ifttl* $01.82 Iriiiii 7!t.;i2 40.79 Sun tToHp .... . ... 9U.65 1887 IJavbiirji ... $,"i.'>. H« 01.30 City '*f San Diego 33. OJ LilyL 94.70 1886 82. 14 liio 26. :n John N. liiffalls 51.00 1887 Angel Dolly 71.05 Alton jiarbora 42.20 53.73 53.51 1880 Pat litinder 98.40 1887 Viva 97.82 85.05 ; Triiimph Average 1 i 78.20 70.30 55.47 39.73 Note.— The Aurora i« omitted from this tabl^^ as it appears from the evidence that she met with an accident in the Straits of Magellnii, which, as already stated, iiniloubt. odly 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 substan- tially the only evidence relied upon in the Argument on behalf of Great Britain to estnblisli the vali'p ot the seized vessels. The ])romin«'nce given this class of evidence by Grent Britain demands a detailed ex- tlic yea VillllC, J iiiitioii; This deuce ])re- tl»e f'ollow- ij»e market :>ria in the dual saks. sels, wliicli lirness, al- were far and coii- 'lown hy actual 1 to IS Rrs old. lf3 yeurs mm OVIT. $.10.56 38.97 30 00 56,3 1)0.56 $01.82 40.711 a;i.o7 'si.'oo' 26. :U 53.51 55.47 39.73 tlie oviilence tint ' stated, iiDdoubt' ) the value s, partakes is substaii- Arg-uineiit e value of 1 thin class etailed o.x- EVIDENCE — VALUE OF VESSELS. iiiuiiiiition of thens, coniiK'tencv, antl crodi- liilit\ ot" each witness sworn on ;jelirtlt" of either of the liiiili (•(intractin*'' ])arties, Tlic wit'jesses in'oduced by Great Hritain will be first discussed in the order of inn)ortance j^iven them ill the Arji-ument on behalf of the claimants. Walter Walker, termed in the Arfrument "shij)- \\iif lier construction. Wlien asked, "In l.SSli, wlien she was here, wliat was slie wortli ?" lie replied: "I should think she was worth about S(;,r,0()." Tliis latter vessel was of (50 tons reg-ister and was trans- ferred in 1S8(! for ^1,800. The (jnestion was raised on his redirect examination whether he was well ac- (juainted or not with these vessels; but it a])])ears that he was hcffcr acquainted with them than with tlic Jlton/toH, of which his valuation is relied upon in the Argument on behalf of (ireat Britain. He based his valuation of the (rrnce, IMplirn, and T!'. ]\ S. Sai/iranl on what they tvonld cost to huihl, and on the fact that they would not have dei)reciated in five or six years after bein<»- launched. Orlando Warner is cited in the Arg-ument on behalf of Great liritain as to the value of six vessels, the Carolma, Thornton^ Onward, Anna Beck, Grace, and DoJpli'uL He also was a jonrneipnan sJii}) carpenter and was for four years interested in a shipyard in Victoria; as he was so interested in 1891, he was but ix journeymati in 1880 and 1887. His experience in building- sealing vessels (consisted in working as a jour- neyman on the IhJph'ni in 1881, and in 1890 and 1891 constructino- under contract the hulls of two schooners. Between the years 1884 and 1888, inclusive, he buih no vessels. He bases his valuation entirely on what it would cost to huihl a vessel. In regard to the value of the CaroJena he testified: Q. Now, when you put lier 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. Yos, sir. Q. And you base your estimate on that? A. Yes, As a witness upon the question of the value of the EVIDP:NCE VALUE OF VESSELS. 279 B., 1029, line 3St, lliwc, Dolphin, Anna Heck, and W. P. Suywurd, he testiticd: ii. Your estimate, of course, as usual, is based upon your K-. loic, line estimate of cost? ■*'^- A. Vcs. (,). Entirely? A. Entirely. It is contended that the testimony of this witness tiin ])()ssess no weiglit in determining the valne of the vessels seized. (uMU'ge W. Cavin, cited in the Argument on belialf of (heat Britain as to the vaUie of tlie Thornton, Anna Vxrk, Grace, and Dolphin, was n journeijman ship car- jii'iifrr, wlio foHowed his trade about liaH' the time. ^•' "*-^' *'°® His experience in 1886 appears by the following tes- timony : Q. Did you own any vessels in 1886? A. 'So. i). Huy any part of one? A. No. (i. 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 icgard to the Dolphin, in connection with the evi- dence of J. D. Warren, the agent for the owner, that in 1881 the 6rracc (which was larg-er than the />o//:>/«w) 42. ' (ost him to build, with engines complete, S16,0()0: (l Do I understand that you put a value of $14,000 on the ^"^2!*^^^' "°° hull and spars of the Dolphin f A. Yes. . And outside of that she would have to be rigged and made ready for sea ? A. Yes. i}. And you think it would cost about one-third of $14,0U0 to rijjf her to get ready for sea? A. About that, I think. . ^ Q. That would make about $4,700 more? A. Yes. , (). So that the Dolphin, without her machinery, would be worth $18,700? 280 KVIDENCE VALUE OF VESSELS. A. Yes; she would run pretty well up to that, I tliiiik. Q. And .about liow i..i»cli would her engines and boilers bi- worth ? A. They would be worth )!<;j,(M>0 or $4,000. if. 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 f) i)art of my business; lam not an engineer or machinist. *i. But that would cost at least $4,000 or $5,000, you think? A. It is pretty hard telling in Vi'.%. '^^' Hubert J. Cook, cited in the Argunieut on bclialf of the claiiiuints as to the value of tlie Thornton, Onivard, audAnna Beck, as "a shipwright and jjropri- etor of shipyards for luanv years at Victoria" and "an R., IW>, liue • 1 1 •! 1 M ' " • . £• 1 • 1 46. experienced builder, was })roprietor ot a snij)yaia R., 836, line prior to 1883, ill wliich year '^]\u'pel rented it, and ^' wlio at the time of his examination was working" as a R 8BS 1" .h^ft'ticntumi. During the sixteen years he claims to 3. ' have been engaged in building he never constructed any sealing schooners, but he calculates the value of R., 835, line a vessel in 1886 on the basis of what it would cod to huUd one at that time. The ca])acity of the shi})yard managed by Cook R., 831, line is sliown by his statement, that in 1878 it took liira ^- eleven months to partially rebuild the Thornton, while Matthew Turner testified that in his yard at Sail „ ,„,.. ,. Francisco a 100-ton vessel usually tooK sixty davs R., Ivl.i, line 1 .1 1 1 .' V 1 1 1 ' i 35. to build "ready for sea, but could be completed at increased expense in thirty days. Cook was cpies- EVIDENCE VALUE OF VESSELS. 281 timicd us to nmvket value in 18H(i, and testitiod as t'lillnWS: Q. How <•'>:<■ lino A. Hecause I kuew what the luice.s were. "• (,». How do you know anything about the market value of boats in 188(»*' A. So far as that goes there was no real market value. Q. I Jut boats were transferred from one person to another at tliat time? A. Yes; we used to buy some vessels from San Francisco, and some came out from the East. As nine sales in Victoria dnvin<»' IHSG were testified to Id'tore the Hij^li (Joinniission, as already shown, the iiicoinpetency or this witness is apijarent. lie stated ^''.ig^'^*^' ^"'® ill his examination tluit the Tlionifoii in 1877 was wnrlh >sr),"200. Hein<^ questioned as tt> the extent of tlic repairs he made upon the vessel in that year, he ivj)lied: She was worth more when I was done with her than sheK > .^'^i. l'"® 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. lie was further asked: (}. Mr. Cook, did you estimate the cost of repairing theB.,9:i5,line9. Thornton in the year 1877 at $3,500! A. Yes, sir. It is unnecessary to further review the evidence of this witness or to discuss his competency as an expert, Kichard Bennett, cited in the Arg-ument on behalf (if (Jrreat Britain as to the value of the Anna Beck, (inu'c, and Dolphin, was a journeyman ship carpenter, K- 1038, line wlio stated that he did not know nuich about the vessels since 1883. His testimony in the case of the It'll jihin and Grace is in relation to the cost ofbuildin(/R , 1037 line tik-iu. ■ 30. In the case of the Anna Beck, the following appears in his examination: Q. Did you have anything to do with the sale of schooners? jj joas line A. No. 17. ' 282 EVIDENCE — VALUE OF VESSELS. if. Kroin iintiial sales, do you know anything abont the value of the fleet of sealing schooners here? A. I would have to take account of the vessels and look over thenj. if. IJeing a shipbuilder, do you, in estimating values, largely give your own idea of the cost of tliem! A. 1 do. Q. You are quite positive that the cost was cheaper in 1881 than in lS8Gf A. 1 am. i}. The cost of building was very high in 1880? A. It was. (^. And the value of the vessels correspondingly increased? A. It did. (}. Do you know anything about the ditt'ereuce in the values of vessels between 1881 and 1880? A. No, I Mio- liiiice of this witness. S. McC. Smith, cited in the Arjyument on behalf of (beat IJritain as to the value of the (imce and Dolphin^ wiis for a number of years a master sh'qmr'ifjhf, work- in^' at his trade in Victoria; and his examination dis- closed three sealing- vessels U])oii which he worked in^^'^^i, line tiijit ca])acity; but his experience, in which he noted the cost of building", was confined to the }ears 1890, ^"^g^^'^' "'^^ l.Sill, and 1892. When questioned as to the Caro- Inid'.s value, he stated that he never had seen lier, but^.j^j^^^' ''°® lie 'nnnifwed that she would be worth about >*3,6()0 or 83,700. 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 imagina- tion was not strong" enough to bring his figures as liigh as the other witnesses sworn. He based his valu- R-. ^oio, lino ation of the Grace and Dolphin on what it would cost to Iniild them in 1886. It is contended that this witness has not been shown (pialified to give testimony as an expert for the years 1886 and 1887. John J. Robinson, cited in the Argument on behalf R' ^^^- 111 i 2H4 EVIDKNCK VALUE OF VESSKLS. IL, 150 R., ma. K., 155, R., 156. of (in-at lii'itiiin jis to tin* value of tlid' Caiolciiii, Wiw i\ joiinnf/iiioit sli'ij) cnijtnitrr, ('Ui|'loy«'(l at tlu* \aril of AikIh'w Lain<;', one of tin* claiiiiants lu-forc tlic Coin- missioii. 'riic witness stated tliat lie never Wuilt a sealing' schooner, never hou^lit one, and never sold one. Knrtliennore, the Hi-eord does not disclose that he everwoi-kcfl n]ion any sealinj^' vessel exceptini^' tlu- Cnn>(r)i(i at the time when she was lengthened, in 1HH4. lM>.e value of the testimony ^iiven by this witness is best shown by "xtracts from his examination. i). Ill the cours'^ of your business here have you acijuired a knowledge of tlie value of vessels? A. No, 1 t'ouid not say that I have; I have {ienenil ideas all round. Q. Have you any opinion as to the value of the Carolnut at that time? A. I should think she was worth between $4,000 and $5,(K)0. Q. Have you any opinion as to the cost of building vessels per ton in Victoria at that time and prior to that time!f A. Oh, 1 suppose all the way from $150 up, builder's measurement. * * • . • • • « A. I have never built any schooners. That is my idea. Q. After you had completed your work ou the Varolena, at what did you value her per ton? A. Oh, I suppose about $105. Q. She was worth then more than it would cost to build a new vessel? A. You have got to take the vessel apart. You 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 linished. 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 o( any sealing vessel. ation EVIDENCE — VALUE OF VESSELS. 2H5 van I of Idiilr ii 'Vcr sold lose tliiit ill 1HS4. itiicHH is I acquired ei-iil ideas s Carolimi t,000 and ng vessels imef builder's ly idea. Carolena, bo build a L can not has been to do it shed. It Bngth ? vuer. clearly of any ilcnrv F. SifwiTii, cIUmI in tlie hritish Arjiuiiiuiit ''•• '•'•'• (III Ixlialf of (Jrcat ifritain us t<» tiuf valueof tlm Car- iiliiHi and Ada, was a .swiliiiji' captain who luul notliin*^ to do with tlic scalin*^ l)iisinct»H prior to September, 18x7. Mis only experience as to the valiu of vessels is in conneirtion with the jjiirchase of three scIiooium's ill N'oxa Scotia, tlie first one of whic' he 'troujiht to \ ictoria in ISSH. The followiiio- fr .a his testimony ,.] I I irs in the Arynmeiit on hehj'.lf of (ireut Britain: »' Air.. \>. ' ' "^ !'(>, liiiulW, \. I aui not acquainted with the Cmolenn. i). lint from your knowledge of vessels, take a vessel in ISS7. suitable for sealing, and of the tonnage of 'V2 tons or llicrcabouts, would you consitler $4,00(1 a high or low valu- ation f A. I should consider that a very rea.sonable valuation, considering the e.vperienee I had afterwards iu buying ves- sels. I will say that in 1891 1 i)aid $3,200 for a vessel about thirty years old. To which shonld he added: (). VVhat tonnage was she! R..l(iO. A. Forty. The CarnJenn was built the same year as the vessel Ai>i>. h, p. I'it. lii mentions, and was 27.ii(j tons, jicconlino- to the siiiNcy made of the vessel in 1HS4. His ionorance of the Cnrofnid and of market value ill 1SS(! divests iiis opinion of the sliohtest weioht. His inexperience in purchasinji' vessels and his ijiiiorance of the Ada, for which he made an offer in ISST, .siiow that his valuation of her is mere specula- tion. -John Sabiston, cited in 'he Arofument on behalf ofR., 208, line (ireat Britain as to the value of the darolena, was a^'* "211 line Nanimo pilot who never built a s.'iling- vessel, but i-^ liii.l had "boats" built in 1872 and 1893. On the 5. ' cost of building- in 1872 and 1893 he bases his opin- ion c)f what it would cost to huild a vessel like then.. 211, lino C'lrolena in 1SS4, and he fixes it at $5,0()(). That Ik' is utterly incompetent to place a value upon any \('ssel in the years when the seizures were made, or 10. 286 EVIDENCE VALUE OP VESSELS. K. at any time from 1880 to 1890, is evident from his testimony. AVilliam Sleiglitliolnu?, cited as to the value of tlie Thornton, was a journei/niaH ship carpoifcr who liad ,ji6i, iine|,j.(.jj emph)yed on the vessel in making- the usual annual re])air8. He had never been a contractor or K., ften, iiiie]ii{,ster shipwright, and had never bought or sold a R., 965, line vessel. Jlis knowledge of the cost of material for ""*• ship building was confined to the })urchase of niasfs '?••""•''' i'»ofor one vessel. His valuation of the Onward was K.. ii64, line based upou what it would cost to huild a vessel in tlie -'-• port of Victoria in 1S86. The evidence of such an inexperienced man, even so far as the cost of constructioii is concerned, can be of no value. \i., UK), line William Turpel worked as a journeyman shi}) cir- K.^'ieti line I '^"**^^''' uutil 1.SS3. Ill that year he rented ways and 30. used them imtil 188;'), building tiro small tufjhoats in that time. He then again became a journeyman, and remained so until 18,S7, when he bought the "Center Shi])yard,"and continued tliere until the present time, building in those ten years t'.ro sealing schooners K., 1(51), lino and "quite a few tugs." In 18S9-90 he built the H.'^i({7 liuc'^*^^**^*^^"'^'** ^f«!ff>clf<", find in 1890-91 the Sadie Tur- 57. 2)''i'- The Avitness, who is luidoubtedly the most ex- perienced shipwright swoni <,»n behalf of Great Brit- K., 811, linoain, was called in the cases of the (^arolena, Thornton. fine 27. ''Dolphin, Grncr, Anna Jieck, and W. J*. Sai/irard. In regard to all of these, excepting the Carolcna, he stated that he was not familiar enough with the ves- K., Kitt. sels to fix a value upon them. In the case of the Carolcna, on dire<'t examination, he gave his opinion that "if slie was as good as they say she was," he should think she would have been j{.^ 171, linc^vorth about >54,OO0. On cross-oxam'"ation Turj)el was asked: ^'•From your personal knoivli'dfje of the Carolcna arc i/on competent in your oivn mind to place a value upon licrf'' to which he replied, " JS'^o." EVIDENCE — VALUE OF VESSELS, 287 from his lie of the who lijul lie usual tractoi- (»r •r sold a terinl for of iiiasfs '(ltd was «el in the lan, even d, am be ship cMr- ^vays and (f/hnafs in man, and > ''Center ^ent time, 'cliooners built the 'tdie Tiir- most ex- •eat ]^rit- Thornton, aril. In o/ciHt, he the ves- m'nation, as they ,ve been 1 Turi)el ? of the ? place a lie The witness also stated that the cost of buihlin{>- a^' '^*''- vessel in 18S6 and 1H87 was from Si 75 to s-iOO a ton. On the same ratio the cost of hnihling- a vessel in San Fniiicisco, deductin<^' tlie duty and expense of delivery to determine the eost of such vessel delivered at Vic- toria, w>ir)0 to 8175 ))er ton. An ''.;^i'"^^' '' examination of the evidence of Matthew Turner, the San Francisco sliipbuilder (which is later reviewed), discloses that sncli a tigure would have been lar<>ely in excess of the actual cost in 188() and 1887 at the latter ])ort. This statement of Turpel shows conclu- sively why sealino- schooners were not beiu"- built at Victoiia in those years, and demonstrates that the cost of huildinj;" at that port is not even remotely a basis tor calculatino- what would have been the c. Did vou know of the buying or selling of any vessels in i;.. vau, line 18S(i? 5. A. I did not. <,>. 1887 or 1888? A. I knew nothing about the sale of vessels. 288 EVIDENCE VALUE OF VESSELS. K., 216, 60. K., 21(i, 52:l'17, 4. R.. 217, 2L li., 217, 56. It 18 clear from his evidence that his valuation was bavsetl entirely U]}on wliat it would cost to huihl a ves- sel in 1887, and as his exi)erience in sliip buildiuo-, even as a journey nian, was ])revious to 1884, his tes- timony is valueless for the purpose for which it was produced. ^""^ John Clark was n jonrHcifuian shipirrif/hf, who came to Victoria about 1884, and who, since 1888, has l)een iiii.sa contractor on his own account, «lurin*»' which time, '""' in the winter of 1891-il2, he l)uilt two sealino- schoon- ers of (ID tons each for !§8,7r)() and alxmt 89,()()(), respectively. His evidence is produced for tlie pur- pone of showinji" that the cost ofhiiil(linff ressels had decreased nt Victoria from 1880 to ]8})2. Althouoh the c«>st of building- at \'ictoria in 188(! has little bearing ujxm the tpiestion of market value, and the cost in 1892 is still m«n'e immaterial, the witness establishes his own incom])etencv by his testimony: lint" Q. Well, there was no building here iu 1880 of sealing ships, was there! A. No, sir. Q. Nor in 1885? A. No, sir. Q. Nor in 1884? A. I don't think so. Q. Nor in 1887 ? A. Not that I know of. liiii' Q' You can not tell anything about the cost of a ship iu 1884, 1885, 1880, and 1887? A. Oh, I had nothing to do with them at that time. Kedirect examination : Q. In the answer which you have given to the last ques- tion, 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. Tlie only value of the testimony of this witness, is to show that a Jotirncipnart shiptvriffhf is incompetent tofjivc expert testimonji as to values, and that one enffaf/ed in repair work had little or no knoivledfie of the cost of Imildinfi a vessel. . - , . EVIDENCE VALUE OF VESSELS. 289 Siiiiiuol Sea, in the Argument oii belialf of Great liritiiiii, termed "a sliij)buil(lei" of larjie and long- experience, and familiar with the Onirdid,^^ \va« a sliip ((irjH'Hfrr, who built two schooners, "such as are used tor sealing'," in h'^UH ; I might. (), Are you positive you saw her between 1880 and 1880? A. I think 1 liave. (). Well, are yim positive? A. 1 can not exactlj' swear, but I am almost sure. (). Are you about as sure that you saw her since 1880? A. Yes. His incompetency is aj)parent. -lames (iaudin, sworn in relation to the condition iind value of the Ada, was the master of the vessel niid an alleged personal claimant before the Oonnnis- siiui. He is only cited in the Argument as to his still eiiient that the Ada was the best sealing schooner ill the harbor of Victoria hi that year. His opinion iis to her value does not ivj)i)ear to be relied u})on. Xt» iittempt was made to (p'alify him as an ex])ert on the value of vessels, and his evidence discloses he had no knowledge on which to base an opinion. As this cniise on the Ada was his iirst and only experience w ith sealing craft, his statement as to the su})eriority (if rile vessel possesses no weight as evidence. He is wl in bnying- and selUng- vessels at Victoria since 1874, was sworn in the case of the llioniton, but his opinion as to what it wouhl cost to hnild such a vessel in 18.S(! Is not referred to in the Argument on behalf of Great Britain. His ideas are so exag'g'erated, and his in;'ii<)- rance of the vessel so evident, that his opinion is of no value. The four remaining- witnesses upon the value of vessels, sworn on behalf of claimants, and cited in the Argument on behalf of Great ]3ritain, are J. D. War- ren, one of the })ersonal claimants and the agent of Thomas H. Coo})er, the larg^est claimant befoiv tliis High Connnission; William Munsie, Charles Sin-ing, and J. J. Gray, tin-ee of the principal claimai/- (who for themselves or others represent claims, ^ nch, as submitted in the Argument, ag-gregate over Sf; ),000). The evidence of these witnesses, who })ossess a com- mon 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 exjjerience as t<» tlie value of vessels is uncpiestioned, but that they did, under the circumstances, and in view of the douht^'"^ credibility of the three first mentioned (as disclosed l)y portions of their testinumy), give a fair, unbiased o})inion of the value of the vessels, as to which they were examined, is not probable. In the report of the committee appointed l)v tiie board of trade, which was so relied upon by (ireat Britain in the Geneva Arbitration, the followin*;' observations ap[)ear, and are (pioted in the counter case of (ireat Britain: Geneva Aibi- It will be at once admitted by those who are at all familiar tration, with the practice of the courts in maritime cases that it is CO u 11 1 e r j„jpy4^j,jj)]g ^„ place much reliance on the opinion or evidence Great" ih'i't-'^t shipowners or merchants as to the value of property, aiu, p. i:n. which they are seeking to recover. Shipowners are in tlie EVIDENCE VALUE OF VESSELS. 291 liahir of founding their estimate not on what would be the iimrkct price of the vessel at the time of her loss, but on the original cost price, and often tfike into account the aiiionnts which they have expended at different times with- out any proper deduction for the wear and tear and damage wliicli has been sustained. These observations iV})])ly with e(jual force to tlie (iliinioiis and evidence of these three claimants and flic jiuent, Warren, wlio are relied upon in estimating- the value of the vessels seized. It is also to be noted that William Munsie is not iall('(l as a witness on value in the case of an}- vessels liiit his own; that Charles 8i)rin" vessel, exec th iiii:' 111 tlie \ear 18.S3, g-ator on the San Dief/o. wlien lie ayani sai led pt- [is iiavi- lle became a member, in 1S,S4, of the linn of 0. ►Spring:' & Co., which was engaoed in tra(Iin<.>' on tiic west coast of Vaiuouver Island, and which also owned several sealing- vessels, retaining- his connection with 1{.^^419, iiiiot],j,t th-m nntil its dissolntion in December, 1886. He testified that it had been a jiart of his bnsiness to keep posted as to the sales and transfers of sealing- vessels on the Pacific Coast, and showed his familiarity with the market at Mctoria l>y testifying as to the num- ber of sales which occnrred in 188() to his personal knowledge, and which have already l)een reviewed. K., 404, 405, His familiarity with the sealing vessels which were at the [)orts of N'ictoriu and San Francisco in the years l.S8r), 188f), and 1887, is shown l)y an examination of his testiiiKHiy, in which he gave the tonnage of the vessels and the \'ears in wliich thev were engaged in K-> 159, line sealing. Besides his experience in Victros))ective })urcliasers to inspect vessels whicdi were offered for sale at San Francisco. E., 2G5, line The witness Ih-agg stated that Cai)t. Alexander McLean and his brother wen* the two most experi- enced men in the sealing bnsiness at Victoria in 1886, and E. C. Baker, a claimant before the Com- 1?., 1420, liue mission, said that Daniel McLean "and Alexander ^^' McLean at that time (1889) and })revionsly were con- sidered the men best posted in that business." Every K. 701 line effort was made on the part of the claimants to shake 20; 7 01, Captain ^McLean's testimony by rigid cross-examiiia- soVifiiefhni, and to destroy its effect by rebutting evidence, ?.*; '^'j?'but in no single instance do we find, in an examina- 1 1 11 G 1 5 ' ~ ' 1305, linotion of the entire Record, that the attempts were suc- cessful; in fact, in many instances where witnesses were sworn for the purjjose of contradicting hiui) 54. EVIDENCE VALUE OF VESSELS. 293 It'ffo; since el, e.\c('i)t- ^ tlie iiiini- s })ersoii;il reviewed, eh were Jit tlie years nination dt' fig-e of tlic iiiji'aged ill a, Captain •chasers t(i lie at San Alexander )st experi- '^ictoria in the Coin- Alexander were con- ." P^very s to shake -examina- evidence, exaniina- were suc- witnesses ting- him, iioss-cxamination brought out a full corrolxn-ation of rlic testimony which he gave. It is to ])e noted that (';il)tiiiii McLean was part (nvner of the Onward wwA Fdroiirifc, two vessels for whicdi (daims an* made het'ore the High Commission. It is asserted hy the liiitcil States that this witness is shown by his own tvidciice, and by the evidence of every witness who wiis sworn for the ])urpose of reliutting* his testimony, u> ]i((ssess more ex))erieiiee and (jualificatious to be an expert as to the value of vessels at Victoria in 1S8G and 1SS7 than any witness which appeared l)efore rlie Ctdiunissioners. diaries K. Raynor, who commenced his ex])erience in sailing- from Pacific [)orts in the year LSTl, and who became master of a vessel in the year IHlfy and of a sealing- vessel in the year 188<), showed by his testimony familiarity with the sealing- fleet at 8an Francisco and knowledge of the market price of ves- sels in that ])ort. His entire ex})erience as to the market for sealing- craft is ccmfined to the j)orts of San Francisco and Seattle, and his testimony in relation t(i the valuation of vessels is based upon tliat experi- ence. In 1- his liiiefiither, who was a shipbuilder of (Jloucester. Me tes- tified that he knew of the cost of construction of line vessels at that i)ort, and on comino- to the Paeitic liiicC'o'i^^ in 1S8S he exann'ned the fishin<>' vessels there ,. emi)lo\ed (which are similar to those used in seal- liiic inji), their ri" notes at the time for general comparison with the vessels on the North Atlantic; that his investigations covered the ag^e, g'eneral condition, rig-, material, and cost of fi.sh- ing- and sealing- craft, and that his reasons for such examination were his own interest in such matters and the fact that he mig'ht l)e. called upon to g'ive information upon this subject to the Fish (Ntmmission. He examined the vessel as to which he testified with ^ care, and detailed her construction and condition at that time. line From his ex})erience, which was fully brought out in his cross-examinati(»n, it is plain that the witness was competent to give testimony as to the value of the Caroloia. li"e K. P. iMiner was sworn as a witness on behalf of the Fnited States as to the value of the Carolma. He had l)een engag-ed since 187;") upon fishing" and hunting' vessels, and had sailed from the ports of San E., 529, line 55. ^ E., 529, line Francisco, Yokohama, Victoria, and Seattle. InlS85 68. E., 529, 62. liue he became master of the Ih-iti.sh sclu)oner Penchqw^ and since that time up to 1895 had been a master of EVIDENCE VALUE OF VESSELS. 295 sf;ilni;i' vcjsso Is. lie stated tliat lie knew every vessel K.^ 530, lino rliiit was en and 1887, the opinion of Cajitain Miner is of a special importance because of his evi- dent familianty and long- exiierieiice with vessels of the class under consideration, and because of the clearness with wdiich he showed ujion what g-rounds he j^ 53,^ j^^^ l)ase(l his statements. His testimony in reji'ard to the 40. Ciinilriia rested upon an examination which he made ''' ' ^°* ' nt' lier in 1 889 at Uiialaska. He described her model, material, and construction, and explained fully how she (litl'ered from marketable yessels in 188G. It ajipears from the foreer of a steamship (iiinpany, one a pilot, and ten jotn net/men ship ccirpoi- fi'i's. These thirteen witnesses all testified as to values upon the basis of what it would cost to huUit vessels at Victoria in 1886 and 1887. The remaiii- iiijH witnesses are a sealing- captain, who had no ex- Iterience in the business prior to September, 1887; an inspector of hulls of steam vessels at Victoria, the a^cnt 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 t]i(is(i years. The remaining witness is a ship- hnilder (William Turpel), and the most experienced 1^ 296 EVIDENCE — VALUE OF VESSELS. R., 167. R., 168. of tlu* witnesses sworn on V)elmlf of Great IWtaiii, hut lie fjiils to place a value on any vessel from liis own knowled^^e. The witnesses sworn on hehalf of the United Statos are four, three of them the most experience*] sealiiiij captains on the Pacific (Joast, who fioin their ('(nn- prehensive knowle(l<>e of the sealing- husiness were fully competent to fix a value U})on the schooners seized. I'lie fourth witness was an employee of the United States Fish V ho had heenfaniili nussioi witn tne <'lass ot vessels u.sed m seMMn<>' trom Dov- hood, and with those on the Pacific for the j)ast ten years. All of these witnesses iiive testimony as to tlie marhet vnliic of the seized vessels The third class of evidence suhmitted to the Com- nn'ssioners, but which can only be relied Ujxm in case it is deemed a market price has not been jn'oved, is the cost of constructin<>- yessels of a similar class. It is apparent, from a review of the snimnarized evi- dence of witnesses sworn on behalf of the claimants as experts, that from the year 18S3 to 18H!), inclusive, there were no vessels built at Victoria. The only evidence which was submitted under this head on tlie part of the claimants, excepting- in the cases of seized vessels, related to the years 1890 and 1S!)1, when it appears that increased facilities for tlie transportation of the necessary materials from the East had made it possible to build vessels at Victoria in competition with the lar<;^e shi})yards of San Francisco. The vessels built at Victoria 'in 18!)0 and 1801, of which evidence was g-iven, were the foUowinj^: 1890. May Belk (57 tons) was built by William Turpel for 80,500. Sadie Turpcl (5G tons) was built by the same man for $10,500. EVIDKNCK VALUE OP VESSELS. 21)7 jit Britain, |1 from his ti'(] Stiitw ■<1 scaliii"' leir coiii- IK'SS \V (>]•(. scIkkukts t'o of the 11 familiar Tom l)ov- i' past ten loiiy as to tlie Coni- i upon ill ;^n j)rove(l, lilar class. arize^11,()00. McDonald and Chirk were the contractors. Clark, who was a witness H-, lost. hctnre the Coininissimi on behalf of (ireat Britain, stated that the inice which they received fin- the coii-R-, 21b, line structKUi was 88, (oO. Eiitrrprise ((59 tons) was built bv Clark at a costK-- 216, line ..ts9,()00. • liesides these vessels there is no testimony jiroduced on behalf of Great Britain in relaticni to the c(>st of l)nil(liiio- vessels at Victoria, exce))tin<>' the three '■("ooper" vessels, which were launched in 1881 ami Iss-J. There is some evidence liefore the C, iwu], ha\ in' learned the tra|iniilii|(i' the annual depre<'iation or "wejir ami tear" <»f vessels, which also becomes important in determinin<>' the \alue of vessels which had partially comjdeted their voya- wiiiihts there were eii^aoed in repairin<>' vessels used t'ci sealino- purposes. Third. That the source of supply for the Victoria market in 1886 was San Francdsco, and the market price at Victoria was o(»verned by the prices rulinji' lit San FrancMsco, with the customs duties and cost of tiaiisportati(»n added. Fourth. I'hat the siuirce of sup])ly for the \'i"toi*ia Jiiarket in 1887 was San Frantdsco and Nova Scotia, and that tlie market price at Victoria was o-overned accordinodA'. Fifth. T'hat the cost (tf buildiniri tliere in >va Sc'otian [e value in lers at the )()rt oF San Dinputatioii Victoria in ice of proof (lin<>- in tho sales, and 1 18M(i and existed for et. ent, and ni e evidence 'oiitractiii^' t« >r Vessels leof \vlii(di nne liable, niiiied that EVIDENCE VALUE OF VESSELS. 303 wi'iii' and tear which the vessel had suffered at the time (»f seizure must be taken into consideration. CAROLENA. The Caroleua, seized the 1st Au^'iist, 18S6, wasApp. b, 29. huilt at San Juan, United States, at a date uncertain. Slic was reji'istered at Victoria in 1870. The vessel was 00.8 feet in leng-th, 1(J.5 beam, and o.a depth of liold, with a gross and registered tonnage of 27.3().^'' ^'o, line Slic was constrncted of soft wood, and fastened with 1il(i(dv iron, not galvanized. The wood nsed was r., 178, line ( )r('gon pine or Douglas fir. ^• Mr. Alexander, who saw the Carolena in 1888, stated Rv -^70, line that she had "])rimitive lines as com])ared with mod-R., 488, line cYu build," and that she was of an "(dd-fashioned *'*• type," "full bow," and ''had but very little de;;d rise," and that "she had very full lines irom bow ti aft all over." ( "aptain ^[iner also said of her that "she was a very R-. 537, line old style — that is, in model." dailies 1). Warren spoke of her as a " small-sized" «•- 229, line \(sst'l of sliar[) build, but added that he did not txainine her after she was rebuilt. * )i the witnesses sworn on behalf of Great Britain iis to the \alue of the ('arohnia, aix base their oplnioti iijiiiii irlidf if iroiihl cost to tniild a vcssct }tew in Victoria lit llidt time. Their occujiation an. E., 22!t, line 42. R.,241,line7. R.,87. E., 119. E., 1024, line 10. E., 209, lino 38. E. 153. E., 200, lino 34. E., 1031, line 62. Jolm Siibistoii, N}Uiaiiii() pihtt, >'^r),0()0. S. Mc(/. Smith, ninstcr sliipwri<>lit, who never saw flio vessel, 'nuiuinwd ishe was worth about ^3,()00 (tr S3,7(M). l^esides the tbreji'oiiig' witnesses, WiHiain 'l\ir|)(^l. l)roj)rietor of a slii])yard at Victoria, placed a vmIik' of about >S4,()0(I upon the C'thening of the vessel renewed al)(iut two-thirds of her hull, and that such rei)airs cost 8900. At the same rate, although repair work was more expensive than the construction of a new vessel, the entire hull of the (kirolena could have been replaced new for 81,*2()0. Orlando Warner, who built the hull of the Chnr- lotte Cox, estimated that the cost (►f the outfit would be one-third of the cost of the hull ; and the sauie never saw •^3,t exaiiiiiif before the puyp(m's ill Y 84,000. (lie vessel, lie beeaiiie It he would fssed ill the )in ]\[iinsie, ^-as •S-JjOOO, the vessel lie received e, and that Id him that it a})j)ears wed about epairs cost r work was new vessel, have been the Clm- Litfit would I the sanie wm EVIDENCE VALUE OP VESSELS. 3U5 iati(» is given by the witness Gavin in the ease ot" tlie Dolphin. It" correct in their opinions, the Carolena was wortii ccrtiiiiily not over 81,(j00 or 81,700 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 \ ictoria market, stated that tlie Carolena when he K- ^^^> line saw her in 188;') was probably wortli 81,700. A. B. Alexander, basing his opinion upon an ex- aiiiiiiation of the vessel in 1888, placed the valuation 29. ' at between Si, 800 and 82,000, not exceeding 82,000. Charles E. Raynor, whose experience as to the k., 503, line value of vessels is confined to the San Francisco market, placed her value there at 81,000 to 81,200. Edward P. Miner, who saw the Carolena in 1889 at ^-^.^3^' i"'® Liuilaska, stated that a difference in valuation between her and a new ship of modern construction and build would be fully 50 per cent. Heing asked what she was worth in the market, he replied: 111 the market I thiuk she would be probably useless, r., 538, line unless there was some special business to put her into that 5- slio 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. i ' The T/wrwto>/, seized August 1, 1886, was built at , Dungeness, in Washington Territory, United States, in isdl. She was, according to the transcript of regis- App. b, pp. U'v. 51.1 feet in length, 19.2 feet in beam, and 5.1 feet ^^^' ^^3. ill depth of hold. Her registered tonnage vas 22.30. B s 20 306 EVIDENCE VALUE OF VESSELS. It is apparent from lier diniensions and tonnage tliat tlie vessfl was broad, flat-bottomed, and of an antiquated model, and this is confirmed by the fact R., 85it, liiiethat, ])ri(»r to 1877, wlien siie was (•luin<'ed from a •"'8- sloop to a schooner, she had a centerboard. E., lOHit, lino Capt. Alexander McLean states that she was an old ^^- model. K., lOot), liiiti Captain Raynor, who saw her in Unalaska, where ^- she was taken after seizure, states that "she was a very old-fashioned model — about the same model of vessels built abou 1 SoO and ISoS." If.. lOoti. lint' It would appear from the evidence that the vessel was in a dilapidated condition at the time of her sei- zure, as her mainmast was broken off about 7 feet below the crosstrees, and her fore ri<)'<>in, lines. Tluit her condition in those years demanded exten- sive repairs every year on the ])art of her owners is apparent upon the statement of F. I). Warren, that the annual wear and tear upon the vessel would be fully is 1,000. This may in a measure be accounted for by the fact that she was wrecked in the early summer of R.. !»!!», lint- 1B88 ou the west coast of Vancouver Island, at a point 49- where she was exposed for several weeks to the full R., ifl6s, line sweep of the southwestern o-ales wliit^h prevail at that period of the year. R., 1)37, line Accordin<>- to Warren, her enji^iiie was small, R.^ 844, line ^^^^^ ^t wuai:'e is too jdain to deprive it of the weight it ])(»ss('sses. The Thornfon was mortg-ao'ed in l^So by Warren '^'^g^^^^' ^'"® t(i Hos((>wit5c for the sum of 84,000, and sold at pub- lic auetion, after being- rej^-ularly advertised, for Sl.OO, ^■'^q^^'^' ^'"^ sul)j('('t to this mort<>'at»'e. It appears also by the charter party from Warren's 20. ' '"* assignee to lioscowitz, dated February, ISSO, that the vessel could not be sold for the amount due on the Miortji-a^'e. Tilt annual wear and tear on the Thornton, as <;iven li»v Captain Warren, must be deducted from any valuation made of the vessel, as she had com- l)K'ted over three-fourths of her voyage. In the Argument on behalf of Great Britain the Bi;-., Arg., 99, value claimed for the Thornton is 87,000, or $1,000 more than is claimed hi/ her alkf/ed owner. The evidence relied upon in the Argument as to the valuation of the vessel is entirely based uj)oii tes- testimony of what it would cost to build a new vessel of (I similar type. Four journeymen ship carpenters were jjroduced to establish such a valuation. !I. J. Cook gave her value in 1881 at 85,500, but^-^p.^^^' ^^"® stated that he was "not talking about the market value." \\ alter Walker said that he "considered she was 25. ' W(.rth, machinery and all, about $6,000 in 1886." 308 EVIDENCE — VALUE OF VESSELS. K., ii()5, line WiHium Slieglitlioliu valued her, ])efore her iiia- ehinery was put in, at about 85,000, and in 1886, machinery an(l all, at "perhaps something' over 87,000." R., 1028, line (>. W. Cavin, wlio was employed to float the ves- 44 ated supi) PYpT iv or >i(J,( )unded posed ''she was worth ])rol exp'.'sive of her maehinery." besides the vshi]) 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, line Mr. Lavender saw her in IStK) on the beach at Unalaska, and he states: "I should think, when new, that S 7,000 would be a fair piice 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 car- penters referred to, who base their valuation upon the cost of building new vessels in 1880. On the question of market value but one witness a])pearsby the Record to have given evidence — Capt. Alexander McLean — and he testified as follows: K., 1069, line J think from her age auu 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. App. B, 104. ONWARD. The Onnard, seized 2d August, 1886, was built in California, United States, in the year 1871. Accord- ing to the transcnpt of register, her length was fiG.S feet, beam 20 feet, and depth of hold 4.5 feet. She had a registered tonnage of 35.20. She was con- structed of the usual material used upon the Pacific Coast, termed indiscriminately Oregon pine and Douglass fir. As to tlie value of this vessel, five ship carpenters her ma- in 1886, lUg" over the ves- 1 that ha >r 8(),()O0, red to, a r is relied )n of the beach at irhcN new, including ready for placed in ! ship car- i upon the 18 witness ce — Capt, ows: 3, and from [ thiuk she inery. s built ill Accord- was r)6.5 set. She was coii- e Pacific jine and iirpenters EVIDENCK VALUE OF VESSELS. 309 were sworn by (Jivat Hritain, all of whom based tlu'lr csriiiiiitcs upon the (•(►st at N'ictoria in 1S8(! of l)uil(l- iiin \('ssels similar to the Oiiirard. Hubert J. C^)ok, ou beiim- asked, "What is vourR- «5;5, line cstiiiiate of th(^ cost of the Onn-did in 1SS6?" an- swcivd, "I considered between s4,()0()and >^5,0(H), or <(»iiii'rliing- like that." Orlando Warner, who state(l that he did not know ^-'q ^^^' ''"^ the age of the vessel and never worked upon her, estimated her value in the neighborhood of ^4,000 to s.O.ooo "ready for an ordinary trij)." Samuel Sea stated that he should think a vessel R-, 856, Hue (if her kind, as she was then, would be worth 84,000. .Vlexander Watson, jr., gave his opinion, fromhav-R., 858, line iii;^ seen her in the harbor on several occasions, that ^^' she was worth from s4,32o to >^5,0()0. Walter Walker stated that he should judge herR.,«60,iinoL v;ilue to be about 84,000. Hesides these five witnesses sworn as experts, Charles Spring-, half owner of the vessel and the cliiimant in this case before the Coniniission, was also swnrn on behalf of Great Britain as to the value of the vessel. Being' asked for his opinion as to her value, he re))lied: " I put her down at 84,000, conshlcr'nin tlidf she was worth evertj hit of that to me at that S2)ecial^'f^^^^^> ^'°® tiiiii'." Oil cross-exaniination he was asked: "Did you R.,8 Aline i. iiireiid to testify to the market value of the Onward ill iSSd?" To which he answered: "No, no; jast irlidf she W((s irorth to ni/fself enf/of/ed in that htusincss, Imrii/i/ nothinfj to hear on the market whatever. ^^ Die Old}' two witnesses wdio testified as to theR- 900, line iiiailcet value of the OnuHird were Captain Raynor ami ('apt. Alexander McLean. The former was • •11 board of the vessel at Unalaska inunediately after the seizure and stated that he considered the '32! ' market value of the Onward in 1886 to be82,000. 310 EVIDENCE — VALUE OP VESSELS. R., 1070, line Ca})t. Alexander McLean, wlio was lialf owner r/io7o line^^ *^*® vessel, stated that he would consider tlie 8. Onward to be worth in the port of Victoria in tlie year 18H(; from !iji2,200 to ii52,30(). R., «79, 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, 61. ANNA HECK. App., B, p. The ^«/m7>V6'A' was built at San Francisco in 1865. Her lenoth was (i'd.l feet, beam, 22.6 feet, depth of hold, i) feet. She had a registered tonnag-e of 3().35, R.^n33,iiue gi,e was purchased by J. 1). Warren in 1872 tor R., 975, line !!>4,000, and ill 1880 she was fitted for steoin<»' reiiairs in 1883, valued her without her machinerv at from 80,000 t(» 8(1,000. R., 978, line 35. EVIDENCE — VALUE OF VESSELS. 311 CJeoi'ge W. Gavin said that the vessel would repre- sent at that time ])et\veen !iS6,000 and 87,000, exclu- sive of machinery. On cross-examination he stated that she was probably worth !iS7,()00 or $8,000, exclusive of machinery. Richard Bennett, who .stated that he had not seen iiuich of the Anna Beck since 1HH3, fixed her value at about 80,500. .\11 of these witnesses, as heretofore shown, base their valuation ujxm the cost of buildin«»" a new vessel at Victoria in the years 1«H3 or 1 886. It must be also borne in mind that the co.st of ie|)air work was more exj)ensive than new work in Victoria, and tiiat a vessel similar to the Avna Beck could have probably been built in 1883 by the day's work for a sum less than the co.st t>f her rebuilding', hut 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. Tlie Annn Beck was mortgaged for 84,000 in 1884, l)y one Hartnell, to Joseph Boscowitz. Subject to this mortgage the vessel was sold in 1885, at })ublic auction, for 8l. In the tall of 1 886 she was again sold tor a nominal jn'ice, subject to the same mortgage. in February, 1886, the assignee of J. D. Warren, cliartered the Grace, Dnljih'ni, Anna Beck, Tliornfon, Itiisflcr, and one-half of the W. P. Saiju-aid to ,Iose])li i)osc(»\vitz, the mortgagee. In the jn'eamble of the chai'tci- the following a])])ears: And whereas tlie amount due to the said Joseph lioscowitz, npdii tlie said uiortgas:es or bills of sale, is gieater than the sum for which the .said schooners and mterest can be sold K., 1031, line 40. H.. 1033, line 3. R.. 1038, line 1. K.. 1038, line 10. K.. 1031, line 12. U., 1080, line (55. K., 1087, line 1,">. K., 1088, lines 10, .-.3. H.. 1087. line 12. Hearing also upon the ([iiestion of the value of this vessel is the fact that after her seizure she wasn., noe. Hue ajipraised at Sitka, witli her outfit and furnishing, at '"'^• sffiaaiiiffii 312 EVIDKNCE — VALUK OF VK8.SKLS. H., IL'TII, 53. liii R., 1278, 14. Ifi'- R., 1270, 20. In ji letter fVoiii the riiitcd StJitcs iiiiirsluil to tli( AftiiiLi' Att(»i'n('y-( M'lKM'iil of the I'liited Stntcs, datcil Aiijiiist 23, ISSS, the t'ollouiiijn' ji|)|)eiirs: The owiiiTs of the schooiiei.s Ainin llcck, (Iravc, and IM jiliht ch»iiii tliiit the appraiseiiieiit iiiaraisenient, wliicii if not jiianted they yt'in e nil iiccoiiiit le meiiiitiiiii. iiied to bdiiil I tliey desire satisfactory silt sippraised leiuentoftlie tlie 8ui)rci|K! iM- tVoni till' It \Vasliin<>- of tlie lioii- Ilis Excel- f'ciTiujr to a • ill relation r /■««', Anna 3888, under ►wners of the II er could be i'ely in excess Iniwii from and ivijort. If of Great lipor, tVoiu toria, July 111 the tele- iding to the ider present cud vessels hin, $7,7."jO; /„•<('.. Aid, 10 J; ,W/<(, .'?2,!l(»0. P.-iidiii;;' settlement of <|ues- tion liave sale i)ostpoiied. Tlic (late of this tele^^raiii is Ikd mouths jiiior to the Icttci' itf the I'liitfil States marshal and fhirc iiimitlis ■ jirim' \i) the lettrr of the Secretary of State, while the rcjiort of the eoiiiinittee of the |»ri\\ eoiincil, alread\' rct'cn'ed to, was approved ovei' ten months aftrr this tcliii'ram <{» the iniiiister of marine and fisheries of CaiKida. It is claimed, therefore, that it dctes not in any way iirtcct the wei^3,5()() and aj^-ain at S3, 200, but does not h., looi, line state whether that valuation is for 188o or l.SSf;. If i-- rlic latter valuation is for 1SS5, it is cle;'.rly contra- ilictoi'v of his former statement, while if it is a valua- tion for 1(S8(! the depreciation of the engine and oximatel •10. line ippr 4p stated that the TliorntotPsi niaeliinery could be sold iithr five years' usino- at but 7i percent off its original \ II hie. These statements of Thomson are much R., 99(), line 62. 314 EVIDENCE — VALUE OF VESSELS. at variance with tliose of Andrew Gray, inspector of boilers in 1882. The hitter witness stated that ma- chinery kept in jj^ood running- order wouhl depreciate ^40*^*^'^^°*^ per cent a year, and that he had sometimes seen second-hand machinery ^o at one-fourth of its cost. He added, "It is liard lo phice a vahie on secoud- R., iu20, line hand machinery." All the other witnesses, excepting ^^' Gray, who are ])roduced as experts on the machiiien base their opinions on the descriptions given by Mr. Thomson, wliicli were shown to be incomplete. GRACE AND DOLPHIN. App. B, p, 114. App. B, p. 116. K., 1030, line 13. R., 1030, line 23. R., 100!), line 3. R., 951, line 1. R., '113(1, line 8. R., 113.-., line 12. i;., 1010, line 35. R.. 1012, line 0. R., 1»7}». line 31. R., 970, line (50. The Grace and Dolphin were built at Victoria; the former in 1881 and the latter in 1882. Accord- ing" to the transcri})t of register, the l)olph'in\'i lenf>th was 77 feet, beam, 22.7 feet, depth of hold, 7.5 feet. and registered tonnage, 60.10. The lengtii of tne Grace, according to her register, was 7<).r) ieet, beam, 23.4 feet, depth of hold, 8 feet, and registered t(m- nage, 70.87. The Dolphin appears by the testimony to have been built of better material than the Grace; the lat- ter being constructed chiefly of Douglas fir, wliile the former had yellow cedar and oak as })art of her material. J. D. Warren, who had the vc-^* Is built, testified that the Grace cost ''about >^1(),000,"' while the Ihl- phin cost "something ovcm' >s16,0()()." In giving tli'-'se amounts ire included the engiiu's complete. All the evidence submitted oil beiialf of (ireat Britain a.< to the \alue of these vessels is ba.sed upon what /7 iroii/d rn.st fo hiiilil them. S. Mc( '. Smitli estimated that tlu^ Dolphin would cost 8!), TOO when launched, and the (uwi S10,000. Walter Walker, who also based his valnation uijoii the cost of construction, stated the Grace was worth "in the neighborhood (.f sl2,0()0," and that in 1HS7 she was worth about ^13,000 or ^14,000. EVIDENCE — VALUE OF VESSELS. 315 Ricliard Bennett, another journeyman sliij, i arpen- ^■^^^^' ''°® Iter, stated that the Grace, he "should think, cost between $12,000 and S13,000" complete, and that the r., 1037, line MpJi'ni he "should suppose would be worth $2,000 ^^" more." In answer to a (piestion by one of the Com- missioners, he stated that his valuation meant the cost oftlu' vessel. (ioorge W. Cavin reached a valuation upon tlie '^'j-.j^yS' ^^o, Dolphin o\ "about 822,000 or $23,000 with lier ma- cliiiR'ry in," and upon the Grace oH "about $18,000 or r., 1032, line $20,000." 20. Orlando Warner gave his valuation of the Dolph'nt ^ ^q^ 1,.,^ as about $9,000, exclusive of machinery, basing- his t2. valuation, as usual, upon the cost of construction. Which of the two vessels was the more valuable is ^33^*^^^' ''°® iiiiccitain. AVe have James D. Warren, agent of the owner, giving the cost of each at about the same aiiioimt, and Orlando Warner stating that the ves- sels were of abf>ut equal value, while S. McC Smith places a higlier valuation upon the Grace, and the witnesses Cavin and Bennett place a liigher valu- ation iij)on t](0 Dolphin. The a})j)raisement of these R..12H2, line twd vessels at Sitka, with tlieir furniture, outfit, and st(.res, was, t]>e Dolphin, $7,7i)0; the Grace, $10,404. ADA. The A(hi, seized August 2'), 1S,S7, had Iter p(»rt of ^-J^^- ""« m>;'), 500, while the balance of tlie|{''"7>^j ,i„„ • mttitting of the vessel was $2,000. ^ •:<■ I'Vom further examination of the Record this state- '15. ''' 316 EVIDENCE VALUE OF VESSELS. :*\ ;'C« App. IV 1M3. App. r. 184. K.. 123!t, 58. inent of the mate of rlic ^i(l '* •<■ '" (Soon after she arrived, which was in the earb iil of Ai)ril, C-antain Siewerd, whose (:r;'l)iir t mi) o/;t:.^' •S of the V;':*-^.'!" II the ear) Mt 'i:ilIticatioiis ^ ., ready been dis- II offer of SS, ()()() •bided her seal- mtiiinn the.b/rt en \\v ■■'^h to Iiiiii |»ni: . As iier !k' was <:o;!r(K^(l even a"cej;tiiif' tlie Ada in Victoria in 1887 was about $(),500, from which nmst be deducted the '/ear and tear for a full season, having been seized August 25. Tlie United States claim that, for the vessels seized and condennied, owned b}' perscnis in whose belialt Great Britain is entitled to claim compensation from the United States, they are liable to pay the market value of such vessels at the port of Victoria at the time of their seizure. I : ry&%isp.} ion that the 7 was about e '/ear and August 25. essels seized hose belialf isation from the market I at the time PERSONAL CLAIMS OF CAPTAINS AND MATES. The persimal claims submitted by the Convention (if February 8, 1.S96, to this Ili^-h Commission are till' claims submitted to the Tril)unal of Arbitration lit Paris, lietween pa<>es 1 to 60, inclusive, of the case (if (beat ]^ritaiu as filed before that Tribunal : These claims are: Personal claimn. Claimed by— For— Amount cliiimed. D.iviil Monroe. iimHter of Onward Maiuotiili. mate of Onward ; do ll.'iiis (iiitlomiHen, maRtcr of Thornton ' do Han v Norman, mate of Thornton do .laini's (Ijiilvif, maHter of Carolena do Jaiiirs Itlack, mate of Carolena i do 1886. I1le;<;al arrest auil iniprlHoiinient ||I4. 000 2,500 4,(100 2, 5U0 2, 500 2,500 Total for 1886. 18, 000 I 1887. Wancn. masterof Dolphin | SutteringHaiid lo«8e«: Navi^ja- I ling four vessels from Cna- j laska to Sitka. 'Iiilin Iteilly. mate of Dolphin Siitt'eriugs and losses (icorj.'!) r. Ferey, masterof \V. P. Sa.yward.! do , A. II. I.aing, mate i>f W. 1*. Sayward do , l.oiiis Olxen, masterof Anna Bcek do , Miiliail Keefe, mate of Anna Beok t do Vt'. Petit, master of (Iraoe ■ do ('. ■\. Liindberg, mate of Ada \ do Total for 1887 ... 2, 635 1,000 2,000 1,000 2,000 1,000 2,000 2,000 Total for 1886 and 1887. 13, 635 "49,635 Xo other claims for personal damajj^es were sub- mitted to this Wiffh Commission by the Convention, iiiie.s for e;u'li ])ers<»n, the cliiiuiuiits, members (if the crews of various vessels, liave been uniformly i(M|uire(l to present claims for (liima<^-esan(l suffering's scpiirately; and unless such claims were ])resente(l, their consideration has been held to be beycmd the juilsdiction of the Conunissictn. The persoiial claims iiiiuU* on behalf of the meml)ers of the crews of vinious vessels in the Ikitish Aruument for the first time were not presented to the Tribunal of Arbitra- tidii at Paris, and no such claims were ever presented t(i the United States. The claims set out in the schedule al)Ove, which wore presented to the Tribunal of Arbitration at Paris, lire all for dama<>'es arisiny- bv reason of "illegal arrest and im[)risonment," and "suffering's and losses," with the exception of the claim of Cai)tain Warren, master nf the Dolpliin, "navigating four vessels from Una- liiska to Sitka." Counsel for Great Britain stated: What I want to refer to is this: The personal claims that il., 1201, line were esi)ecial]y placed before the Paris Tribunal for 188G and ''*'• 1SS7 stand on a ditterent basis altogether. In 188G all the ciiptuins wei'e actually arrested, convicted, and imiirisoned, 1111(1 for that tliey put a claim in, and you may have noticed tliiit we have been particular not to go into the details of what the captains lost in the way of wages, bnt to claim under the j;eueral loss of the venture. The (-laims were put in for ille- Kiil arrest and imprisonment of the captains and for such an iiinount as this court, actiuff in the place of a Jury, if yon will, would give to a person illegally arrested and imprisoned. Tlie same with the cases of 1887, wliere the personal liberty i»r the captain and mate was to a certain extent interfered witli. The amount and extent is a matter of degree, but we put tliat forward on a different basis altogether, and it has ahvn,\ s been so done. AVe have not attempted in this case U holster up or enlarge the case of any particular captain oil account of loss of wages, or anything of that kind. I'rom the nature of the (daims made at Paris, and the statement of counsel, these claims are to be con- sidered by the High Commissioners as claims for B s 21 i 322 PERSONAL CLAIMS OF CAPTAINS AND MATES. It., 114G, liiw 28. dainaj^vs arisiii<>- by reason of tlie alleged illegal arrej*! and iniprisomnent of llie ('a})taiiis and mates of tlic schooners seized in the years l.SSd and 1887. The testimony establishes that in the year I88fia charg'e -was made against the captains and mates for violation of the municipal huvs of the United States, l)rohibitin<>' the taking of fur seals in the waters of Bering- Sea. After reaching Sitka the testimony conclusively establishes that the men were never restrained of their liberty, except that they were com- pelled to remain in Sitka; that they could go and come as they chose, and that, as a matter of fact, the iiien did have complete control oH their own movements in Sitka. They were brought before the court and sen- tenced, but i)rior to the sentence they were not restrained in any place under lock and key. A g-uard was never ])laced over them, and they were never, at ain' time, in jail. One of the jury rooms in the court-house at Sitka was set aside for their use. This room was large find comfortable. They were provided with food regularly by the marshal, and could, during the day and during the night, if diey so wished, occupy themselves about Sitka at their own will. After tho sentence of the court thev were restrained of their liberty by being compelled to remain in Sitka. They could go out of the room provided for them at any time the}' desired; no guard was placed over them, and the room in which they remained throughout the day and in which they slept at night was never locked against their exit. In the year 1887 no formal charge was ever pre- ferred against the masters and mates. They were never detained or restrained in any way, save that they were compelled to stay in Sitka imtil the 9th day of Septend)er, when Capt. James 1). Warren says: Q. September 9 we were all called in and released, aud are getting ready to go to Victoria [reading from a book]. Is that correct? * PERSONAL CLAIMS OF CAPTAINS AND MATES. 323 iO. A. Yes. (). To wliom does the word "we" refer? A. Tliat meaus all of us masters and mates that were l)Ouiid over to appear at court. (). The masters aud mates of these four schooners? A. Yes. .loliii Keilly, of the l)o/p/ihi, wat< emjiloyod by the Uiiitt'd States marshal, while he was at Sitka, to make tilt' tri)) on the Grace to Unalaska, as mate, when she WHS cliartered by the United States marshal. R.^^1195, line W. Petit, master of the Grace, was employed b}' tlic United States marshal to act as ca])tain of the R , 1165, li'ie (inice on this trip to Unalaska. Hoth Petit and Reilly have personal claims for iiiil)risomnent, suffering", and loss, and the 'estimony shows that not only were they not restrained of their lilxity, but that they were actually employed, de- piirti'd from Sitka, aud i)aid for the services ])erformed. Andrew I), Laing, mate of the Saifivard, while he Wiis inqmsoncd, made a trip to Victoria, remaining- inviiy from Sitka until a few days prior to the time that lie finally departed for home. Tlie only testimony adduced on behalf of the daini- anls relative to the detention of the masters and mates hi 18S6 was that of one Marketich, avIio was the first witness sworn before this High Connnission, and wh( )se testimony needs no connnent. 'riiis person was iji'iKtrant, unable to speak the English language intel- liiiently, and absolutely unworth}' of credence. He ah me, of all the witnesses who were j)roduced, gave ti'stimony that the mates and captains at Sitka, in the year 188G, were treated in a manner, by the judge lit' the court of the United States in the Territory of Ahtska, not becoming a judge of one of the courts of the United States. He says that the judge called R-^^ 74, line them "robbers." This testimony is directly coutra- ih'cted, and was never, throughout the entire Record, suhstantiated by the testimony of any other witness. Marketich also, iu answer to a question put by the 25. 324 PERSONAL CLAIMS OF CAPTAINS AND MATKS. 54. E.,71 Coniinissioncr on tlio ])art of Iler i\[ajo.sty, said tliat the room iii wliieli all the masters and mates slept was only 10 by 12 feet in size. On cross-examina- tion this witness said : Q. Ami the room where you slejtt in, or were confined in, was a room Just over the judge's room ? A. Yes, sir. (}. The jury room? A. Yes, sir. '^riiis room, it was afterwards established by the R.^ 500, linetestinujny, was "a1)ont 30 to 35 feet long- by about 15 feet wide." The testimon}' of Marketich is brief No weight was given the story by tliose who heard the wituess at Victoria. Capt. (Jharles H llaynor was examined fully and in detail relative to the treatment of the captains and mates at Sitka in 1886 by rlie authorities of the United States. The testimony of this witness bearing ou this subject was never denied or contradicted in any of its details, and throughout the session of this Iligli Connnission at Victoria the account, as given by Cap- tain Ravnor, of the occurrences at Sitka Avas taken as the true history. Every witness Avho testified there- after, relative to this feature of the claims, confirmed in some of its details the statement of Captain Raynor, and denied it in none. _ Captain Raynor stated that the captains and mates were not confined at Unalaska prior to the time that they were taken to Sitka on the revenue cutter Cor- ivin; that he had seen Captain Ogilvio and the mate Blake, of the Carolcna, ashore, and that no orders were given that they should remain ou board their vessels. E.. 496, line Q. After you got to Sitka, Captain Kayuor, what steps ^^' were taken by the officers in regard to your arrest aud detention'? E., 496, line PERSONAL CLAIMS OF CAPTAINS AND MATES. 325 y, said tliat mates slept ss-oxaiuiiia- e confined in, lied by the ij^- by about No weiglit tbe witness id fully and •aptaiiis and f the United bearing- on dieted ill any 3f this liigli ven by Caj)- was taken as stifled thero- s, confirmed tain Raynoi', IS and mates he time that 3 cutter Cor- nd the mate it no orders board their •r, what steps ar arrest aud A. Well, they told us that we could consider ourselves uiidcf arrest. (^>. Were you bound over to a])|»ear? A. W'v. were bound over on our own reco^iiiizance. (,t. And were you {;iven your liberty during the interval? A. Ves, sir. (,). Did you take advantage of that liberty? A. We did. At least for ii few days everybody went aioiiiid. We were on our own recognizance, and they went tor lour or live days and then surrendered it, and then they let us go around Just the same, anyway, (.>. WHiat was the object of their surrendering their recognizance? A. Well, because ire throuffht it ican easier to (/o and eat and kIicj) ill the Jury room than it n-as to ijo on board the vesucls. (). And before they surrendered their bail they had lived on hoard their vessels, had they? A. Ves, sir. (f. That includes Captain Ogilvie and Mate IJlake? A. Yes, sir. ^>. And, so far as you know, the oilicers of the other shi])8 tliiit were there? A. Yes, sir. (). These ships were the Thornton and tlie Onward? A. Ves, sir. (). Were they compelled to sleep in that room, or to remain tlicre — that is, before the trial we are talking of Jiow? A. Xo, sir; they could have gone on board the vessel and slept on board her, or whatever they liked. Q. The fact is that they actually selected this place to sleep in preference to the vessel? A. Ves, sir. (i. Durintj the day they were confined tcithin the limits of tiiv ctnirthonsef A. Not af all. . After the arrival of the captains and mates of the Thorn- R., 498, line ion aud Onward, were they complained against formally? ^^• A, Yes, sir; they were. (). Were they arrested in the same manner that you were? A. Yes, sir; they were. (). Were they restrained of their liberty in any way np to the time of their trial? A. Xo, sir. *»>. Now, just tell the Commissioners about where the mates aiiil captains slept at Sitka before they went to the jury roiiin. I believe the Carolena, the Onward, a,\u\ Thornton 326 PERSONAL CLAIMS OF CAPTAINS AND MATES. were left at I'lialaska, so prior to the time they went to the jury room where did these men sleep 1 A. They slept aboard the San Dieyo. Q. That is your boat? A. Yes, sir. il. Did tl'ey have their own bedding? A. Yes, sir. (^. And about how long did they stay on the San Dieijo before they decided to go into the Jury room and sleep? A. I think it was tliree days. Q. When they surrendered their personal bail and asked to be allowed to sleep at the Jail, did the"? A. Yes, sir. (^ Now, is that Just the way the th -curred, or were they compelled to go to the Jury room ^„. oieep? A. No, sir; that is Just the way the thing occurred; they done it of their own self; asked the marshal to let them sleep there and also eat there. {}. And he comi>lied with their request f A. Yes, sir. Q. It was a step taken for their personal comfort, was it? A. Yes, sir. They done it because they did not like— of course the San Dictjo was anchored some ways offshore— and they didn't like to pull back and forth aboard of her to get their njeals and sleep. 1 aluo done it myself on the same account, Q. AVhen they went into the Jury room did they take the same bedding that they brought off their respective boats off the San Dieijo^ A. They did; ye? sir. Q. And during the time thai, they slept in the Jury room did they make use of this bedding? A. Yes, sir; all the time. Q. Was there any abuse on tl e part of any Federal officer there I A. I never seen any nor evei heard tell of any. Captain Rayiior tlieii said that tliorc was no com- plaint about the food that the men were siip})Ueil with. E., 500, line Q. Were there any com{)laints made by any of the mates 43. or captains as to the manner in which they were treated there? A. No, sir. (^. Or the words that were used in reference to them? A. No, sir; I never heard of them. PERSONAL CLAIMS OF CAPTAINS AND MATES. 327 went to the San J)i€(io il sleep/ lil and asked ired, or were i!urred; they to let tliem ut'ort, wasit? not like — of i^s offshore— iird of her to y on the same hey take the itive boats off he jury room 'ederal officer •^as 110 coni- re supplied of the mates were treated to them ? {). Did you httir the word ^^robbers^^ lined in the charge of the idiirt ! A. / did not; no such tcord. Tlio ('{iptaiiiH and nuites were tlien tried by the court. (,t. What liberty did they have? A. Well, they could go all over the top of the court-house, ill tlic court room, and all around out around the porch, down ill till' yard, in fact anywheres in Sitka, by going and asking permission of the marshal. (}. Did you crvr see any of these men outside of the Jury roiini, or away from the immediate vicinity of the eourt-honse ilurinn this time of confinement after that first sentenced A. Yes, sir. (}. Where did yon see them* A. ^VeU, 1 hare seen them ont in the street around Sitka and ill different stores; I couldn't give the name of the stores — wlio kcjit them. (j>. Did yon yourself go out during that timet A. I did; yes. (). Were any of you locked in or guarded during that tiiiio ". A. Well, there was none of us locked in at all; they had iniiiiii up there for a few days who was supposed to be a ;,niiird, but he never stopped us from going anywheres that we wanted to. (}. After the fifteen days elapsed which you speak of as being the time you believed the other mates and captains served, tell us what occurred; liow t^ey were released? A. Well, the marslial released them, and they went right auiiy on the steamer to Victoria. 'v». Were they released in order to take a boat to Victoria; did it not leave the uext day? A. Yes, sir; they were released at the time the steamer wiis there so they could take the boat and not be detained in Sitka any longer than possible. <.•. After the sentence of the court was there any difterence in the treatment of the men, both as to the fare that they were, given and as to the place where they were allowed to slet'[) and as to the bedding they had ? A. No, sir; none at all. iteariuo- upon tlie claim that the captains and mates wt re put hi jail and kept under lock and key, the story of the disappeanuice of Cnpt. James ()<,^ilvie 328 PERSONAL CLAIMS OF CAl'TAINlft AND MATES. *^'V''' ''""
  • ^<'l<»se« tliat those iiu'ii were allowed to go as thov desired while they were in Sitka. Oai)taiu Ouilvic was ill with a fatal disease when hearri\ed at Unalaskii. The surgeon oi' tlie ('(inriii took him aboard the cutter and cared for him on the \(>yau'e t<» Sitka. After tli;' arrival at Sitka, ('aj)tain Ouilvie disaj)])eared. Later his l)od\' was foinid in the woods near Sitka. ('ross-exaniined relatixe to the treatment that was accorded the masters and mates, Captain h*aynor said: R., 514, lino (^), Xow, then, dill vou liave a guaid over you before tbe ^''- trial? A, Xo, sir. <»), The door was never locked ? A. No, sir. ii. Did a guard stay tbei'e at night .' A. Yes, sii'. (J. Was the guard armed ? A. He was not. i}. When you went out did the guard go with you? A. Xo, sir. its fhov It a ill Ooilvie |at IJiiaiitska, •d flu- cutu-r I- After tl!!- [ired. Liitw ka. 'lit that was h'ayiior said; yon before tlie til \()U? ' tlie niarslial sir. lalaska tlif ' and were crewis wew ilf of G resit ifter yon jrot (^>. And yon staved on the Carokna all that time? ' A. No. i). 1 hul you been ashore ? A. Yes. (,». Uack and forth? A. Yes; out fishing. ( ';\\)t. Louis ( )lseii, testif\"iii,<>' relatise to the seizure R.,_iot4, line of the Aimn Beck in 1887,"sai(l: ^^' (,>. Wheic did you sleej)? A. On the floor in the jury room on our own blankets. Tiic jury room was about luilf the size this hall. (). I low long did you remain in that room ? A. lUtil the 10th or 12th of !Sei»tember. <^>. Could you have j^ot away before? A. No, sir. i^. What distiidine was there while you were in that room; Liul you to be in at any hour? A. 1 dul not hear auythinj^- to that effect. (}, Yoii cdiiK: and ii'oit as ijou plcdHi'd* A. i>,s'. Thrriicfis no u'stHctioH m(ule on me that I heard. (}. Wei 3 you ever tried'? A. Well, the Rush arrived and I was u]» for trial next day. Ill fart, they were trying the case of the Sd/nvortl, and I supposed I would come next. The mail steamer Anmomla arrivf.d and the .judge adjourned the court until he would It"" ive some mails. The next day I was informed by Csiptaia ^\ arren that we were clear to go any i)lace. <,>. Von were told that without going into court? A. Y'es, sir. <,». And you imme. When did you get to Victoria ? A. I can not say i>ositiveIy. but I think it was in the iii'igliborhood of the -'0th of Sei)tember, . Y'on could coinv (Did (]o (is i/oii ])U'((scd * A. SfiH; I hclicre ire could. In the ddijtimt we did so. R., 1064, line 41. m- 330 PERSONAL CLAIMS OF CAPTAINS AND MATES. R., 1065, line 5. Q. How do you know that wheu you had no guard i)lace(l over ycu ? A. Well, Judge Dawson told us at the time we arrived there that we were in charge of the United States marshal. That is the words he used. Q. How did the United States marshal show that he had yon in charge f A. ire/Z, hy supportinf/ us in food, I suppose, as long as ire tcere there. Q. And you were allowed to go about the streets? A. Yes, sir. (i. And you were allowed to go anywhere you pleased? A. Sitka is on an island, and we could not go any further. Q. You never went up to Indian River ? A. Yea, I did. Q. Did not anyone stop you ! A. No. Q. Were you ever Interfered with in any such trip you took about Sitka? A. Not that I remember; no, we were not. Q. Were you ever tried ? A. No, sir; but the IT. l\ Soy ward was on trial that day. Q. Were any one of the masters or the mates tried? A. No, air. R., 1097, line Andrew D. Laiiig, testif'yino- in his own behalf, said : Q. What was done with the scliooner .* A. She was brought inside, into 8itka Harbor. Q. What was done with you on that morning!! A. We got in there between 7 and 8 o'clock. The trial was coming off of the ci'ew of the Anna licek and the Chil- lenge, and they tried us the same day. (i. Uow did you know you were going to be tried; what uotice was given you ? A. The deputy marshal says, "Y'^ou better come up to the court, the trial is going on of the other two vessels, and they will try ycm at the same time." So we went up in the court. ii. What liappened wiien you got into court? A. We were asked by the Judge — Judge Dawson — if we were sealing, and we told him we went tliere to hunt— to seal; they all gave the same answer. Q. What happened after that? A. We were bound over to stay in Sitka until the Hush arrived. The judge told us to beliavc ourselves ami we would be all rigb.t. Q. How long did you stay in Sitka? PERSONAL CLAIMS OF CAPTAINS AND MATES, 331 riiard placed |e we arrived Ktes luarslial. \at he had you his long UK ire reets if |ii pleased f any further. iich trip you 'ial that day. « tried? >wn belialf, 1098, line w The trial id the Vhttl- tried; wLat lie lip to tlie ds, and they 11 the court. vson— if we to hunt— to il the Mmh es and we A. From July until October; until the trial came off ; until tilt' h'lisli came down. {). \o\\ say that in 1887 you came away from Sitka in the i>' montii of <)ctober? A. For yood; yes. {). How do you ftx that date? A. l>ecause w«' all came away together; the only one we left was Captain Ferey. {}. You saj' you came away for good in October. Did you come away before that? A. 1 di(l; I came avray in August. i^. llow long did you stay away then? A. I arrived here (Victoria) on Saturday and I was on my way bade on Monday. (^>. Why did you go back? A. To stand trial ? (\), Why did you come away? A. 1 went to Judge Dawson and asked him for i)erniis- sioii to (joiiic home and see my people, and he said there was no trouble as long as I gave nv ord and honor to come back and stand trial; and I did, went back and stood tii;il when it come oft". (,). Where did you stay in Sitka while you w A. In the barracks, in jail. 1 lived witl They gave us the Jury room to live in. (}. And furnished you with provisions'? A. Yes. (,). You had liberty to leave the barracks? A. Yes: we could go all over Sitka, wiierever we pleased, us long as we behaved ourselves. ^>. Did you have to furnish a bond when you left Sitka to come to V^ictoria? A, No; only gave our own recognizance. Mu'hiiol F. Kt'ote, called as a nitiiess in his own u., 1121, line bchalt; testituMl: ^^• r It- there? R tlie marslial. .. 1098, line (>8. A. tlicn^ After you got to Sitka, tell us what was done to you? We were taken before the marshal the night we arrived (,). Who took you? A. The otlicer that had (jharge of the schooner. He took us to the marslial. but Ae did not see the marshal, and we cauic back on board the Vhallenfir with the ollicer. . When you came back what did you do? A. Stayed on the sliip that night. 'i>. Tlie next day what did you do? A. The next day or the day after we were brought before 'udge Dawson. 1 think it was the day after. 332 PERSONAL CLAIMS O^" CAPTAINS AND MATES. E., 1124, liue 33. Q. Wli'.it was done with you when yon got before Judge Daw.son? A. We were charged witli sealing illegally in Bering Sea. and told we would have to wait for our trial until the h'mii would arrive there. Q. Was that told to you i)ersoiially ? A. It was told to us all when we were in the court-house. Q. Where were you sent to? A. We w^ere .sent nowhere. We were let go anywhere we liked on our own bail. (}. Did you give bail. A. Tliere was no giving in it. I had nothing to give, lie told us he would let us out on our own bonds of !?500. Q. Did .\ou come back before the court again? A. We had to go back two days afterward. Q. Wliat happened then? A. We were getting hungry, as there was nothing on board the ChaUewje, and we had to go and see what the judge was going to do for us. Q. What did j'ou say to the .judge? A. We told him how we were situated ; that we had nothing to eat and no place to stay, and he handed us over to the marshal. i^. Where did the mar.sbal take you? A. The marshal showed us a place in the courthouse. Q. That is in the grand-jury room ? A. Yes. Q. You M'ere allowed to sleej) there, were you? A. Yes. Q. 1 believe there was i:<>t a guard ])ut over vou? A. No. (}. Did they supplv you with food? A. Ye.s. (j|. x\nd up to what time did you stay in that way in Sitka? A. 1 think it was the 12th of September wo left. Q. J)nyiu(/ flic daytime i/ou irere not eompeUed to stay in the room!' A. Ao; ice coiiUI // > in mtd out wheuei'cr ice lilcd. Q, Around the ntnrts of isitka .** A. Kt's. (^>. Where did ytm take your meals? A. In some room in the building; I do not know what l^lace it was. i). Was it not with the manshal? A. No; not with him. Q. You had the same things, ])ractically, as the marshal had; you had the same sort of table? PERSONAL CLAIMS OF CAPTAINS AND MATES. 333 the marshal A. As far as I know, yes. (,). Was a table set ior you'? A. Yes. (,>. And you had chairs to sit down to the table? A. Ves. (). And a table well provided for you ? A. Ves. (}. And comfortable for you to eat there? A. Ves. Q. There was no guard accompanied you around the streets ? A. Xo. (). Vou used to go out Ashing? A. I f we felt that way we could go Hshing. ii. As a matter of fact, some of them did go fishing? A. Yes. ( 'apt. Charles E. Rayiior testified relative to tlie nciitmeut accorded tlie captains and niatesof the seized ^^••^^■^^' ^^^^ schooners in 1887: <^ Were you arraigned in 1887, or released on a bail bond? A. I never was either. (}. So far as you know, were any of the mates or captains that were taken to Sitka in 1887, during your presence, ar- rai.iiued or bound over to appear at some later time? A. Xo, sir. ('a])tain Raynorwas testityino- relative to proceed- iuLi's after he arrived there on the AlUe I. AJfjer, which ^^ig-^^'^^' ^^°® was seized on the 2oth of An;j,iist. ( 'a])t. James 1). Warren, exaniined relative to theK., 1267, line treatment of the masters and mates in 1887, said: ^" (J. Alter the seizure of the vessels in 1887 did you see the captains and mates there in Sitka? A. Y'os. '»>. Thej' were all in Sitka together? A. Y^es; 1 don't remend)er how many, but I know they \v( re there. (t>. And wire they in r-intody, any of them, tinder arrest in null way, or natrained af their liberty? A. No more thdii bonud over, I think, (i. Do you know wliether anything was signed over before tli(! order for release came? A. I would iu)t Hue to say positive. Q. You were treated like other captains there, were you not? "J S34 PERSONAL CLAIMS OF CAPTAiNS AND MATES. Vol. 5, Amer A. I know what was done with u\e. Q. You were not made a pet of specially? A. I don't know that I was. Q. And what was the treatment accorded, so far as you knew — you were captain of the largest tleet that went in the jiort at that time — by the United States authorities? A. I was called into court, and the captains and mates with me, and we were bound over in our own recognizance to appear at the trial. (^). ]>id you sign anything? A. I don't remember signing anything; I remember we had to hold up our hand in court. Q. And then you were told to go wherever you liked? A. As long as we were back at the trial. Q. How long after that were you notified of your release? A. I think it is the 9th of September that we were notified of our release. Q. You are pretty sure about that date? A. I can soon tell. I think that is the date. [Refers to memorandum.] On the 9th of September we were called in and released. Q. Were you all together there, the captains and mates of the detained vessels? A. I think we were. I think all the captains and mates that were there were released; at least my entry goes in that way. We were all called in. Q. And told you were released? A. I should suppose that means the lot. Q. Were yon shut up in any room, or told to go to any room, or unythhui of that sort^ A. I was alloired to go icherever I saw Jit. Q. And the others irere, toof A. I ihlnh the others were under the same liberty. Q. And were you treated in a polite and courteous way by the United States marshal and authorities? A. 1 have no fault to find with that myself. These claims, which, when oi'iiin)eiit on Ix^liiilt" of (xreat liritain, radically differs from the claiiii as presented by the testimony of the claimants at \'ictf>ria. The evidence offered relatin<>' to the cost of supplying- Mmisie's trading- station, the cost of c'(]iiipping a sealing vessel for a hunting- voyage on tlic west coast of Vancouver Island before tlie de- parture of the shij) for the voyage to Bering- Sea, and the vouchers placed in evidence, aggregating about S6,000, which, according to the claimants, rep'- resented the cost of outfitting this small schooner of 28 tons for a sealing voyage in Bering Sea of two months, receive no consideration in the British Argument. The Carolena entered Bering Sea in 1886, about tlieu., 376, line 13tli of June, and connnenced hunting about the 1st of July. She was seized on the 1st day of August by the United States revenue cutter Corwin for viola- tion of the municipal laws of the United States pro- liihiting the taking of fur seals in Bering Sea. The cutter took her to Unalaska, dismantled her, and thereafter the vessel, outfit, and cargo were libeled by K»52. the Government of the United States in the United States district court of Alaska. The inventory of the ^ p/\t^- ?• articles on board, as prepared by the officers of the Exhibits' cutter, is in evidence. p-^^- The decree condemning- the vessel was entered on the 4th day of October, 1886. She then became a total loss to her owners. ^ .v.. , ... riie property described in the inventory is th3 run- B s 22 337 66. A u . swerofthe Unite d S t a t e ss Pleading. No. 1. 338 THE CAROLENA. niii}4" <»ear aiul necessary eciuipmeiit i>t' the vt'Sisel. 'I'liere were but a few articles removed from the (V/;- olcna for wliidi the United States, in any event, would b3 liable to pay beyond the value of the vessel. The i)ro})eri,y taken, not in(;luded as a part of tlie vessel, is set out in a receipt f^iven to Captain Abbe} , ^G ^B a' <^<^"i"^^^^^^"i& *'i^ revenue cutter Conrhi, by the United No. 1; Ex- States marshal. The pn>perty there described coii- mbits, P}5Jgtsof 68;') fur-seal skhis, 12 ])uj) skins, 1 hair-seal skin, 1 yawl, inventoried by error, 4 canoes, 4 j^affs, 2 spears, 13 baj'-s of Hour, 2 boxes of bread, etc. The other articles named are either of no value or belong pro})erly to the ship. ^60^^^' '^°* ('apt. Charles K. Kaynor was })resent and saw Lieutenant Cantwell take the inventory. There was some evidence offered (jn behalf of the claimants showin**- that j)rior to the time the invcntorv was taken by the officers of the cutter certain pro- visions were removed to the steamer St. Paid for tlie purpose of su})plyin<>- the crew of the Carole na on their trip to San Francisco, where they were sent at the expense of the United States. David Russell, a witness called on behalf of the claimants, stated the amount of provisions that were R., 584, line taken aboard the .S7. Paxl. The value of the articles ^^' is inconsiderable. The vessel, being- a total loss to her owners, tlie measure of damaji^es is the cost of replacing the ves- sel at the port of departure in the condition in which she was when seized, together with the value of the seal skins, guns, and canoes on board, and the su})plies not pro[)erly a jjait of the ship. The value of this vessel, of about 28 tons, has been discussed at length in another part of this Argument. The amount charged for the four canoes and outfit ^53"'^^' "°"is exorbitant. Captain Warren testified that $20 was the cost of the canoe on the Sayward. In the ached- the vossel, •on I tllO Cdi: event, would vessel. ii part of tlie )t{iin Abbey, ly tlie United ascribed coii- i, 1 hair-seal loes, 4 j>-affs, a, etc. The ue or beloiiff ^nt and saw tehalf of the lie invontorv certain pro- Pmd for the Carolcna on were sent at •ehalf of tlie IS that were the articles owners, the ing- tlie ves- M)ndition iu th the A'aliie ard, and the 8 tons, has >art of this >s and outfit lat $20 Avas I the schetl- THE CAROLENA. iik's pre})ared l)y the owner of the Ada, the cliarjie is made, 3 canoes, 84(); being- somewhat oxt'V 815 ea(!h. Tlic testimony of other witnesses in the Ivecord shows Ijcyoiid question that the values placed upon these canoes by Munsie was fictitious. John Cotsford testified that one of the canoes was l)ou its, p. m. Argun"'nton behiiif o f Great Urit- ain, p. 102, line 15. Voucher No. 30, Ex. Xo. 10, Exliib- its,page 19. 340 THE CAROLENA. tain of tlic sliip. There is no testimony tliat O^iilvic liiid tile money at the time of the seizure, and unless the (»\vners of the ship intend to charj^e the "iHcersof the United States cutter with misappropriating- this fluid there is \u) reason for tlu^ claim, a., 499, line Cyautaiu Oii'ilvie wandered off into the woods at Sitka, and was afterwards found dead. The Tnited States denies any liability whatever for this money, and there is no evidence that it wjih ever in the possessicai of the United States, and if it had been taken by the officers of the Uniteu States from CJaptain ()<>ilvie, it trnuld haw hern rctunnJ. The charji-e for rifles and shot^'uns is out of all proportion to their real vahie. The item "Ikdyea's bill, >'i:')(V rests upon the fol- lowing- testimony of Munsie: R., 139, line Q. The contract with Mr. Belyea was uot in writing, I 44- think! A. No; not in writing. Q. It was made up at the time, though? A. It was made at the time he undertook to look after the case. Q. You are bound to pay hiui $750? A. If I do not get the claim I might not pay him; I might object to it. Q. But you agreed to pay him $750, at all events, for his services ? A. There might have been a condition. Q. Was there ? We don't want any statement as to what might be, but what is. A. I won't state positively whether I agreed to pay him; positively whether the claims were paid or were not paid, but I rather think there was an understanding that if they were not paid I would not have to jiay him quite as much. Q. Did you name any amount that you should pay him, at all events? A. I do not remember that there was. E., 139. Regarding- the charge of Willoughby Clark "Charges at Sitka, 8.500," Munsie testified that he regarded the charge as excessive, and refused to pay it; but that Clark seized some skins of his in Sitka and rather than have a lawsuit regarding the claim, THE CAKOLENA. 341 IiJit (Kilvie Jnid unless ' rii(!('rs(,f i"iatiiio' tliis W(K)(]s at wliatcvci' tllJit Jt \V}|S ^, siiul if it litcu Sfjite.s ^ out of all )oii the f(»l- in writing, I look after the tiim; I might ^ents, for bis it as to what to pay him; uot paid, but if they were luch. i pay hiui, at iby Clark 3d tliat lie sed to pay s in Sitka the claim, lie |iai(i tlio amount. Tliis sei/ureof skins was inado s('\(ial years after lHS(i, and because Mr. Munsie was wiliiii^i' to allow Clark t<> secure from him an (exorbi- tant sum the (iovernment of the United States is not lial)le to repay that exorbitant am()unt, expended on iici ount of his own ne^i'ligence in not i)rotectin<( his interests. The item 8302 for insurance covers the charge for a xcar. The insurance would be canceled innnedi- ately upon the boat Ijeinji" seized and the j)remium, if jiaid in advance, refunded. The ])olicy is not in eA idence. If the owner is j^aid for tlie value of the skins taken before the seizure he will receive the lienefit of the insurance to that time. The item "J. 1). Warren, expenses to Ottawa, put- tin^2r)(>," is absolutely without testimony showinj^ any time or money ex})ended in connection with this I'laim. In any event, tlie United States is not liable for the time of the claimant used in the endeavor to secure from this Hijrh Conunission an award. The item "Ex})enses remainder of crew, saij $50," is w ithout any testimony to sup})ort it. The item ^^S(uj one-half slop chest, SlOO," is not taken from the Record. The projjcrty aboard the schooner was inventoried l)y the United States officers, and the only other ])r(>pertv removed from the vessel was that put aboard the St. 'Panl. The claim for "estimated value of provisions and annnuiiition which would have been left after a full \<»ya<»'e, say $200," is covered by the value of the jiroperty inventoried by the officers of the cutter and tlie proi)erty put aboard the St. Paul. 342 THE CAROLENA. A jMU'tioii of the small items following- in the selied- ule belong" pro])erly to the ship. The item, "Estimated value of articles that were doubtless on board vessel, but which can not now l)e specially mentioned, say ^200," is Avithout fomidit- tion. The officers of the revenue cutter specitically men- tioned the pro})erty taken from the Camlcna, with the exce]ition of the projierty taken aboard the St. rdnl. The United States seized and retained the seal skins. Their value is the market price ruling in Victoria ;it the time they would have been ])laced upon that mar- ket tV)r sale by the ownerw. The claim tor estimate*! catch and for damages 'n the year 1887 can not be allowed. This case is one of total loss, and m» decision van. be found in support of allowing futurt* »-arnings in ca^e of total loss. Tlie item "ex])eiises and hardshi]) of crew, !) men, at >>')(»(') each, >>4,r)()()," is without foundation, in fact; and its consideration is l)eyond the jurisdiction of this Hisi'h ( 'ommission. The claims are personal claims, aiui ace not includegethcr witli all personal claims, (-ap- E.,500,iinei. tain ( ^u'ilvie, how(»ver, died l)v his own hand, and in his cam^ there was no trial. R., no. Although the claimants have not asked this High Cotiiinission to award 86,000, (daimed as the total ex]>enHe of outfitting the CtiroJoKi in liering Sea tor the voyage of 188<), the amount lias not been les- sew*ed, but, on the contrarA', as shown, is increased without any ap))arent reasttu, from the time that the claim was filed at Victoria. The United States the total 1^' Sea for been les- iiicreasHfl le that the I Hechtel, ' Ameri(;ii, was an owner of hall" of the Carole tni at the time of rlic seizure, and that this High Commission can award 11(1 . To whai extent did you furnish money in the purcliase of the ship? A. Five hundred dollars. Q. And what was the total cost of the shii) ? A. I was {jiven to understand that it was $1,(100. (). You furnished half ot the purchase price, as you under- stood it? A. Yes, sir. (^1. You were at that time, I think, an American citizen? A. I was. . And you purchased her jointly with Mr. Urquhart, who was a British subject? A. Yes, sir. The wntnesH tlien stated tliat the sliip was repaired, and that her total cost after repairs was ahmit s2,()00; i^-gi023, line that tile vessel was registered in the name of (Japtain ( r(|uhart, and that he had an agreement from him Line 40. stating that he was a half owner. (}. Now, you got some proceeds when the vessel was sold, Line 50. (lid you not? A. 1 don't know tliat I did, sir. (}. Well, was the sale accounted to you? A. The sale was made by Cai)tain Urquhart. (.). Who to? A. 1 understood to Mr. INfunsie. (^ Now, do y^u remember what Mr. Urquhart told you he liatl received tVir the schooner? 344 THE CAROLENA. E., 1024, line 8. A. I do. Q. What was it? A. No ; there was no writing at all. He rendered m*^ !5il,000, Q. For your half! A. As he told ine it was for the half. Q. Stated to you that he sold it for $2,000 and your half was $1,000! A. He so stated. Q. And that was the sale to Mr. Munsie! A. So far as I can understand — as I understood it at the time. Munsie testified: R., 87, Hue 8. Q. In 1885 did you enter into negotiations for the purchase of any part of the Carolena^ A. Yes; 21 shares. Line 22. Q. When you were buying the one-third and Mathesou another one-tliird from Captain Urquhart, was there any valuation put on the vessel at that time! A. Yes; about )i!S3,800 Q. Were you to pay Urquhart at that rate! A. Yes; at that rate. Q. How did you pay for that vessel then ! Did you pay all that amount of money in cash! A. No ; I did not. Q. Did you pay a part of it in cash? A. I paid part cash. Q. And the rest was paid how ? A. In two promissory notes. Q. Have you those promissory notes in your possession now! A. No; 1 have not. ^B^ci%o" ''^'^ '^'^' of sale tivm Donald rniuliart to William 1, Exhib- Minisie, dated danuarv 21, 1885, for 21 shares, or its p. 3. one-third of the Caiolrmiy is in evidence. The considei'ation expressed in the bill of sale is "!*^6(!7 (said eonsideration money bein^" value of one- third interest)." R.,87,line36, Q. Was Matheson buying on the same arrangement! A. Yes; on the same rate. The bill of sale from Donald Ur(|uhart to Heiny Matheson, who, at tlie time of the purchase of 21 shares ))y William Munsie, also j)ur('hased 21 shares, or one-third of the vessel, from Ur(|ulunt and Hickey THE CAROLENA. 345 ed uif 81,000, and your balf food it at the ' the purchase nd Matliesou as there any Did yoH pay Lir possession to AV^illijini shares, or 1 <»f" Srilc is ilue of oiie- jement ? ' to Henry liasc of 21 21 si wires, nd Hickev No. 1; Ex- hiltits, p.4. (flic hill of sale bein^ g-iven by Uniuhart because the lioiit was reg-istered in his name),, is also in evidence. The consideration expressed in the bill of sale is "the SHIM ot ^y William Munsie. liut Munsie states that each time, in addition to paying 86G7, ex])ressed in the bill (»t' sale as the consideration, he gave promissory notes or additional cash for the bahmce of the purchase jirice, and tliat the })rice ])aid was always at the rate [■ >^3,8()0 for the entire ship. liiasnuu'h as l^atrick Ilickey testified that the ship cost liim and Urfjuhart about 82,000, and that she was sold for 82,000; that he never received but ^l.OOo for his half interest, William Munsie, if this were all there was to the transaction, shows himself til he unworthy of belief The promissory notes which lu! claims to have given in addition to the con- Mihration of 8()(j7 are not in evidence. No check was nfi'ered in evidence to su})port his contention that any additional sum was jniid, (uid no icituess sup- jtoiiiil h't.s tcsfitnoH//. (hi the l{)th day of June, 188'), Munsie purchased hum Matliesou tlie one-third interest which he had '^^i; ^": \,^- ... .^. , ^^. Is. Cl. No. inionred trom urquliart and llickey, and the con- siih-ratiou expressed in that bill of sale is "$667." A( cordingly, on the l&th of June, 1885, William .Munsie was the owner of the Carolena. He had paid, a((i>l,334. Munsie stated that lie b* arrowed 8500 from Bechtel at this time. This was to avoid the conclusion, which the instru- ment itself would sug-g-est, that he had mortfi^ao'ed to Bechtel one-third of the vessel for sfU!?, exactly what he had paid for it, according- to the bill of sale. R., 89, lino Q. What I want to get at is this : The consideratiou in *^' that mortgage is stated at $667 ; was $607 the amount you actually borrowed, or was it more? A. T borrowed about $500. Q. There seems to be the same amount stated in all these documents. For some reason or another it was i)ut in here at $667, but that was not the real transaction? A. I think the amount was put in to coVer interest. 1 would not be positive, but that is about the recollectiou I have of it. Q. Did you settle that mortgage ui> in the following June! A. When I bought Matheson out in June I borrowed some more money, canceled that mortgage, and gave one for $1,000. I borrowed that from Mr. Bechtel. Q. Is that the second mortgage you gave to the same man! A. That is the second mortgage. ^fl ^f'l'*'^' ' ^'i^ mortna, thiit he •el. Muiisie was and he had )n expi-essed 'nnsie stated !it tluH time, the iustm- ioi-t Bechtel indicate ordinary trans- actions. But if Munsie i)aid, as he swore, 83,800 for the l)oat, the considerations ex]»resset entitled to credence. The niortg'age of February, 1885, given at the time I that Munsie owned two-thirds of" the ship, covered I but one-third the shij); and the mortgage of Jiuu', 1H85, when Munsie was the registered owner of tliel entire ship, was ])laced on 32 shares. Wliy Muiu^ie, when he owned the entire ship, sliould )nortgage oiilv half of it, is unexplained, and being- unexplained is I conclusive that Hechtel owned first 21 then 32 shares, f Exh.9, G.B. The mortgage of June IJI bears on its face con- i,Exhibit9, vincing evidence of the fact that it was not given t(i P«6. secure the payment of any sum of money whatever. The words "together with interest thereon at the rate of" are stricken out, and the words "without interest" inserted; the words "per cent ])er annum on the day of" stricken out and "on demand" inserted; the words "next and secondly, that if the said principal sum is not j)aid on the said day or heirs, executors, or administrators, will, during such time as the same or any j^art thereof remain unpaid, pay to the said interest on the whole or such part thereof as may for the time being remain unj^aid, at the rate of per cent per annum, by ecpial half-yearly pay- ments on the da}' of and dav of Exhibit 9. in every year," are stricken out, and the words "guns, ammunition, small arms" are stricken out. llie ])o\ver of sale clause is avoided by the day and year being left blank. Munsie })roduced receipts showing that the interest was ])aid on the second mortgage for 551,000. If the High Connnissioners will inspect these original receipts again, the conviction will be linnly estab- lished that no interest ever was paid on this mortgage. The receipts have the j)eculiar characteristic of ])e'm^ consecutively numbered, although extending over a period of nearly five years, and of being written on the same forms. On their face thev bear eviden(!e ot lit' owiiersliij), en at tlie time shi}), covered 5-ajjj-e of JiiiH., owner of tlie Why Muiisif. lortj^-fig-e only nexj)l{iiiied is len 82 sliares, its face con- not f^'iven to ley wliatevei', on at tlie rate lout interest" in on the dav d ; the words ncipal sum is irs, executors, e as the same y to the said irt thereof as at the rate of f-vearh- i)av- day of ind the words stricken out. the day and it the interest ,000. If the lese oriji-inid firndy estab- his inortoao'e. istic of beiii;j: ivdin^ overii 'g: written on r evidence of THE CAROLENA. 349 iciiii; all prepared at the same time. Muiisie testified that some of them were duplicates, and that he lect'ivcd thfciii from Ik'chtel recently. "When 1 was iiatJH ring" u}) my pa])ers I asked Mr. Bechtel to given., 90, line 14. iiic a coj'y <»f the recei})ts." Bt'clitel testified that Munsie had never said any- 1^-'/^^' ^'"® liiiiji to him about any duplicate recei[)ts; that he had i;i(l no Idank receipts for the last four or five years ike tlie forms used in the receipts })ut in evidence; and that the last receipts that he had g-iveii Munsie were given at least four years ag"o, when ]\Iuiisietold liin tliat he had lost one or two. Munsie was cross-examined fully regarding- these tiaiisactions. He stated, in order to explain how itK.,ii9. appened that he paid >i500 in cash in addition to the sum expressed in the bill of sale at the time of the [lurcliase of an interest from Urquhart and Hickey, that he sometimes kept $l()/)00 in cash in a liitle safe^-, 120, line in his office. A re-reading of the cross-examination of Munsie relative to this transaction will coimnce the HigliR. 119- Coniiiiissioners that the impression created at the hearing at Victoria that these mortgages were merely executed for the purpose of securing to Bechtel his interest in the vessel was the fact. Munsie stated that he did not know that the (kiro- r., 135, line ^nia went out on a sealing trip on the coast in the ^' 'pring of 188G; that she might have brought up a fe\\ seals, but that her principal object was to go down to secure hunters. The impression that Munsie endeavored to make is that all the supplies put iibdard the Carolena in February were for the voyage to Bering Sea, and for that reason he does not state tliat the Carolena had been sealing on the coast in the spring and used a part of the supplies. The witness, Serault, testified: ^'la^^^' "°« <•>. On whicli trip of tbe Carolena did he come to Victoria? 850 THE CAROLENA. A. I think it was when they quit sealing on the coast, i near as 1 recollect. K-i 645, line Q, They went lip there first and before the canoes were! put on board, and went sealing in the spring, in February, on the coast? A. Yes. Q. How many Indians went on that trip, the first trip, when they went sealing on the coast ? A. That I don't know. I think it was six or eight canoes] the Carolena carried. ^32^*^' ^'°* Andrew J. lieclitel was called as a witness ontliel part of the elainiants and testified that he had no in-| terest in the Carolena in 1880 except as niortgajree. ^30^*^' ^"'* ^^ ^^'^'"^ devel()])ed on direct examination that he bad] signed as attorney in fact the claim of James Ogilvie, master of the Carolena, for damajfes from the United] States. The witness stated on direct examination: E., 147, line Q. And you were on board of her before she sailed? ^' A. Yes, sir. Bechtel said on cross-examination: Q. When you went on the ship, did you go below? A. No; I did not. Q. Didn't go below? A. I believe I did go in the cabin. Q. What did you go there for ? To say good-bye to ('aptaiu Ogilvie ? A. Yes. Q. Just went on to visit the caiJtain? A. Yes; to see the captain ; that is all. John Cotsford, one of the hnnters of the Carokmi, was called by the United States as a witness rej^ard- ing- the voyajje of the Carolena, and testified: B. 375 line3. Q' Whom did you tell this to? A. Mr. liechtel. Q. Was Mr. Bechtel at that trading post that spring? A. He left here on the schooner with us and went down. Q. On what schooner? A. The Carolena. Q. Mr. John A. Bechtel, or Andrew Bechtel, otherwise called? A. Andrew Bechtol. Q. He started on the sealing voyage? R., 153, line 30. )n the coast, aa le canoes were , in February, the first trip, or eiglit canoes witness on the lie liad no in- mortgagee. )ii that he had ames Ogih'ie, m the United 'caniiiiation: he sailed? } below ? lbyeto('aptaiu tlie Carolem, itness rej^ai'd- tified : hat spring! d went dowu. htel, otherwise THE CAROLENA. 361 A. Tie left here on the Carolena and went to Clayoquot witli us. Q. You knew him pretty well, did you? A. Ves, sir ; I knew him pretty well. I had been acquainted with liira a year or two before that. (). Was he carried ott' on the Carolena by mistake or apiiiist his will? A. I think not. (^>. He did not say good-bye to Captain Ogilvie before he carried him away, did he? You did not hear anything about his coming on board to say good-bye? A. No. Q. Well, who engaged in the purchase of canoes at Clayoquot ? A. Mr. Bechtel did the most of it. (\)tsford also testified that Mimsie and livchtd em-^^-'^''''p IJ"** phijli'd him to jfo as a hunter on the voyage ot" 188(5. James Mnnger, a witness called on behall" of Great Ihitain, and one of" the hunters on board the Carolena, testified: (}. It has been stated that Mr. Bechtel was on board atK., 631, line tlie time she went up — is that correped at Clayoquot. ^^• i). Was John A. IJechtel on board when you left here and stopped there? A. \'es, sir. Michael Serault, a witness called on behalf of Great Hritain, testified: <^ Did you see Mr. Bechtel on the occasion of the second R., 644, line visit of the Carolena to Clayoquot? 19- A , L saw him when she was on her voyage to Bering Sea. riiese three witnesses conclusively establish that Andrew J, Bechtel swore falsely when he testified that lie went to the Carolena when she left for Bering Sea to say good-by to the captain. The witness undoubtedly thought if lie said he was aboard the Carolena on the voyage the conclusion would be 352 THE CAROLKNA. (Iniwii that he was a part owner of tlio ('(iroJ<)/a. anil he tlieret'ore desired it to a[)pear that he was in no way eoniiected witli the voyage. Beehtel testified: R., 145, line Q. Uow l(Hig have yoii been engaged in tlie sealing busi- ^^' n ess— about liow long '. A. I can't say exactly as to a month ; over three years. Q. About three years, yon mean '! A. About three years — longer, E., 145, line i). Prior to 188(5 iiad you anything to do with the sealiii;: 25. business? A. No, sir. Q. Had you anything to do with shipping? A. No, sir. Q. Did yon know anything about ships up to that time? A. No, sir. Q. Had you owned any ship before then ? A. No, sir. Q. Had you any share or interest in any ships of any kind up to that time ? A. Not any. Q. And, in fact, had you in 1886 any interest in any ship? A. Not any. Q. Or in 1887? A. No, sir. Q. Or in 1888, as a matter of fact? A. No, sir. Q. Or in 1889? A. No, sir. William Miinsie was a witness called in his owu behalf in the case of the Pathfinder^ claim No. 14. The register of the Pathfinder, wliich Mr. Munsie knew was in the possession of the United States, disclosed these facts : That William Munsie had the entire title in his name to the Pathfinder up to the 18th day of Exhibit 99 December, 1885; that upon that day he conveyed 14," Ex8.,p! sixteen shares to Frederick Cariie, jr., his partner in 274. business, and on the same day conveyed to William Munsie and Frederick Carne, jr., joint owners, thirty- two shares, and on the same day William Munsie and Frederick Carne, jr., mortgaged sixteen shares to Andrew J. Beehtel, for 81,107, and sixteen shares to THE CAROLENA. 353 'arofo/fi, iiiid 10 was ill 11(1 e sealing busi- tbree years. ith tlie sealiuji ) to that time ? ipe of any kind it in any ship! Jiechtel's brother, for in his owu laim No. 14, Vlunsie knew :es, disclosed le entire title 18th day of le (conveyed s partner in 1 to William ^ners, tliirty- Munsie and i\ shares to en shares to M. X. lieclitel, Andrew J. si. 107. .Miinsic liad testified in the Carolci/tf case that hew., 104, line |)iircliased tlie I'atlijindcr at Haht'ax in the year ISHo, ^^' at a cost of abont 84,500, "or within a few dollars of it, (»)ic way or the other," Accordingly, although th<^ ailidiivits filed at Paris in connection witli the claim i)\' the J'atliJiiKlcr did not disclose that Andrew J. Ik'clitel had any interest whatever in the Pathjitider or in its voyage, Munsie decided that two such j)ecul- iiir transactions appearing- on the register would, per- haps, not be viewed in the lig'ht that he \ ould have tlu'iii, and although not testifying- on direct exaniina- tioii in the Pathfindrr claim that Hechel iiad any in- terest in the Pathfinder, he said, on cross-examination, ,. jgg^ jj^^ tlint Mr. Bechtel, although he had no interest in the 21. I'dtlijinder, was interested in the voyag-e and venture ill the year 1889, He also stated tnat Hechtel a((|uired an interest in the venture of the Vidhfinder ill the year 1886. Tliis is a positive denial of the sUttcuient of Andrew J. Ihchtel, that he was ttoi intcr- I'sftil in the sealiuf/ business until about three f/ears prior to the time that he wa^ testifying, whieh would be 1s or 1893. Munsie had testified, moreover, on direct examina- tion, that the total cost of the Pathfinder was i^4,428. The sum of the two mortg-ages appearing- on the registers, as given to the Bechtels, would be S2,214, or one-half the value of the Pathfinder. These pecul- iiir proportions existed in the case of the Carolena, iiltliough Mr. Munsie there endeavored to establish that he had paid money in addition to the considera- tion expressed in the bills of sale, in order to avoid the necessary conclusion that Bechtel was an equal owner. But Patrick Hickey, who swore that but ^2,000 was paid for the vessel when Munsie purchased her, contradicted him and proved conclusively that the B s 23 ■ ■ '1 ^mm iilli 354 THE CAROLENA. 277. moi't^iies I'j^jj^l' 27,;". which are in evidence, exe(;uted l)v Munsie & (^iiriic Exh. 15, i;. to Hechtel, have the same i)ecnliar characteristics iis Exbs." p! the mortr^ag'es executed on the Carolcna. Tlnji (k not hear intrtr.st, flic interest clauses heing erased. An(h'ew J. Bechtel testified that lie was not inter- ested in any slii|) in the sealing- business until about three years before the time he was testifying. This was before Munsie had decided, in order to attempt to save the Carolcna claim, to acknowledge that Bechtel was interested in the venture of the Path finder \\\ the year 1889, and to give the history of their dealmgs in the years 1886, 1887, 1888, and 1889. The oiil} conclusion which can be drawn from the testimoii}^ and from the exhibits found in the Record in connection with these two claims is that Andrew J. Bechtel was a half owner of the Carokmi at the time of her seizure and a half owner of the Pathfinder at the time of her seizure. The impression created by these witnesses at Vic- toria w^as that these mortgages, as said by one of the High Commissioners, were "wdiitewash mortgages" and that im})ression was never removed and a reading' of the Kecord does not iioav remove it. In the schedule a])pended to the claim of the Carolcna in the British Argument the claim is made "Net value of approximate catch for 1887 was THE CAItOLENA. 865 sj.ooO." No ('\i(l('iice is citi'd to su])|tort this cljiini, Mild iiiiisimicli iis ii decree of" ('oii(leimi)ition iiiid tor- fcifure was entered jiiid tiie \ t'ssel iieNcr returned to licr owners, iind therefore ji totsd h>ss, no basis for this chiiiii exists. The claim was made at tlie liearinji' tiiat l)y reason of rlie h'tter of Xinemher 1, ISSS, from the I'nited '^•' ^05. Stii^',-.^ marshal for the District of Alaska to "Mnnsie t'c ('(!.," inforniinji' them an order had been entered releas- iiiii' the CarolciKt t(> her owner, the case became one (it detention and partial loss, rather than total loss. The reply of Sir L. S. Sackville-West to Mr. Hayard, 'i-««- the United States Secretar^• of State, acknowledyinii- tlic receipt of a note dated the 3d of Febrnary, 1S!S7, contained the information that orders had been issued diicctinfi" the discontinuance of all ])roceedin<>'s and tlic (lischarMes tb.it a.>> ecU'ly .in A])r!l "J, ls>«I, Mr. Muusie whs tulviwd tliat he (-oald ohTaiu his ^l'^• (sel V)v goiiiji' to rnahiska. He took uo styps towinl retakiiiji' posiH«^hi«»ii of the vensel, ami treated her as a total h>Ks. It. ;iT this time. Miiiut^ie had taken st»'|i> to reelaini hit* j>ioj>eit\' there miji'ht he soiiu- i)asi> t<)r a claim of det^iititm; but .solely hetjauHe at a niiuh later time, siud jafter the vessels had Iteeome wortli- loss, the IJuitied .*nates formally oi:ere«l to return the pjn^perty lor diplomatie reasons, the fact that tin; owner liiiriKelf had aba\... >ned the veswel and treated her as a t«»tai loHf* is n« r r -^-moved. TAr ocsm'l wax i> i>uh'n'(l to tlip nivmr in April, JHSh (mtl flu- feini'fr irfu.sf/. The subsequent tender on the psETt of the United imates has uo bearing- upon the na- ture of the claim, l>«-i-ause ])rior thereto the vessel had lj«eu considered and treated mjs a total loss by her owners. the thornton. Claim No. 2. The TItoniton was a .scliooner of 22. 3<) registered rolls, with auxiliary steam power of small (•a])aeity. Ill I'ehriiary, 1886, she was chartered hy Joseph Hoscowitz, and em])loyed in sealiiil /thin. She commenced seal- iiiii' on the oth and continued operations until she was seized hy the United States ry the proctors for the claimant askinji* to have the decree set aside, which being' overruled, a notice of appeal was filed on behalf of the (daimant The apj)eal was never jierfected and no proceetl- iiiL^s were taken to arrest the sale of the pro})erty. In the autumn of 1886, and ])resumably a short nine after Warren received notice of the decree of toiteiture, he purchased the schooner Marij Tai/lor to !{.. itin, line 10; 1613, line 10. W.. I0H7, lino IL'. K., 1!»78, line 11». App.H. 11.92, line 32. A])]). H. p. 9"), lini- 32. R., 198,"), line Aiip. B, p.9H, lin." 13. App. H, ]>.!»«, lino 25. App. B. p. 87, line 52, Ajip. B, p.8!», line 12, Ajip. H, p. !tO, line 1. App. It. p. 90, line 11. 357 358 THK THOIJNTON. take tlie jilacc of tlic vessel seize 11W1 1- Q- What did yon nse the jlf^aw/ 7>n//or for afrv vou bought JK., IIM, line 1 J, " ' ' . o 26. lier* A. Sealing. Q. Wliere? A. On the coast and in Uerinj;- Sea. Q. For what sealing season ? A. 1887. Tlie jmrclinse of tliis vessel for the .sole object of replocinfi thr T//ornfotf, lier eiiiploynient for the same pur})oses as tlie seized schooner, the abandonment of tlie a})])eal to the United States Suju'eine CN)nrt, and ^'^g]^'^' """tlie entry of Fe})rnary 28, 1887, in Warren's journal that the vessels were to be sold, establish eoiu'hisively that the schooner became a total loss to her owner and was so treated by him. At the time that the vessel was ancliored in the harbor of Unalaska, an inventory was made bv an officer (A' the Conrit/, which was offered in evidence ggj^P- ^*' by (ireat J^ritain, ;uid is a ))art of Exhibit No. 45 Ai). ]3,_ p, ((t. B.), claim N<>. 2. There also a] )pears in tlie same 85, line lo. j]xhil)it a list of the arms and annnunition found on board the schooner at the time of seizure. The arti- cles contained in the inventor}' and in the list were delivered to the United States jnarshal at Sitka, and were the only property seized. In the schedule which appears in the op))osiiu>' Argu- ment setting- forth in detail the damages claimed for the Ihomfott, there is included an item for "Premimn ^•' ^^^^' ^^^'^ of insurance ))aid, 8410." Four policies of insurance R., 1091, line upon the schooiier Thornton and her cargo were offered in evidence by the claimant. 0'" these, one upon Br.Arg.,102. 3. THK THORNTON. 359 testiiiioiiv 'Oil provide a or you boiiglit iole object (if ■or the same iKloiinient of 3 Court, and reii's journal conclusivelv ) her owner lored in the made by an in evidence libit No. 45 i in tliesaine on found on ). Tlie arti- :he Hst were it 8itka, and )osin<>- Ai-£ insurance were offered , one upon till- inryo e.\i)n-e(l on ,]\\\\ 3, 1S8(». 1 wo others, one ''•• ^'^'^'' ^'"® 1 I 11 1 ^1 ■ ^1 • 1 1 ^-; line 50. u]i(iiirlu' luiJI ank liavni<>' ceased thr(Ui*i-h vessel havinjr been seized l)\ the I'nited States (iovernnient and )('turned three periods of lis. Kid. [and 13s. 4d.j a period." 'I'heK.j. loito, line (ine remainin<( policy was for €600, at the rate of 8 '" niiiucas |)er cent. The risk was declared to commence on the 11th Mmvii, 1S86, and to end on the 3rd March, ISST, both (lays inclusive. The owner of the vessel had tluM-e- f(»re I'eceived the benefit o'f this policy up to the time of seizure, and at such time, the liability of the under- writers havinust, and the policy which e.vpired on the 3rd July, the (i\\ uer had received thd full benefit of his ex])enditure. It is therefore tdaimed by the United Stales thai no iiward should be made the (daimant under this item. riuA (daim for "value of articdes in inventory not prdjKn'h' belonfifing' to t' ship, on board at the time ot' seizure," is based according to the mar<;^inal refer- ence in the British Argument, n])ou a schedule pre-^'^g^^^' ^'"* \)'a\\h\ ivoxw inventories ap))earing- in the lojf of the s(diooner. As the value set o})posite these articles is jiivcn bv James I). Warren, who was not shown to liave had knowledge of their condition at the time of sci/in-e, it is to be ])resumed that they are based upon \\ hat such articles would have cost when new. These vahiations can only be applied l)y allowing a reason- iildc deduction foi- the condition of the articles as >li()wn bv the inventorv taken bv Lieutenant Cant- W(dl R., 967, line 40. The total of the valuations given for these iirricles by Ca])tahi Warren is $330.44. The same statement mav be made in regard to the 3G0 THE THORNTON. valuation of thi* arms seized as o;iven in the Arofu- Tuent on behalf of Great Hritain, it a})])earin<'- l)v an examination of the mar<»'inal references to the Heconl tliat tlie (irtf/ina/ cost is the ])asis of the claim, without any \ liicli were doubtless on boaivl, which can not now be sj)ecitically mentioned," and "))eddinj>-," there is ik. evidence before the Connnissioners. " Expenses and h;u"dshi[)s of crew, thirteen ntrn. at SoOO each," which a])pears as one of the items in the schedule referred to, are ])ersonal (daims. which, not having- been presented to tlu^ Tri])unal of Arbi- tration at Paris, and not hi\vin<4' been included in the "additional claims" set out in the preand)le ()f, and ajtpendix t<», the Convention of February S. 181lfi, can not l>e allowed by this Ilioh ( 'onnnission, even if there was suiticient eviikMict to estal)lish such claims, which the United States insist there is n<)t. THK THOKNTON. 361 B, p. Ill rcf'civnce to tlu* item for Icjiiil cxpt'iiscs nt Sitkji, tlic I {('(•» n'd discloses : *}. Vou cliiirge $500 expenses at Sitka in connertion withK.. ')17, line tlie st'i/ure of tlie Thornton. Wbiit does that mean ? ^•^• A. Legal expenses. (,•. Legal exjienses at Bitkain connecticn with the seizure! A. Well, the captain employed a lawyer uj) there, or a tinii. and it appears that they had arranged to appeal these eases, and he drew on nie for .<' a demurrer App. iiii'l answer to the hl)ei For these services he ap- jicars to have been ])aid a reasonable sum, but the iictiiid amount is not in evidence. The United States rlicicfore claim that the owner did not become obli- jratcd to |»a\ any further sum, and as the amoinit |i;ii(l is not established it can not be allowed. The it(Mn "for trax eliuju', hotel, and other necessary tNlKtises," in connection with the said seizure, a claim lit ^1,000 is stated J)»\ Captain Warren to have beenK-» i''^ -j'i4 (I l)iilJ; '^/imJ' He stated that in connection with rliix \\i' made tw'o tri])s to ( )ttavva, one to kSitka, and rlijit tHH' of his trips to Ottawa was extendcvl to U ;i>liin}iron in ISilO. Tlie l\('cord further disclos<»s: <»». And you charged for traveling expenses $1,<>()0 in eachR., !>17, line case '.' ■8> A. I do not remember what it is in the other cases. <,». lUit you went on business of all the seizures of 1887 iiK^.-ther with that of the Thornton in 1880? A. I'es. <»>. Vou charge $1,0(»0 in the Thornton case. You do not liicui to say, do you, Captain Warren, that you expended ••^l.dOO in traveling for the Thornton in 1886? liu« 362 THE THORNTON. A. No; I hiive not stated that I spent a ■'j'ljOOO, a (•onsid erable time. Q. You undertook all yo.ir claims together when you went . to ( )ttawa '! A, When 1 went to Ottawa; yes. WaiTiMi at tlu' time was the re})reseiitative of the other claiiiuuits against the Imited States. The evi- E., 9(17, linedence fh^es not esta})hsli that in the case of this vessel the sum stated was (.•xi)eii(le(l, and from a com|>aris(>n of the amounts charj^ed tlu^ otlier claim- ants as their pro rata share, which was about 8l")(i, the claim here made is not only excessive and ex(»rbi- tant, but can not be legally recovered against the United States, as any such expense was incuiTed iu the ))reparation of the claim for presentation to the government at Ottawa. Thii item "Fee to counsel, and for other legal ex- penses in connection with the [)re})aration of the claim," is founded upon no evidence of the liability of the claimant U) pay su(;li smn, or of the services which were performed for which the charge is made. It is therefore claimed that there is no basis on which an award can be made for this item. The charges in the schedule of 86,958 for "bal- ance of catch," 8!)00 for coasting purj)oses for three months, and of 85,000 for "estimated coast and iieriiij; Sea catches for the year 1887 (net value of)" are for prospective profits, and can not be allowed in any event, the vessel having become totally lost to lier owiun-. The claims for the "value of the vessel, 87,000, ex])enses and hardships of crew, 13 men at 8500 each, 86,500," and the })ersonal claims of Guttormseii and Harry Norman, have been c(msidered elsewhere, The damaoes sustained bv rlie claiuiant b>' reason of the seizure of the Thornton were the value of the vessel in the condition she was when seized, on the Ante, p. 305. Ante, p. 819. THE THORNTON 3(13 iimrkit at Victoria at that time, tlio market value of I, .IK -halt' of the articles not pntperly iiu-liided a» a i)art ,it tlif vessel itself in the condition and at the time hvlicii they were taken from the schooner, and one- half of 408 seal skins at the price rulin^- in the iiKirket at Victoria at the time when the vessel would in the natural course of events have discharg-ed her rargo at that port in 1886. THE ONWARD. Claim No. 3. App. B, 101. rpj^^^ Omvard was a schooner of 35.20 re<>-istere(! tons, (Miarlos Spring-, a subject of Great Britain, and App. B, 7- in J Wing- Sea on July 12, coiitinuing until Aug-ust 2, at which time she had taken 907 skins, 507 of which had been transferred to the Favourite. On Aug-ust 2, between 4 and (> o'clock in the morninj^, the Omvard was seized bv the United States revenue steamer Coriv'm. She was towed to Unalaska, where her canoes and seal skins were rem(>ved and turned over to the United States marshal at Sitka. On Auj^ust 28 the Onward, her tackle, boats, and caro-o were libeled l)y the United States attorney for the district of Alaska, and on September 20 a libel and answer were filed <^n behalf of Charles Spriiiji' & Co., claimants of the property. On ( )ctoljer 4 a decree of condemnation, forfeiture, and sale was entered against the schooner, her outfit, canoes, and cargo. A motion on the same day was made on behalf of the claimants to set aside the decree. was filed on the same day on behalf Notice of appeal 364 of the claimants. The ajjpeal was never perfected, and no further proceedings were had on the part of claimants to recover possession of the schooner. THE ONWARD. 3t>6 ( 111 tho aotli (lay of Deceiiilu'r, ISSC, (Mun-lcs Si>rinMilvinurchased his share of the part- 1{.^ 5i,2, ii„e mrsiiip propert}' for about $1,100, hut the Omvard ^9. ints not included in the transfer, whi(*h would have been ilniic had the owners antici])ated her recovery. A liiilt' interest in the claim ag-ainst the United States for the seizure of the Onward was retained under then., wti, line iiiircenient by each partner. This evidence is con- '^-• elusive of the fact that the Onward wi\^'A total loss to her owners, and Avas so considered by them. Wiiile the schooner was in the harbor of Unalaska iiii inventory was made by an oflicer of the Corwin, jiivin''' a detailed statement of the ])r()perty seized Mild its condition. This inventory was otiered in evi- dciicoon behalf of theclaimant, and ai)})earsas Exhibit ^'.i',. ^''. P- No. 32 (G. ]}.), Claim No. 3. .•.o,i.ne.^o. There also api)ear8 in the testimony taken durino- the proceedin<>-s at Sitka a statement of the arms and^pj,. u^ ,;,-,, iiiiiinunition delivered by the Corwin to the United °e20. States marshal at Sitka. The articles contained in the inventor}' and in the last statement referred to are the only pi-opert}- for wliich the United States is liable in any event. The articles covered in the item "unconsumable sealing • mttit" are included in the inventory. (nider the schedule, which ap])ears in the Argument I'll behalf of the claimants, setting- forth in detail the damages clauned for the Onward, there is included an item " Premium of insurance paid, 8240.'' The ^■^g'*''**' ^'°® iiiariiinal reference ij-iven is to a statement of Charles 36() THK ONWAKl). S|»rin;;', ill wliicli it ii|)])('iirs tluit lie piiid (»ri^iii!illv ti ilisiiDmcc on tlic vessel S2(!(l, receiNiii^i' si reliiitc "t (»\v when This insurance \v;i> tl >^2(). lie does not slw etl'eeted, n(»r at what time tlie |»(diey was caiicclc It is ejaime*! on the part of the rnit«'(l States tliii as tlie own(M"s had received the I>enelit ot" the ii isiir- aiK-e to the time ot" sei ihlvth iK-e TO tlie time or seizure, and presuinaniN' tik rel)ate from tiiat time to the expiration of the jxilicv, the\' sustained no (hnnafje. the cliaro-e for "Nine canoes at 82H, S2r)2," i> obtaiufid from the evidence of Sj)rin<;', in wliicli Ik R., H(5;i, line^^'iV!^ ^'''it the caiioes witli their outfit were worth, lie t.44. "would say, s25 each — >^'25 or 82S — anywhere in that uei<>lil)orhood." He also state, 367 ori<«iiijillyt,ir ^' fi rehiitcot nsiirjiiicc \v;h ^v;is ('{ilicclcil Stiltos tliat, <>t" tiic iiisiir- iijil)ly the full »t' the ])ulicv, 2S, S2;Vj;' i> , ill wliicli li( ere wortli, iic -anywlR'rt' in the canoes for i\y owned by (liaiis, however, s paid to them, canoes, so far as I you claimed to be same money se as that the [udiau hunters ;, and in other ian that owned o send out. r purchased tlie ise? X of this tes- i, this claim actually piii- fixed at the 51. U.,H77.1iiie2. liiwi r H;iiire ;>iveii hy tiie witness. The money piiid the iiidians is included in the \ahie ol" the s«';d skins. All item appears in the schedule, "'rwehc ^uns, a1 >■.',".. >>:;()<>." The testimony of Spnuj-' in relation to '^-^y'*'"''^' •*°® this ciiar;^*' shows that the\" were l)reech-loadin<4' and iiiiiz/le-loadin^- shotguns. He also says of them thatR., K7ti, line "tliex were an old, h»\v-;irade." ;^un: and that a por lidii of them were owiumI h\' the hunters, altoiit six di' xN'eii Ixdon^i'in;^' to the <»wners of the vesstd. Tlie I'nited States (daim that the j^uns whi<*h were ;i(rii:dl\- the property of the owners of the scho(»ner me the only ones which can lie coiisidei'ed. The item "Cost of defense at Sitka, 8500," is based oil the following' testimony of Si)rin}^': {). Now, were you put to any legal expense at Sitka, or |{., 870, line was ther<' a charge made against you ? .")«. A. There was a charge. Q. What was the amount of the charge ? A. fioOO. (^ Did your captain draw on you for it? A. Xo; he did not. Q. Did you actually pay it? A. It is not actually paid, but it will have to be. Q. Were you sued for it, and judgment obtained against VOU? A. Yes. Q. J)o you know how you were summoned to appear? A. I think it must have been sent down to me; I really do uot remember, now. A transcript of the judg-ment here referred to is not produced, and no judgment could have been recov- i'i\'d under the laws of the United States by any such sorxice as is suggested, and there is no evidence to Auwx that there was any eni])loyment of an attorney l)y the owners through which they became liable to pa}'^ the amount charged. The legal services A-pp.B, 68. \vhi( h appear liy the Record to have been performed nil Ijehalf of the owners at Sitka consist of the filing of a demurrer, an answer to the libel, a motion to set aside the decree, and a notice of appeal. ,% ^, ^, .^^^< IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 11.25 150 ■^~ ^m ■ 2.2 140 I 2.0 llllim U IIIIII.6 ^ -^ /: ■^ v^V ^ '/ Photographic Sciences Corporation 23 WIST MAIN STRUT WHSTIR.N.Y. 149S0 (716)872-4503 .15,"i,s f John Markt'- [ndians "some- for this money on with presen- in makin«r tlie can not })e al- )0," shculd not le dainuint, for hat there is no on the ))art of ," is 80 g-rossly ention. Tiiere left Victoria at liis ex])enses in corres])on(ling ith tlie matter, cials up there." a great deal of considered, ^'isions, amnui- articles wliicli but whidi can ased upon no snses and liard- 18 of Monroe, y discussed at the remainder 1 of estimated 'ear 1887" are dlowed in any to her owners. the favourite. Claim No, 4. 'I'lic Faroiirifc was warned to leave Herini"- Sea l)v the United States revenue cutter Richard 7iVrv/<, at^-|^^^-^» ^*°® iilxtut 2 o'clock in the nun'mnji" on the 2d day of Aiijiust, iHSn. The vessel did not obev the warning, but continued her sealinj*- vo^'age until the 19th daj' of August, when the ca})tain says he had conndete. To what ettect was the understanding? A. That he was to stay as long as possible, line ^h Von yourself had never been in Bering Sea? A. No; not at tliat time. t^. And you practically knew nothing of the close of the season in Bering Sea? A. No. (^. And Oapt. Alexander McLean had had former experi en(!e ? A. Yes. (i). And you left the matter to him entirely ? A. Yes. i'"e ('ii|)ta'in ^IcLean was called as a witness on belialt of the I'nited States, and testified that he was halt owner of the Ff the voy- line Jig«' <»f fl't' J'di'ouritc, which he produced for inspecti(»ii. Kxaniined as to the innnber of seal skins taken after the warning was given by the cutter, McLean .said: Hue i). You took about G7"» skins after you were warned? A. Yes, sir. Q. And turned them over to Mr. Spring or your partners here '. A. Yes, sir; and brought them to Vi(!tori.a and sold them. Cross-examined with reference to the voyage of t\w Faroiirifr, this witness testifie*!: line q. Why did you leave the sea on 19th August (1880)? A. The season was pretty well closed, line Q. \Vhen you left for tho liering Sea in i88«l, as master of the Fdi'oKrifc, when did you inteiul to come back? ded her ciitcli. L'.s H[)riii;i- aiul ' sailed tor He- diinitioii of the e discretion of I the vessel was ring Sea? wourifc. Know- ud an interested se bis own judg- ? e. H' Sea? ' the close of the d former experi- ness OH l)eliiilt It lie was liiilf \oria, the Faronfitr, liiid she arrived in Victoria on the 1st of September, wdidd have left liering Sea about the 16th of August. As a matter of fact, she continued her voyage until the lyth. In the Argument on behalf of Great Britain the testimony of McLean, where he says that he could liiive remained until the 1st of September "if the wciither woidd permit," is cited. His testimony as to what he could have done, as against his testimony as to w hat he did do under the actual conditions, has no weight. Captain McLean was examined regarding the timen., 402, Hue tliiit he considered the sealing season in Bering Sea ^'^• closed: (f. What time did you leave the Bering Sea in the Mary Kllni > A . I can not exactly say, but probably about the 20th or -."•til of August. I am not sure, (^ From your experience what would you call the end of tlie sealing season in Bering Sea in the years 188() and 1887 ? A. Ahout the 'K)th of Ai(rounds over whieli the Mart/ I'J Urn carried on lier scahno- operations in the year 1SS6, this testi- mony is fonnd: Q. Give it to us generally (the location). A. Between 54^ .{(>' and 65° north latitude, and 108- to 169° 30' west longitude. 1 was always under the impression that that was the latitude and longitude we were hunting in, C'aj)tain AIcLean did not testify that he clianged liis 8ealin<»' ^rounds on acconnt of the seizure, and refen-inif to the positions, as found in tlie lo«f, produced l)y that witness, it will be found that the Favourite hunted over this "best sealinj^ g^round" after the date of tlie Mf of thewarnin}*' given by the United States cutter. Her feaTisse" positions were August 2, 54° 50', 1(J8° 49'; August 3, fex.8,u.s:54° 40', 168° 50'; August 4, 54° 39', 169° 23': "^''''"^'"•*- August 5, 54° 35', 168° 40'; August 6, 54° 50',n(l= 07'; August 7, 55° 06', 170° 40'; August 8, 54° 51', 170° 49'; August 9, 54° 46', 171° 01'; August 10. 55° 03', 170° 40'; 11th and 12th, position not ffiven; August 13, 54° 45', 168° 1?'; August 14, 55" 24', 168° 35'; August 15, 55° 30', 169° 10'; August 16, 56° 15', 166° 45' 30"; August 17, 55° 40', 165° 30': August 18, 55° 12', 165° 40'. The position occupied by the ship after the 2d day of August is at no time beyond 171° west, and al- ways between 54° 35' and 56° 15', which is exactly, according to the charts cited in the Argument on be- half of Great Britain and according to the Argument itself, "the best sealing grounds" in Benng Sea. The position occupied on the 16th, 17th, and 18th of Au- gust is directly between UnimaV Pass and the Pii- bilof Islands, the waters between \. hicli are the "gi'eat highway of the seals," according to the claimants. The claim is made that the Favourite did not change her ground until the 4th of August, evidently to ex- lino r)5, wlicre miiiied relative 'Ulvn carried on H«6, this tcsti- iide, and 1(»8^ to jr the iuipreHsioii were Imntingin, lie changed liis e, and referring ixluced by that vour'ite hunted ;he date of tlie ; cutter. Her 49'; Augusts, 39', 169° 23': i, 54° 50',17(r^ rust 8, 54° 51', '; August 10, tion not e-iven; t 14, 55- 24', )'; August 16, ' 40', 165° 30': fter the 2d day ' west, and al- lich is exactly gunient on be- the Arguuienf •ing Sea. The id 18th of Aii- 8 and the Pri- i are the "great e claimants, did not change vidently to ex- THE FAVOURITE. 373 |iliiiii away the catches made on the 2(1 and 3d of Aiiuust, amounting to 260 skins. The Favomiie occupied on the 5tli of August al- ludst exactly the same })osition she occujiied on the 2(1 iiiid 3d, and occupied the same })osition again on the 13th and 14tli, and on the 16th, 17tli, and 18th wiis jumting in the most favora))le location, according to the claimants, in the entire Bering Sea. Tile (daim is also made that she only lowered her canoes on the 2d, 3d, 10th, and 19th. The basis of this statement is obtained from page 5, known as Kxhibit No. 9, United States claim No. 4, of the book kept by Oapt. Alexander McLean, in which the total number of seals taken was recorded, l^hat book (Iocs not purport to contain a statement of the lower- inii8t, seaK'd. If the inu]) nt ' Mr. '^rowiisend, based uimhi tlie log" of the Faroiiritr for this voya^i'e of IhSd, is to be used as aiitlioritv U])oii tlu* lo('ati- <»rouiuls," the chiini that the Fiironritr in tlie year 1H(S6 was not on tlie seahnji' - oTonnds." ('a})tain McLean who, it will be reinendiered, was half owner of the vessel at the time of the vovaw and possesses an equal interest in the result of this claim before this Ili<»h ('Ommission with Cliarles Sprinji', was asked on cross-examination: R., 1335, line Q- 1 >id you or did yoii not consider that you had a claim 52. against the I'nited States (Toveriiment lor havinsr been agai warncil out of Ueriuf;' Sea ? A. 1 can not sav that 1 did. 45. i}. I ask '.vhether you consider you had a claim? A. 1 considered that I had for the Onirartl. The Omcariit claim was jjood, but the Farotirite'a I was always in doubtof. (). And you attached no importance to the matter at all? A. No, sir; I never made any claim. R,, 1336, line Q. You are sure you did not furnish Mr. Spring the par- ticulars for the lU'Cscntation of the claim? A. Not to my knowledge. I never was consulted in the matter when he nuide the claim. The (lovcn'mnent i/f the Tnited States claims tliat the Faroiiriff continued her hunting* vovajjie to the time that the captain considered the termination of the sealin<>' season, yivino- no heed to the warniiw of the United States revenue cutter, and that tlic testimony of the claimants establish the fad that no damaX' to the eniiinatioii of the waniini; and that tlie e faci that no t of tlujotlicer the black diamond. Claim No. 5. This claim was not presented to the Tribunal of Arbitration at Paris, and is not included in the Con- vention of Feljruarv S, ISDO, either in the schedule Mttiiched thereto or in parao-raph 5 of the preamble as ;in additional claim. A motion was made on behalf of the United States Pleadings, that the Hijrh Commi.ssi(»ners "dismiss from con- <=i''i">No.5. si(l( ration the demand of the Govennnent of Great Britain embraced and described in claim No. 5." 'Pile gTOunds of the motion are that as t(> the said claiin, in w'hole or in jiart: 1. No (piestion of fact involved therein was sub- mitted to the Tribunal of Arbitration cimstituted under the treaty concludeton on the 2!(th (it February, 18!)2, between the United States and (jlrcat Britain, in accordance with Article YIII of the said Treaty. 2. The said claim No. 5 was not embracetl in the schcMlule of the British case, })ao-es 1 to fU), inclusive, as piesented to the said Tribunal of Arbitration, 3. It was not included or referred to in Article IX i»t' the award (►f the said Tribunal of Arbitration. 1. It was not embraced in the Ct the United States, April 23, 189(), and by Her Uiitannic Majesty, May 14, 1896, and under which the lii"ii Commissioners were named. 879 I Mil iHir i ^& I 'Ik I #7 11 376 THE BLACK DIAMOND. 5. And the said claim N<>. 5, in lu'lialt" «>f (Ireat Britain, ciaiminj^ compensation from the United States, (Ud not arise by virtue of tlie treatv aforesaid or of tlie award and Hndinj^s of the said 'rrihuuiil nt Arbitration, and it is not an additional <*laim specified in the fifth parajj^raph of the preand)le to the said Con- vention, juid is not in the list of claims intended to be referred, appended tt> said Convention, pointed out as the claims intended to be referred in Arti<*le I of said Convention. The argument and consideration of this motion wne postj)oned until the final arj»ument of all the claims. The testimony was taken (h' bene r.s.sY'. Counsel rep- resentinj>- the Government of the United States and Her Uritannic Majesty before this Hij>h Connnission connnunicated each with their own Government and received instructions resulting- in the following stipn- ation: It is stipulated and agreed by counsel for Her Britaniiio Majesty and the United States, subject to the sanction of the Commissioners, that the claim numbered 5, resting on the alleged warning of the schooner Black Diamond in 188(i and R., 1808. the personal claim of James Gaudin, included in claim No. 11, may be proceeded with by the Commissioners /or the 2)urpose of reportimj facts and conclusions to our respectire gorernmenU, for their information separately from other claims; provided, however, that the question of jurisdiction of the Commis- sioners under the convention in respect of said claims shall remain undecided; but the Commissioners, in their discre- tion, may report their opinion on that question — counsel intending to prejudice in no way whatever their respective governments in above matters. R«^1808, line The High Commissioners sanctioned the stipula- tion and ordered it filed. The Government of the United States asserts that the considerati(m of this claim is not within the juris- diction of the High Commissioners. An inspection of pages 1 to fJO, inclusive, of the British case, as pre- sented to the Tribunal of Arbitration at Paris, dis- closes that no claim for damages by reason of any 67. THE BLACK DIAMOND. 877 halt' of Choiit tlH' United t'Jitv aforesaid 1 'rril)iinjil of 'laiiii s)K'citie(l the said Coii- nti'iidod to l)f pointed out as tit'le I of said s motion were dl the daiius. C'oiinsel rej)- d States and 1 1 Coinniissioii vernineiit and llowiiifT stijm- r Her Britannic I sanction of the resting on the 911(1 in 188«» and ed in claim Xo. s for thepurpoit ire (jovernmenU^ lims; provided, jf tbe Coniinis lid claims shall in their discre- estion — counsel ;heir respective i the stipula- 's asserts that hill the jiiris- ^n inspection case, as pre- at Paris, dis- 3ason of any \v;iiiiinf;' j^iven to the M^farl: DUtinotul in 1H8(! was pre- sciifcd to that '^I'nhmial. No reference is made to any siicli chum in the appendix of chiims to the Conven- tion hy wliicli tliis IIi<»li Connnission was create'c tVoiii tlic jM»rt «»t' Sjiii Fniiicisfo, snid iiukK' no iH'trrnirc wlisilcNtT to wiini- in^i'.s Immu;^' }ri\('ii l»y the rolh'ctor iiddn'sscd in tliat t'oMiiuunirJitioii to llu* s]i'\ys of iiiiy otlicr iisitioii. Tlic /l/dr/,- hUntinuil ciitnvd licrin;^' Sea {d>oiit tlic 1st of .Iidy, l.S.SO. and |»ioc«M*dod to the port of I'n- liiu-iilaska, wlicr*' tlic i-aplain says ccrtaiii papers ' ere served upon him l»y the rolleetor of customs, and he was advised to h'ave Herinji' Sea rijiht aN'. He e confiscated." Q. Was there any verbal notice? A. Yes; I was Btroiififly «f/r/«ef/ by the collector of customs at I'nalaska to go out of Hering Sea, or J would be sure to be seized. Q. What (lid you do then f A. / ireiit out Into ^Jiv sen and hcfiau xvtilinff. * (^. How long did you remain in the sea? < A. I remained until the beginning of August. ii. What day? A. I do not remember what day. It was somewhere between the 1st and the .'M and 4th. ii"e The ca))tain then states that ujxni the 4th day of Auyust he started on his return \-o\a<«v to Victoria, ahandonin;^' the further j)rosecuti<»n of his hunting trijt. (}. Why did you start for home? A. 1 was afraid of seizure. if. Had you no other reason to leave the Bering Sea ex- cept that of being afraid of being .seized ? A. No, sir; J had no other reason. I'ue The Jihirl,- Diffiiiond h'ft the JJerinrt of I'll- |»JI|M'rs ' ('!•(. stoms, uiai he t states: "'I'lie VJIS CJIllnllt ill ' confiscated." ctor of customs mkl be sure to ist. ^as .somewliere c 4tli duv of c to \'ictoi-iji, his liiiiitiiiff tiering Sea ex- ya about tiie iitivo to the beginning of THE BLACK DIAMOND. (,>. Yon expected to leave the Bering Sea about the end of All-list! A, Ves, sir. Tlic mate, ()\v(Mi Tliomas, v s called as a witness (III Ix'lialf of the idainiants, j^ivii);; no evidence of iin- |iiirtaiic(f relating- \o thtj occiu'iences at I'nalaska, and !itiilinj»taiii would he ln'tter informed as to what oi'cuned at Tnalaska fliaii he. 'Pliis witness testiheiven the captain on the 1st day of .hdy, the Hide/,- DUthKind «'ontinueritain, conclusively proves that Alexan«U^r Frank is a half owner of this claim. The stipulation recited agrees that the facts and 379 K., Vim, line K.. 1774, line 51. K., 1774, line (50. U., 1757, line 61. Argument on liubalf of (i. I!.,l.. 17,. line 23. Exh. No. 10, U. 8., claim No.S.Exha. p. 207. 380 THE BLACK DIAMOND. conclusions of the Comraissionerfs shall be comnmni- catecl to their respective Governments. The United States contend that the testimony conclusively estal) lishes that the grounds of the motion filed before this High Commission are sufficient to exclude the claim from the consideration of the Conmaissioners, and that the facts as found from the testimony are as follows: That the Black Diamond was not "seized or warned in 1886 by a United States revenue cutter," as found with reference to the vessels named in Annex C, a])pended to the award of the Tribunal of Arbitra- tion convened at Paris; That no warning was given this vessel by any ])er- son acting with authority on behalf of the United States; That the vessel remained in Bering Sea until tlie 10th or ir)th of August, when she sailed with her cargo of seal skins for Victoria; That had the vessel not left Bering Sea she would have terminated her voyage between the 20th and 25th of August; That Alexander Frank, an American citizen resid- ing in the city of San Francisco, in the United States of America, was a lialf-owner of the venture of tlie Black Diamond in the year 1886, and is a half owner of the alleged claim; That no instruction or comnmnication was evor sent by the Government of the United States, or any person representing its authority, to the deputy co'- lector of customs at the port of Unalaska, directing him to warn or seize any vessel hunting seals in tli« waters of the Bering Sea; That the instructions issued by the Un'ted States Treasury Department to the conunanders of revenue cutters of the United States, in 1886, were never com- be comnnini- The United lusively estab- led before this ude the claim issioiiers, and ;iiiiony are as zed or warned tter," as found in Annex C, il of Arbitra- 3I by any ])er- )f the United Sea until the iled with her lea she would the 20th and citizen resid- United States enture of tlse a half owner ion was ev(U' States, or any B deputy co'- ika, directing »■ seals in tho In? fed States I's of revenue e never com- THE BLACK DIAMOND. iiiunicated to the captain or any officer of the Black Uiamond in the year 1886; That there is no testimony in the Record upon which to base the claim "Legal and other expenses, S250." That no amount should be awarded the owners of the Black Diamond for damages suffered in the year 1886. 381 the w. p. sayward. Claim No. 6. Claims iu British case, Aiu. Rep.,' vol. 4, p. 153. R., 109."), lino 17. K., 1095, Hue 58. R., 1097, lino 3. App. 1$, 121, line 10. App. B, 130. line 20. App. B, 139, line 10. R., 1147, lines .36 and Tu. Br. Arg., p. Ill, line 25. 382 l^he \V. P. Suffiviird was a scliooner of 59.79 tons register. The vessel being owned at the time of lier seizure by l^lionias H. Cooper, a civil citizen of the United States, any liability on the part of the United States to this claimant is denied. In 18H7, after sealing- along the coast, the vessel, with eight canoes, entered liering Sea about the 1st of Julv. On the 9tli, about noon, she was seized bv the United States revenue steamer Hush for violatiii;>' the municipal statute--* of the United States. Under the direction of the United States ofticer making tlio seizure, the schooiuM- was scmt to Sitka tor trial, where she arrived 21 st July. On the 13tli Se])tember, 1887, the vessel, her tackle, apparel, boats, cargo, and fur- niturt^ were libcle-o, and fur- Septenibei' ii I sale was en- schooner, her as PI. Cooper, lini to the Su- 'h a[)})eal wiis entered Aj)ril of this onk'r Perritor}', and vins seized on 1 in the Arji'U- '8 an item ''»r THE W. P. SAYWARD. 383 "4sr) skins on board at time of seiznre, at 8<>.5(>; total, >i3,ir)2.50." These skins referred to are the same as tlii»se recovered bv the owner under the bond jiiven. Ciijitain Warren, who had the manaoement of these vessels for Cooper, was asked: i). Were the seal skins included in the bond you gave for r., 1147, line [ha Sat/ ward.* 57. A. Yes. il. How many? A. About 440. (}. The bond was given for the vessel and the skins? A. Yes. On the 19th April, 1S8.S, the followino- order dis- (•har<:;in<>' the schooner, \V. I*. SaijK(trd,ihnu custody was made, directed to the marshal of the District of App. b.,146. Ahiska: Sir: The above-named vessel and all her tackle, apparel, t'luniture, arms and ammunition, and carjyo, consisting of r,'.) fnr .seal skins tliat liave been received by you in this port, having been bonded and ordered released by the judge of tlic above court, you will therefore disciiarge the vessel, her tackle, apparel, furniture, arms, ammunition, and cargo, con- sisting of 479 fur seal skins, so received by you, and deliver tiic same to .1. D. Warren. I hereby certify that the foregoing is a true and correct t'()i»y of the order of the court in the case of the United Slates r. Schooner \V. P. Sai/iraril, entered in the above entitled cause. Attest my hand and seal of said district court this 15)th (lay of April, A. D. 1888. H. E. IlAVDON, I Hsf riot of Alaska. I iiereby certify and return that tlie schooner W. /'. Say- irard was delivered to J. D. Warren in accordance with this order of the conrt. Barton Atkins, United States Marshal. In view of the fact that these skins were returned to the owner, the United States consider the claim tor tlieir value to have been erroneously included in the Arjrument on behalf of Great Jiritain, the evidence r" Si 884 THE W. P. SAYWAKD. beiiiji' coiicliisive, tor in no other li^lit are the United States \villin«>" to view the chum made. It is needlesji to add that it couhl not be allowed in any event. The item termed in the schedule, '' Insurance App. B, 119,^480.1)6," is l)}ised upon a stntement of "premiums paid })er Sai/ivard, Anna Beck, Dolphin, and Grace" appearing- as Exhibit No. <)4 (G. B.), claims No. (5, 7, J), and 10. This statement shows that in the case of the \V. P. Sai/tranI, the owner paid for insurance from about January 1, 1887, up to August If), 1887, €!IS, 16s. 7d. The vessel was seized on the 5)tli day of July, and had received the benefit of over four-fifths of the premiums paid, leavin<»- a balance of loss of insur- ance after seizure until the cancellation of the policies of !S91.50. The United States claim that he item should be reduced to this sum. An item is included in the schedule for "mate's trip to Victoria, SI 00." In the Argument on behalf of Great Britain the following statement appears in reference to this claim: Br. Arg., Ill, While waiting for trial the mate got leave from the court line 1. ^Q gQ ^Q Victoria on his parole to return for trial. This trip cost the mate $100. The marginal reference given for tliis statement discloses the following in the examination of A. D. Laing, the mate referred to: R., 1098. line Q. You say that you came away for good in October. Did • you go away before that? A. I did ; I came away in August. Q. How long did you stay away then? A. I arrived here on Saturday, and I was on my way back on Monday. Q. Why did you go back ? A. To stand trial. Q. Why did you come away? A. I went to Judge Dawson and asked him for permission to go home and see my people, but he said there was no trouble as long as I gave my word of honor to go back and stand ire the Uiiitod It is needless my event. '* Insurance )f prenuuius , snul Grace" aims No. 6, 7, in the case of nsiirance from if), 1887, €!)S, le ;)th day of r four-fifths of loss of insiir- of the policies teni should be le for "mate's Lent on behalf mt appears in I from the court trial. This trip tliis statement ition of A. D. n October. Did on my way back m for permission B was no trouble back and stand THE W. P. 8AYWARD. 385 trial, and I did, jxnd went back and stood trial when it c(»iiie on. It is a})parent from the testimony that neither this iiiiiu nor the owner could recover for the expense of a \ isit to his family at Victoria. The item iu the schedule entitled "Belyea's (■liar<>es" is unwarranted, as there is no evidence l)('tore the Conunission that such an amount has ever been })aid bj^ the owner of the vessel to IJelyea, or tliat he has become liable for such an amount, or that the services rendered were of such a nature as t(i warrant such a charge; and, furthermore, whatever services were })erformed were in connection with the jircparation of this claim for presentation to the ( Htawa Government. The item for "owner's expenses, 8200," has no R-> 1143, line t'oiindation in law or in fact upon which an award (•(•uld be made. All item a])pears in the Arj^^'umerit on behalf of Great Ibitiiin entitled, " Exj)enses incurred in bonding- »S'o7/- irtnd, etc., sai/, 81,000," and an examinatiim of the Ilccord,and especially of the pao-es cited in the British AiL'ument in connecticm with this claim, fails to dis- clnsc any evidence whatever as to the expenses which were incurred by Thomas J I. Cooper, the owner, or of his attorney or agent in ])rocuring bonds, and uiHJcr any circumstances the owner having bimded the vessel for the ))urpose of taking an appeal to the Sui)reme Court of the United States there is no rule of law or ecpiity which entitles him to recover any expense incu. led in connection with peifecthig such appeal. It is also api)arent that this ex])ense, if any, was (lei)endent chiefly upon the financial standing of the owner. The United States claim that this item col lid not be allowed in any event. The sum of '^ sai/, 82,000," is claimed hi the oppos- ing Argument for damages to the Say ward. \]\)o\\ B s 25 .'J86 THE W. P. SAY WARD. K., 1147, line 42. tliis .subject tlie exaniiuatiou of Captain Warren dis- closes : Q. What condition was slie [ IV. P. Sayivard] in ? A. Well, the vessel herself was not in bad condition; u lot of the '^env and stuff on her was missing, such as tliu kedge anchor and some small sails. 1 suppose they bad been stolen, but 1 do not know. Q. W liat was the ettect, if any, upon the vessel between the time she was seized, and the time you got her back? A. There was not more than there would naturally be for that time, lying without any care. Q. Only the effect of the lyingup of the ship and the absence of care ? A. Yes. Q. Were repairs i)ut on her after she got back? A. I do notjiist remember whether I repaired her or not. I Inoir that I boiuihi some gear and stuff for her. Ill tlie deposition of Andrew D, Lain"-, mate of tlie vessel, tlie following* testimony was given: R., 1104, line Q. When did you get the vessel back from Sitka? 63. A. She came back here, I think, in May, 1888. I was not here in 1888. I was up in Bering Sea in the schooner Favourite. Q. When did you next see her? A. In the fall of 1888, when I arrived home. Q. Had anythinff been done on the hull after she arrired heref A. Not to my knotcledye; they might have caulked her dech and given her a coat of paint. No other evidence is })roduced than the statements of these two witnesses to establish the damages which the Sai/fvard sustained through detention, nor is there evidence to show that any sum was expended U})on the vessel over and above the amount usually paid for wear and tear. The United States therefore claim that the charg^e of S2,000 is not only excessive, but that there was no unusual expenditure and no sum could be allowed under this item in anv event. As to the items entitled, respectively, **flag-, S12,'' ''bedding, $40," and "articles on board ship, items impossible to enumerate (not returned), 8200," tliere II Wanvii (lis- rd] in ? ad condition; a ing, such as tlie ppose they liad I vessel between ot her back? naturally be for le ship and the back? ed her or not. I r. ijj;-, mate of the en : n Sitka? ly, 1888. I was in the schooner Lie. ifter she arrived ^aullied her dech the statements laniages wliicli )n, nor is there xpended upon sually paid for lerefore claim excessive, but e and no suin V event. ^', "flag- m: rd ship, items ), 8200," there THE W. P. SAYVVARD. 387 is ii(» ('vi(U'nc(' of any kind Ix'lorc the ( 'oiuiiiission upon which an award conhl he nnuh'. riic claim made for !^1M)() 'Moss to owner hy reason ot' (h'tention in 1887 and ISSS, when, if in the owner's |i(i>s('ssion, she would have l>een coasting- Xovemher, jlcccmher, and .lanuary," is unwarranted. There is 11(1 evidence before the Commission that this vessel Imil ever been engaoed in the coasting- trade other thiiii was usual in connection with a sealing trip on the coast in the sj»ring months. The marginal refer- ences which a})pear in connection with this (daim do iKif bear out the statement made in the Argument on J*"". Arg., in, ht'half of Great Britain. This s(diooner was not fitted with steam, and of the so-called "Cooi)er vessels" only tliose which had steam power a[)pear by the Recia-d to have been used for coasting ])ur])oses. The claims made for " balance of cat(di for the remain- (h'V of the season" and "estimated coast catch for 1888, less exi)enses," si 8,98(5.50 and $2,413, respectively, l)eing for prospective profits, can not be allow^ed, and ha\e received a full discussion at another i)lace in this -'^'^*®' i^^- Argument. The individual claims of Captain Ferey and A. D. ^"*®' 3^^- baing are considered in this argument under the title of "l*ersonal Claims of Captains and Mates." Pile only damage, which the owner of the W. P. Sdi/irard sustained, by reason of her seizure, was throuo-h her detention from the date of such seizure to the time when she was surrendered to the agent of her owner; the measure of damages being the ihiiuurrage or charter value of the vessel at the port of Victoria for that period. i App. 13, p. 112. Claims i u B r i t i 8 li Case, Am. Rep., vol. 4, p. 163. R., 1040, line HO ;R., 1040, line (50; H., 1041, line 31 ;R., 1040, lined. R.,1041, line 44 ;R., 1041, lino () 1 ; App. U, p. 151, line 51). App. 13. p. 153, lines 12, 20. Br. Arg., p. 114, line 33. the anna beck. Claim No. 7. The Ainia lirrJ, was n scliooiier (►f 30.85 re<>'istore(l tons. The vessel beinjji' owned, at the time of lier seizure, by "^I'honias IT. (N)oj)er, a civil citizen of the United States, any liability on the part of the lliiitcil States to this claimant is denied. In 18S7, after a sealing- voya<«'e in the s])rinj)-, she transshipped her skins on the west coast of Vancou- ver Island, and sailed for lierinjj;' Sea, carryin<>' ten canoes and one hnntinf>' boat, with twenty Indians and six Avhite men. She entered the sea June "iS. and on the 3(Hli lost a canoe. On July 2 the vessel, havinji' on board 336 seal skins, was seized by the United States revenue steamer Hush, for violation of the nuinici])al statutes of the United States. She was taken to Sitka, a^id, with her outfit and caro-o, Avas libeled by the United States attorney for the Distriet of Alaska, an a]»])earance beiiifi' entered for the vessel on behalf of her master and owner. On October 11, 1887, a decree of condemnation, forfeiture, and sale was entered ag'ainst the schooner, her outfit and cargo. Subse. As to prices, have you a knowledge personally as to R., 106I, line the value of such articles at the time? ^^• A, I had of a few things, but not of the whole list. I had a knowledge of about one-third of the prices before 1 received a list to the effect that that should be the prices. (}. Name the articles that you know the prices of? A. Boat, boat compasses, tubular lanterns and lantern ylohes, fish lines, salt, pilot bread, and rice; that is all. It is claimed, therefore, in view of this statement, tliiit the valuation upon any of the articles incduded in tlie list, other than those referred to by the witness ill the statement given, are not evidence of s.ich valu- 1^-- ^I'^i? ^^^^ ation, and that in so far as James D. Warren, the aiient of the owner, disagrees with Olsen in the " • amount of stores and tlieir value, of which Olsen had licrsonal knowledge, the statement of the latter nuist be accej)ted as the better evidence. Tlie item entitled "sh>p chest, 89')," rests on the Rm.ii41, Hne statement of Captain Warren, whose examination shows that lis was ignorant of the amount of such inoperty seized. Warren sttites that there were four'^^'^g^^'^'^' ^"^® water tanks, and that "some of them were worth 82")." k.^ 1062, line < >ls(Mi gives in his list three water tanks. A claim is ^• made in the Argument for "four tanks, 8100." Claims ap})ear in the schedule for "four shotguns, ^1()0," and "two rifles, 845." Captain Olsen, in 390 THE ANNA HECK. R., 1043, 34. App. B, liue 20. App. B. line 22, App. B, lino 54 R. 1061, 47. App. B, line 23 ret'ereiice to tlu* arms on IxKinl tlu' A mm Iltrk, testified ns follows: lini! i), VVhiit was done with tlie aminntiition and arms of the Anna Heck after the seizure? A. The ammnnition was left on board in the store locker, and the guns were taken by the Indians and white hunters, When our Indians left the Anna Heck in Cnalaska they liitl the guns in their blankets in a certain way that nobody saw them. Q. These were the eleven shotguns belonging to the 8liii){ A. Yes ; the I ndians took them from the .1 nna Heck on board the (JhtUemje at the time we left llnalaska. They hid theiu. Q. Do you know what became of the guns? A. Well, they were partly lost, I think there may be three or four returned to the station of Captain Warren. They went to Victoria with the Indians, but they arrived in Sitka. Some were lost on the way down, because the In- dians went home in three canoes from Sitka. i«2, On xVpril 1!), 1888, the United States marshal sold the 33G seul skins seized, and subse(iuently, the Jixctl ammunUio}! and Jirc comjmsscs, which sales were con- firmed bv order of the United States district court. 'In the cases of the other vessels in 1887, the arms, 178, which were seized, condemned, and sohl, are men- tioned in the order confirmin<^ the sales l)y the marshal. It is therefore claimed that there is no evidence that the firearms belonfring' to the owner or hunters were ever actually seized by the United States. ^'°® The item for sealing* boat, cookin<»- ranji'e, and flag are included in the list oiveii by Captain ( )Lsen. ^^^' The item for "premium of insurance paid, 8.572.28," refers to Exhil)it No. (54 (G. H.), claims Nos. (I, 7, 9, and 10, from which it ai)])ears that the policy was canceled from Julv 21, 1887. The owner had had the benefit of his insurance up to July 2d, the date of seizure, and theref(»re this item should be reduced to the amount of premium for twenty days. For the items " beddin<»-," "estimated value of arti- cles which were doubtless on board which can not be specifically inentioned," and "expenses at Sitka, SlOO," there is no evidence to sup})ort the claim. Ah lift Ilt(l,\ nd arms of the le store locker. white hunters, ihiska they liid lat uobody saw ng to the ship! a lirrk ou board They hid theiu. f there may be ptiliu Warren. ley arrived in ecause the In- marshal sold itly, the Jixi'il les were con- listrlct court. 87, the arms, )1(1, are nieii- V the marshal. no evidence er or hunters I States, njife, and flag 1 ( )l.sen. nid, 8572.28," Nos. (;, 7, 9, e policy was 'ner had had 2d, the date d be reduced a}'s. value ofarti- 'h can not ])e Sitka, s 100," 11. THE ANNA HECK. 391 The item fen* "personal expenses in connection with such seizure and claims, S'2,'')0," is ])resumal)ly l)ased u|)itn the t'ollowin- j)roj)erty : One thousand three hundred and eighty-two seal skins, 7 double- barreled sliot- officer of the linsli to iiroceed to Sitka, and instead started for \'ict(U'ia, arrivin<>'at that ])ort on the 31st of Au<>ust. Britisii ar- Moiitz Gutiiiaii is the owner of one-half of this 47,™ine'23!cl''i^'"i> '^^^^ Alexander Frank, an American citizen, is the owner of half thereof. 392 li (Vtmmi.ssion wlio was ciip- li(^ I ■nii«»- Scii Illy 10, 1S87; t by the ('(iiu- C'litter Ukhard suiTcndercd to of th(3 United ed of captain, [Jiiited States a ken from tlie One tliousand iins, 7 d(tul)le- le.s, 2 sin^-k'- )f aninnniitioii liat tlie Alfred e after beiiiji' aflidavit, read !y the instnic- ' to proceed to rrivin<>'}it that le-half of this can citizen, is THE AI-FRED ADAMS. 393 Moiit/ (Jntnian, as the adndnistrator of the estate lit daco)) (Jntinan, deceased, ina(h^ aflidavit on the Iitli ;in^ to itho said Hrm, and that proceedings have been Kxhibits, p. (■(iiiiinenced and are now being i)roBecuted for the recovery 214, liuei9. nl'siicli damages. ill the afH(hivit of Moritz (Jntnian, of November |i, 1S8S, he asked tlie j)r«d)ate conrt for anthorit',- to sfll the assets of Jacob (Jntnian, "excejitino- thereont the said claim of twent}' thousand fonr Innidred and rliirty-three dollars ajiainst the United States anthor- itics." Alexander Frank swore in his aftidavit, execnted liueoo. ' nil the vJOtli day of April, 1«88, that the firm of (Jnt- lUMii &. Frank did at one time own the Alfred Adams. ill tills affidavit, dated April HOtli, l.SSS, he made oath tlint he was a half owner of "one other schooner, also iv^istered at the port of \ ictoria in tlu^ name of .lacob • iiitinan, and nnder the name of Lilij, but formerly .nllcd the Alfred Adams:' It is admittecl, on behalf of (Jreat Britain, that Alexander Frank was e(|ually interested in theo|)er}i- rioiis of the Alfred Adams for the year 1887. lie is, therefore, e(pially interested in the claim as fiU'd be- tere this Ilifih Commission, inasimudi as the (daini is niie entirely I'ehitini'' to the car<>'o or earninliip, and not for the value of the hull. < )j)posed to this, the Government of the United States claims that af the time of the seizure of the Alfred Adams, Alexander Frank was not only inter- t*>feil in the venture of the shin, but was an owner lit' one-half 394 THE ALFRED ADAMS. Accordinjily, the Government of tlie United Stiites denies any liability to Alexander Frank or his jtart- ner in ])usiness, lor the reason that he was an Amer- ican citizen at the time of the seizure and can iKtt receive damages for his act connnitted in violation of the nmnici[)ai laws of his own countrv. Exhibit 80, ry^^^^^ j//).^.^ A(laiii,s was constructed in 1851 and had claim No. . '' . ,. __ . , 8; Exhii)-a carrymo- capacity oi (jS.i.) registered tons. it8,i), 1J7. r|i|jg (jl.(i,,i ij^ ill the nature of a claim for partitil loss and the measure of damages is the charter value, or demurrage of the Alfred Adams from the date of the seizure, August 6, to the termination of the seal- ing season in Bering Sea in the year 1887, that is, the 20th or 25th of August, in addition to the value of the seal skins and guns seized and condemned. There is no testimony in the Record upon which to base the claim "legal expenses, $300," or the claim "personal expenses, 8200," and no testimony is cited in the Argument on behalf of Great Britain. e United Stiitos nk or his jjart- was an AintT- re and can not in violation of y. n 1851 and had d tons, aim for partial charter value, oni the date of on of the scal- es 7, that is, the he value of the nied. upon which to '," or the claim tiniony is cited Britain. THE GRACE AND THE DOLPHIN. ClATI'iS Nos. 9 AND 10. Tlie Grace and Dolphinwt^re schooners havinj^- auxili- iu y steam })o\ver and a reg-istered tonnag-e of 7(5.87 and fliUO, res})ectively. The vessels l)eino" owned at the time of their seiz- ure l>y Thomas H. Coo})er, a civil citizen of the riiited States, any liability on the part of the United Stiites to this claimant is denied. In 1887 the schooners, after sealing- on the coast, entered Bering Sea in company, Jul}' 6. On July 12 tiie Dolphin, with 018 seal skins on board, was seized by the United States revenue steamer Bear; 1111(1 (tn July 17 the Grace, with 709 seal skins on lioiird, was also seized by the same revenue cutter. The two vessels Avere towed to Unalaska and from there sent to Sitka. The Dolphin arrived on July 31 iind the Grace the day following. On Sej)teml)er 11 tile Grace, her outfit and cargo, were libeled by the i iiited States attorne}' for the District of Alaska for viohition of the statutes of the United States. On September 13 the DoJpliin, her outfit and cargo, were also libeled. Appearances were entered for each vessel on behalf 'ently liable for their })Ry- meiit. 'I'he legal expenses, which it is claimed were incurred at Sitka, are not shown to have been ])aid by tile owner, or that he contracted to pay them. The items included in the schedules for "flag," "bedding-," "estimated \alue of articles which were doubtless on board tlie v^ss('l, and wliicli can not be sj)eciHcally mentioned," "passag'e of master and crew. >*^200," ha\e no evi(h'nce to support them. "Time and jx-rsoual expenses, N'JoO," ai'e not proj)- erly included in tlie s(diedules, being- incurred, if at ail, in the ju-eparation of the claim for presentation at Ottawa, and being- covered by the item charged in the ^J'hornton claim. A claim is made in the case of the (inter for "l)ai- ance of catch for the remainder of the season" of no totally lost Ot" tllU (lillllMfi'CS liic'h api);.;,:- in iiant, tlioso tor Iships of crew," lie captain and ' considered, loners is called f the schooner 'as made in die <) liavin^^ acted 'v, and his testi- er imprisoned at ^eji'al ex})enses, ielyea and bv as the Record the claims tor o evidence tliiit ! for their pav- s claimed were !iave been paid » jiay them, les 'for "fla^i," «'s which were licli can not bo aster and crew, em. ," arc not pidp- incurred, if jit )r j)resentatioii teni THE GRACE AND THE DOLPHIN. 307 charjicd 111 ir(i(<' for " hill- he season" of 18S7, -SliJjoOO, and a similar claim is made in the case of the Ihlplt'nt anumntinfj;' to S22,l()(). These claiins are tor futnre j)rotits which can not be re- covered in any event since the vessels were totally lost to their owner. The law which ooverns in casesAnte, p. loi. (if t(»tal loss has been alrea' ao-ent <»f tiie owner i^> 1139. The testimony of this witness shows that his evidence n lutes to the cost of these articles, and not to their value at the time of seizure. In connection with the ditlcrent articles in re5848.75" is ... .... R., 1139, line 43. R , 1139, line 56. R., 1139, line G6. 31)8 THE GRACE AND THE DOLPHIN. App. H. 1(12, 1)},s(m1 ui)«>n i\ statenuMit in Exhibit No. 64 (0. H.) line Jo, ^ \ r claiins Nos. (!, 7, i), and 1(1. By tliis it ai)j)ear.s tliiit the ])oli('y was cancc'led on Anj^nst 18tli, and tlii' only (hiniajie tliat the owner could have sustained l)y reason of the seizure was the amount of ])reiiiiuiii for the thirty-one days from July 17th to Au^6.5() each, s4/j<)8" will be discussed in connect'>n with a similar item ap- ])earing- in th«? schedule of the damages claimed in the case of the Dolphin. R., 1165, line In file cross-examiiuition of Captain Warren, lie made the following statement: I chartered lier [the Grace] to the Uiiiteil States marsbal, and tlie Ignited States marshal allowed us to take all the provisions that was left on the (ivace and the Dolphin to help fit her to go to Uualaska to bring the skins. ^50-Ti7r ^'**^" ^^'^'^ charter Warren received 82,500, out of iine2x. ' whicli the Avages of the captain, mate, and crew were ])aid, leaving- a balance in the hands of Warren nf ^2,030. No reference is made in the Hritish Argu- ment to this charter, and no deduction is made for the money received therefor. It is claimed that from whatever amount of damages sustained by the owner as a I'esult of the seizure there must be deducted the sum thus received by Ca])tain Warren. In the case of the Dolphin the items for ** slop cliest," -'iron tanks,/' "casks," "2(5 g-uns_ at 840 each," "10 muzzle-loading- g^uiis at 820 each," "4 rifles at 822.r)0 each," "bomb guns," " to(da," and "cook- ing stove," are based upon the testimony of Ca])taiii Warren, and what has been said in reference to his testimony in considering- similar items in the schedule of the damages claimed for the Grace equally apply here. R., 1171, line '^pjj^^ firearms mentioned in this schedule are derived from a list contained in an account book, from which No. 64 (G. H.), it i)i)|H'ars tliiit 18tll, Mild tile lijive sustiiiiu^ii imt of piviiiiniii 7tll to iV delist liis policy tVoiii 1,^^4,998" will liiiiilar item a])- es t'laiiued in iiiu WaiTcii, lie 1 States luarslui], 18 to take all tbe le Dolphin to ]if]\) a. 82,500, out of , and crew were 8 of Warren (it B British Aryii- 1 is made for tiu' med that from d by tlie owner >e deducted the I. ems for "sloii IS at 840 each," ach," "4 riries 8," and "cook- ony of Ca])taiii reference to liis in the schedule '. equally a}»i)ly lule are derived ok, from which THK GRACE AND THE DOLPHIN. tlir witness Warren testitied. In his examination in ivt( reiice to this account hook, and ]»articularly to this list on which the item for firearms in the opposing' Aiiiument is based, Warren testified: (). And at the foot is this statement, "The guns returned." A. Ves; that is, the Indian gnns. That statement is that II were returned and that one of my own, a private fowling pifce, was returned. * * * * * Tlie Indians on the Dolphin got their guns back; I do iKit know, but 1 suppose that the Indians on the Onice got tlu'irs back also. They were thereat the time audi know tliey were given what they claimed. i}. Do you mean by " their guns" guns furnished them by Vdll .' A. No; their owmi guns. There were quite a number of them seized. (). Were there any guns on the Dolphin besides those you did not get back? A. Yes; quite a lot. ii. How many? A. There was about '21 shotguns and about 4 ritles, as near ;is 1 can remember. (^ Do you mean belonging to the Dolphint A. Ves, sir. It is apiiarent, therefore, from this evidence that the "ten muzzle-loading" guns" and five of the shot- jiiius were returned, which would corrobcu'ate the statement of the witness of the number of guns taken as " about 21 shotguns and about 4 rifles." The witness Warren states that he Ijought some of these guns at auction when they were sold by the I'liited States marshal in xVpril, 1888. The sale to wliich reference is made occurred on April 19, 1888, at Sitka, at which time the sale of seal skins also took place. The guns of the Dolph'ni were purchased by Warren for S2J)9.50, and those of the Gmcc for S9I..5O. Subsequently to this sale the marshal sold " guns, aiiiniunition," etc., from the schooner Boljjh'm, for ^62.41, and "guns, ammunition," etc., from the schooner Grace for S135.27. As these latter sales 3i)9 ]{., 1162, line 27 R., 1159, line 37. R., 1159, line 55. R., 1170, lino 45. App. B., 171, lino 16. App. B., 171, line 23. App. B., 178, line 48. App. B., 171, line 25. ill App. B., 178, hue 54. 400 THE GRACE AND THE DOLPHIN. 54. included the {uninuiiition wliich was taken from tlic vessels, it is apparent that the majority of the ••■uiis were disposed of at the sale which took })laco on April 19, at which Captain Warren was the i)urchaser in both instances. There is no evidence before tlie Commission that the guns were not in as good order at the time of sale as when they were seized, or tliat the}' had not received i)r()per care. On his redirect R.^ 1170, line examination the witness was asked whether he had an opportunity to insjjcct them, or if he know what care lad been taken of them from the time of sei/Aiie until the auction took place; lie was not asked in what condition the g'uns were, or how many he pur- chased at that time. It is therefore claimed by the United States that the only damage which the owner sustained by reason of the firearms seized was the amount which Captain Warren ])aid out at the inar- shall's sale, namely, ^299.00 and ^91.50. P- The item "insurance, !S722.71," is founded upon the statement in Exhibit No. 64 (C. H.), Claims Xos. (), 7, 9, and 10. It ap])ears tlierein that the particular, therefore, which the owner sulfcreil was the amount of premium from July 12, the day dl seizure, up to Aug-ust 2, when the p()lici(^s were can- celed, he having- had the benefit of the insuraiue from January 3, 1887, when the policies were issued, u}) to tlie time of the seizure. The item "ammunition extra" has no evidence td sustain it. In reference to the claim for "(J 18 skins, at ^G.')!! each, iS4,017," and the claim for "7G9 skins, at s(i..")0 each, >^4,998," for the Grace, the Record discloses that they were pin'(d\ased by Warren at the sales which took place (m August 19, 1888, to which ref- erence has been made. His testimony is: Rm^USI, line Q. (Jan you make a statement of the sesils you have bouglit from the various vessels; You told us that you thought you could do so. App. B, 120. 40. taken from tlif ity of the <>-uii!s took ])l{ice oil .s tlie })ur('liasei' ence before the 1 as jji'ood (trder ! seized, or that On liis redirect ether lie ha.d an he knew what time of seizure s not asked in V many lie pui- laimed bv ihe hieli the owner seized was the out at tlie luiir- 50. founded u])on i.), Claims Xos. hat the poheies le only daiiia;.i'e owner suffered r 12, the day of M('i(;s were caii- the insurance ies Avere issueil, no evidence tn skins, at i^G.ilO skins, at rSO.'iO ecord discloses sn at the sales 3, to which ret- Y is: you have bouglit you thought you THE GRACE AND THE DOLPHIN. A. Yes J it is as follows. Schooner. 401 Aliiiiii Lottio Fairfield Dolphin (iraeo Allied Adams .. Price eacli. $3.65 3.70 3.75 3.30 3.30 That is the lot that I bought, but on a division I got 127 more. The retimis of the United States marshal for these -^pPj •^^■^. sales show that he realized from the sealskins on the 178,' line 45.' Ihlplt'm 82,235 and from those owiXxaGyane 82,537.70. 'riie owner, having procured the skins for these amounts, sustained damages by reason of their seiz- ure only to the amount which was actually paid for tlicm to the United States marshal. -26 R., 1210, line 31. R., 1212, liue 48. R., 1213, liue 48. R., 788, line 28; 1214, lino 21. R., 1211, line 50. R., 1210, line 20. K., 1288, line 40. R.. 1297, line 47. R., 1298, line 42. R., 1277, lino R.. 1217, line 50. R., 1247, line 58. 402 THE ADA. Claim No. 11. The Ada was a scliooner of (>r),23 tons rejjistcr, Her owners in June, 18.S7, were J. .1. Gray aiul W. E. Pine. Slie sailed from Vietoria for leering- Sea on June 17, 1887, carrving- seven canoes, one liuntiii 1218, line show that the order was not obeyed, and that the . '. liiilians had, j)reviou8 to the departure of Gaudiii, v- ht'on in possession of their canoes, the presumption is that the canoes were retained by the hunters; and, 404 THE ADA. furtliennore, tlmt tlie canoes IxMiig- the j)r(>|)erty ot tlie Indian Inniters, Great Britain is not entitled to j)resent a claim tor tlieni in any event. R., 1213, line 'l\\(iA(hi carried one lnnitin<»- boat and a stern At O boMt. The latter belonS140.1I). As the boat seized had been used at the time of seizure for one season, it would have depreciated in value about one-third. ^42?55,5r" ^- ^^- l^"ii'H>er<.-, the mate of the Ada, stated in his examination that the shotj^un which he used wa.s retiu'iied to him, and that he saw some hunters of the A(Ja j>ettin{>' theirs also. He further stated that anyone who claimed his oun received it. It is there- fore contended on the part of the United States that the guns of the vessel were returned to the hunters, and that u})nie hunters of her stated that it. It is there- ited States that to the hunters, United States u'e. 3 mate that die pied nine da\s, ire sufficient to y ten days after provisions used the schooner's rice, and half a fore, seem that board scarcely, (cessary for her ss Louis Olseii h for an Indian r a vvliite man ven white men •ovisions would hii\e cost, for the twenty-one days from seizure to rhc time the ])rovisious failed, a))[)roximatelv >S1)((. There is no evidence in the Record as to the amount "Vii^e^ss ^^^' (if ''annnunition, ship chandlery, etc.," for which «daini is made in the liritish Aroument, other than theannnu-R., i2i5, Una iiition referred to in the lo«>- of the Ilnir, the value of "^• which is n(>t determined by the evidence. There is no evidence before the ("onnnissioners as to the "bedding"" claimed to have lieen seized on the Add, or the value of such " beddino-;" or as to the value of the "nautical instruments, etc.," seized. The item for 8f)()0 for "estimated value of other iiiiconsumable sealino- outfit and articles which were (hiihtlcss on board the vessel, but which can not be specially mentioned," is an excessive and exorbitant claim, which has no foundation in fact to support it. There is no evidence that an attt>rney was emph>yed ))y the owners of the vessel, or their agent, for the defense of the vessel at Sitka; and that whatever services were performed by Mr. Clark as the ])roctor of record, which ap])ear to have been solely the filing- of a claim of owner, were done on his own motion, and k, ^1298, line w ithout any authority whatsoever, and, further, that the owners did n(»t become liable for such services. The item entitled "Expenses and hardships of Ante, p. 319. crew 22 at, soi/, -SAOO" (which has been erroneously iiududed twice in the schedule of damages, and a])- })ears to have been included in the sum total), are IxTsimal claims, which, not having been presented to the Tribunal of Arbitration at Paris, and not having hcen included in the "additional claims" referred to in the preamble of an appendix to the Convention of February 8, lSi)6, can not be allowed by this High Connnission, and could not be in any event, even if there was sufficient evidence to establish such claims, which the United States insist there is not. (Jray, the managing t)wner of the Ada, stated in liisK.,123,5, line examination that lie was unable to tell who employed "*"■ 406 TIIK ADA. R., 1226, 24. It., 122(5, 42. K., 122(i, 45. E., 1231, 31. E.. 1234, 10. E., 1235, 15. K., 1932, 23. liclycii ill cuimcctioii with the Aila, ;niye(l hy tlie owners or their M^iciit in tlic prepiirntioii of thi.s chiiiii ;it ()tt;iw}i, or tliiit the\' Ix'- ciinie ohli^ijited t(» piiy him iiiiy sum whiitsoever. Tlic item ill the Argument oii heiiiilf of* (irent Mritnin en- titled " lielyeji's clwir'^es " is uii\vjirriiiite(l, jiiid has no evi(Uiii('e to suj»j)ort it. There appears in the s<'lie(hde referred to an item entith'd "Personal exjteiises of owiiei- from Voko- lint'liama." The evidence discloses that (»ray, the inan- ajiiiifj;- owner, arrived from Yokohama on the Aila line early in A])ril, 1H87, and that after the vessel sailed ,. for I'erinj'' Sea he returned to .lauan. In Octoher line '^ ' or Novemher, 1887, he received a cahlejiram from jMoss, his agent at A'ictoria, informing' him of the line seizure of the schooner, hut he did not return to Vic- toria for a i/i'((r from the time of its receipt. A letter was ])r<»duced which was received hv him from Moss in the latter j)art of N(>vember, l.S' of the vessel, ii}»ou the receipt of which he claimed to have returned to Victoria; hut in view of his former knowled<:e, and |»resuiiiahle correspond- ence with his aji'ent. Moss, tiie im])lication that the seizure was the immediate cause of his return to \'i<'- toria can not he admitted. As his place of residence was that city, and has been such up t(» the pi-esent time, the (daim for his exjieiises from Vokohaiua to ///.s /ioini\ which are exorbitant in amount, should imt he allowed in any event. It ap))oar8 from the testimony of Gray that Moss. ^'"^the ag'ent of the vessel and of the PcKclopc, alsd lineowmul bv (irav in 1S87, was a purchaser of seal jj^Q skins in the Victoria market. As ho o-uaranteed the payment of a part of the outfit accounts of the Ada in 1887, and as there is no evidence tliat he received any remuneration for his services, the })re- ,sunn)tioii is that he took the res})onsibility of agent THK ADA. 407 imI tlicrc is iiii Ilf the vessel and the i)ersonal vlaims of Aute, p.uis. JiiiiieH Gaudiu and C. A. Lundherj^' liavo been already Ante, p. 3i9. (•(iiisidered. The United States a(bnit that tlu^ owners suffered (iamag'e by reason of the seizure to the amount of the viilue of the Ada, in the condition which she was when sei/.ed, in the market of Victoria at that time, of the market value of the articles, not proi)erly included as ii part of the vessel itself, in the c(»ndition and at the time when they were taken from the schooner by the United States, and of 1,876 sealskins at the pnce ruling in the market at Victoria at the time when the \('ssel would, in the natural course of events, have returned to that port in 1887. the triumph. Claim No. 12. The statomont of the claiiii of t\w owners of tliis vessel, filed at Victoria, sets out tlie departure of the Tfiumph for liering- Sea, the warninji" - Sea 52 or 54 seal skins were 17. . 1 r^ n taken. ( )u the 4tli of August, while lying Itecalmed at tlie entrance to Inimak l^iss, at 8 o'clock in tlie morning, she was boarded bvanolhcer from the United States R., 1397, line ,, i>- "i i i> i i • i .i ^0. revenue cutter Birhard Bush, who examined the ves- sel, returned to tlie cutter, whereupon Captain Slu'p- 408 (nvners of tliis L']Kii-tiire of tlic >: ^iveu by tlie 'ges: "That in nircliiiio', warii- )f by the coin- >f the Triumph yiff Soar tiiesses, testify- '< was o])ened, I been sigliteil )0ii wliich she e. " tlie claimants, •earing- directly e warning-, was as mate of the lat the captain lie vovajxe. U' vo^'ag-e to )f :\[ay." She eig-lit Indians. 3ul skins were ecalnied at the n the morning, United States nil led the ves- Captuin Sliej)- THE TRIUMPH. 409 aid, commanding- the Ihtsh^ hailed the Triumph and warned her not to enter Bering- bea. The ca])tain of the Triumph, the mate, and the hulians, Smith says, talked over the matter (►f con- tiiuiing- or abandoning- the voyag-e, the resnlt being- r., 1398, uue that the captain g-ave Smith to understand "that he '*^* tliought it wonld be best to g-o on some different seal- ing yronnd." Tlie mate says "he was compelled to enter Bering Sea because of the g-ale that s))ran<^ up that nig^ht, and we were so close inshore that we either had to R-» 1398, line U(i on the rocks or run before the e-ale." Q. But, as a matter of fact, tbe vessel entered B ring Sea? A. Yes, sir. (I, And, as you understood it, she made in what direction? A. ^Ymierly. The huntinj>- boats of tlie vessel were lowered on K-. i400, line tlic 5th day of Aug-ust, the day after the warning-, when 19 seals were taken, and on the following days thereafter, with the results stated: Ang-ust Sth, 9 seals; 9th, 42; lOtli, 34; Utli, 33; l-'th, 25; 13th, 32; 14th, -24; 15th, 34; lOtli, 3; 17th, 35; 18th, 2; l!)tli, IS; 2()th, 27; 2lst, 4; 22d, 14: 23d, 33; 24^h, 15; 25th, 33. The Triumph, therefore, entered Bering Sea the iiiulit of August 4, and the next day commenced hunting, and continued without interru))tion, save by R., UOi, line the weather, until the 2()th of tliat month What claim for damages this little vess<'l of 15 tmis. whicli, according to the mate, hunted more days R., 1396, line wliiU' in the sea than any vessel a detailed accmint III whose voyage is given in the record, and which rciiiMined In tii«' sea until the 2(itli of August, can ha\e against the Ciovernment of the ("uited States, that (}overiiment can not cimceive. The mate, Sniith, uiakes some vagtie assertiSi'a. The testimony bearin;'- upon the h)cation and move- ments of tliis vessel between Auji'ust 4 and August 2G conclusively establish, s fhnt she hunted contimi- ously durin<>' that p* !■!),!,> • i'i<>- westerly between the northward of l^nimak f'.u^s ; nd Four Mountain Pass, R., I486, line takino- a course far enouu'h to the northward s > tliat 14. Boii'oslof Volcano was over 50 miles to the south. R., 1402, line Q. AYe were tfilkiiig abont this storm. When this storm 39. was blowing- you into Jiering Sea, after you got through tTniinak Pass, did you change your course to go to the westward? A. So far as I can recollect, our course iras ahrays westerhj after we went througli the IJuiuiak Pass. R., 1402, line The vessel then hunted for twenty-one days, durinf)- ^^' which time she could cover but a small distance, as a vessel is unable to sail far while her cinioes are out. E.. 1403, line Q- How many miles of ground a day \\ U' cinoes cover in 2. an ordinary sealing day while sealing A. Twelve to 15 miles. i). And every day that the canoe h. ,y, «:* off your vessel the vessel would go about 12 miles f A. Yes. ^'X'- ^'°*® Q- And you went out of Foiu- Mountain ] itss ? ^^''^''- A. Yes. (i>. And you think your course was always westward? A. Aliv<(j/s ircsterli/, wind (oul ircatlwr pcrmitthig. (}. From Tnimak Pass? A. From I'nimal; rnsn. '^rhi.-; witness was examined on behalf of the claim of the Ariel: R., I486, lino i). And you were in Bering Seu i ' :'''T, I believe? 5. A, Yes, sir. Q. You cruised southeast of the Islands in IS.SS, and you cruised in the vicinity of the P>ogoslof Volcano in 1SS7 ? A. How licav (i.) . t u call the vicinii^y ? Q. VVe'';. .I'oout ."i<> '.iles to the northward. A. Oil no: it w.,s iax'ther ofl" than that. The witness a])[)arentl3' remembered that his testi- OS tlu' infoniifi- ts was t(» estiih- iter Hei'ino' Sea. itioiiniul luovo- 4 and Aiioust luiitod foiitiiui- rly between the Mountain Pass, thward s > that o tlie soutli. When this storm you got tlirougli rse to go to the 18 alirayH westerhj ne days, durini;' II distance, as a inioes are o'oslof in 1887, l)ut to the westward. When com])ared with his statement that the boats of the TriiiDipJi \vere lowered on the next day after (Mit('rin'e would hi'e of er the so-called me 21 davs out and 16!)'^, and IV damag■e^s bv United States ntlyestabUslied. [I of ail oppor- b}' lier hunters sli the fact. t liritain states hicli should be ig tlie catch of ade an averajje 5th of August iient (p. 79, line working power } average daih- 1 canoes, 5.050, :ing lier averaj^e 2 skins, which, she hunted, her latter of fact the Kit })eriod. isis whicli is the >ly be obtained ) claim that the lity to take seals ) "best sealinji' I, bearing upon lall vessel, but leral testimony iering Sea, and ntj)Ii was coni- viiiii" continued THE TRIUMPH. 413 without inteiTuj)tion and without reference to the waniing given by the cutter Richard Hush. T'- to the loth dav of September removes all doubt, if any exists, MS to the duration of the voyage. (). When you left for the voyage had you any conversation R., 1400, line witli the owner of the vessel as to tlie time that you were to ^^^ remain in Bering Sea in 1887 f A. Well, yes; several conversations on that subject. Q. To what effect? A. That from hearsay, from those who had been to Bering Sea before, that we could make a good catch the latter part (it August and the beginning of September. At that time a tine spell of weather is expected, and 1 had a tlntrough under- standing with Mr. Byrns, myself being on a lay, that the vessel would be provisioned to such an extent of time that it would enable us to stay until we were driven out by the weather or could not find any more seals. Q. Had you been in Bering Sea before that time? R., 1403, line A. No, sir. i). Had the captain ? A. No, sir. I'here is no testimony in the record upon which to base the claims for "pro})ortioii of Warren's expenses t(» Ottawa, 8152," and "expense of owner, >i200," and "Ik'lyea's charges, 8250," and no testimony is cited on behalf of Great Britain. The Government of the United States contends that the Triumph continued her voyage after the warning without interruption, secured an unusually large catch, and having hunted the full season, sailed for Victoria, wiiere her catch was sold, and that no damage resulted to the owners from the warning ^i\en by the cutter. 54. THE JU ANITA. Claim No. 13. E., 1339, 41. R., 1340, 34. K., 1339, 20. R., 1343, 52. R., 1338, 40. R., 1340, 61. R., 1340, 68. liue Tlie Juanita entered Bering- Sea on the 2(1 day of July, 1889, and connnenced lier sealing oijerations on the 10th of July. She was seized on the 31st of tlie li^es-ime iiioiith by ('aptain Shepard, of the United States revenue-cutter Ilichard Ititsli. line '■rii(;, crew consisted of 14 Indians, the captain, and 3 sailors. There is no evidence bearing upon the number of canoes carried by the Jiiai/ifa, ])ut the fair ])resuniption is that she had 7, inasmuch as she car- ^'"*'ried 14 Indians. The stern boat was not used for hunting to any extent. hue '^[^\^^^ cutter seized (519 seal skins and the spears of the Indians. line There is no evidence that any seals were taken after the 31st da}' of Juh' or that the boats wcri' lowered. Captain Clarke, also one of the owners, testified: line Q. Up to what time did you intend to stay in tl»e sea? A. We intended to stay in the sea up to the beginning of Sejjtember. Q. Had you arranged that before you left Victoria? A. To the best of my belief at tlM? present time, and what transpired afterwards, I bc^lieve the 10th September was tlic day mentioned by Mr. Hall. He said that we could stay longer. I think that he had had information from someone who had been there that seals had been caught in September, and that the season was not actually closed. The answer of the witness not being satisfactory, he was pressed, on direct examination, for the purpose 414 11 tlie 2(1 (lay of ig operations (111 itlieSlst of till- le United States lie captain, and ariiij^' upon the /}f- satisfactory, , for tlie purpose THE JUANITA. 415 of ohtaiuino- an answer "iiving a later date for the closino' of the sealiiig- season: i). And it was your intention to stay until the beginning K-, i:-*i, line (if Sei)teinber that year — up to about the 14th ? ^^• A. 1 think that the 10th was the day mentioned. The only other testimony in the Record bearing upon the pro})osed duration of the voyage of the .huni'ia was given by Richard Hall, one of the owners: (^ What length of voyage was your vessel fitted out for R., 1349, line wlicii she went to JJering Sea? 2''* A. When the captain left 1 told him to stay on until some tiiiK' ill September. I do not remember exactly what date. (). Had you information that there was any use staying until September? A. Yes; 1 was told by some one in the sealing business tliai there was sealing to be done in September. (^ x\.nd you made up your mind to try that? A.' l>.v; I tohl the captain to stay in till iSei>t('mbi'r, if pos- sible. On cross-examination this witness testified: (). Who told you that they got seals in September in Her- k.^ 1350 Une ing- Soa? ■ "(5. A. 1 am not certain, but I think that it was Victor Jacob- sen, the captain of the Minnie. (). Were you told that they caught seals in September the year before — 18SS? A. It was in the fall of 1S88 that he told me. He told me to liiivc the schooner stay in September, as there had been scaling in September. (}. Did he say that they had been sealing in September in 18S,Sf A. I will not say that, but he advised me to have the scliooiier stay in in September. And again: ue testimony 111* of these two owners given in their own behalf. 'Vhc JunnifdWdH built in 187'). Her gross tonnage 6« "^ ' '"^ was 40.21. The fact tlujt the Juunita entered Bering' Sea on rlic 2d day of July and carried on, without interrup- tion, her hunting' operations until the 31st of July, taking in the meantime 619 seal skins for which, even ;it the extortionate value of Sll ])er skin, S6,842 is I'lainied, when comjjared with the claim made for 2,102 skins, which would have been taken during- the balance of the season, and for which 823,122 is claimed, is convincing' evidence of the injustice of making' use of a calculation of the jm>spective catch of seals as a basis for estimating' the damages sutiered lt\ these vessels whose voyag'c-s were interrujited. I'he demand for 823,122 for the use of a vessel of 40 tons for a period of from twentv to twentv-five (lays is too gTOssly extortionate t<» be ccnisidered by ii tribunal of justice. The vessel was worth about 82,000, and that she could earn over five and one-half times her value within twenty or twenty-five days, and at the rate of oNiT 8250,000 a year, is so imjiossible that justice will not permit of the use of any such basis for estimat- iiiu' the future earnings of this vessel. This vessel is entitled to recover from the Goverii- incnt of the United States her charter value from the aist day of July to the 20th or 25th of August, measured by the rule of law stated in the Argument relative to the measure of damages in cases of partial loss, in addition to the value of 619 seal skins at the market price obtaining at Victoria at the time the skins would have been offered for sale. B s 27 .■ .^■: ■ 'r: ■ .. the fathfindbr. Claim No. 14. ^i2^iV-''iT ^^''^ l*(dhfimler entered Bering Sea for a sealing i5()3,'i'iii'ovoya«i:e on five 1st day of July, 1881). She carried ^*^- five hunting boats, and a crew of nineteen or twenty white men. The United States reveinie cutter R'tch- 'R.,m\,Yu\e>ard Rash seized the Pathjimler on the 29th day of July, at 11 o'clock in the morning. The seizing offi- cer directed the removal to the cutter of 8;");") seal skins, 7 shotguns, 4 Winchester riHes, and some am- munition of j)racticall\' no value. R., 1505, linos y^\\\vA\u Muusio testified that the guns orginally cost Sof) each, and the rifles s-Ji! each. ^'^hai'i' I'.f 111 fli« argument on behalf of (Ireat Britain this Great lu it- statement is made: aiii. ]i. 47; H.. 1571, 111 the case of the Pathfiiuler, the schooner was owned by hue 41. jjn(| registered in the name of a British subject, but one Be{!htel, who was a iiative-boru citizen of the United States, had purchased a half interest in the profits of the sealing voyages of the vessel. The United States accejits the admission, made on behalf of Great Ihitain, that Andrew J. liechtel was ec^ually interested with William Munsie in the venture of the Patlijii/ifcr m the year 188!), l)ut assert that K.^^1556. line Andrew J. Bechtel was also an owner of one-half of the vessel, resting this claim -n})oii the testimony of William Munsie. The transaction pertaining to the Pathfinder was in all its detail exactly the counter[)art of the transac- tion between Munsie and Bechtel with reference to \nte,337. f\^Q Carolcna, and at another place in this argument 418 a for a sealing ). Slie carried eteoii or twenty lie cutter Bicli- e 2 9 til (lay of riie seizing- otH- er <>t" Sf);") seal , and some ain- i>'uns oro'inallv I. eat Britain this er was owned by subject, but one lie IJuited States. ts of the sealiug issioii, made on J. lieditel was 3 in the ventiiro but assert that • of one-half of le testimony of itltfinder was in of the transac- th reference to L this arjrument THE I'ATHFINDER. 419 the business relations existing- between these two men has been discussed at length, and a rcjietition for the jiiii-pose of the claim of the I'atJiJindcr is deemed uiiiit'cessary. Tlie claim of the /'(iflijiiider being entirely for the value of seal skins actually taken, and for the use of tlie vessel between the time that she was seized in IV'iing- Sea and the close of the sealing- season, no claim being made for the vessel itself, even if Bech- . tel waii not a half owner of the bottom of the ship, ills interest is an equal one with William ^lunsie, and lie is a half owner of the claim against the Goverii- iiicnt of the United States. lu this case, as in all other cases wherein an Ameri- caii citizen is interested as a claimant, the position of the (lovernment of the United States is that no citi- zen owiii"- allegiance to it can recover damages before rliis High Commission for any injury sustained by that citizen while violating the sovereign rights and the imiiiicipal laws of his own country. AVilliam Mimsie, testifying- in his (uvn behalf, stated: (^ But you did not give anj"^ instructions to your captain r., 1505, lino as to liow long she would stay there ! 16. A. I did not; I left it to his own discv ''^n to stay as long- as he could while the weather permittr ', And on cross-examination this witness said: ^). Did the i'rt//j^«'th of the 8calinj>' season in Herinj"- Sea as an answer <;'iven to a question relative to the number of seals that a captain believed he was <»oinj)^ to take in the liermjr Sea bears to the actual catch that would have been made. The testimony of this witness established the fact that to ('siptain OT^eary was intrusted the decision as to when the Pathjixdcr shoidd discontinue her hunting vovaue in the 'Merino- Sea. C/aj)tain O'Leary was examined on behalf of the claimant: Q. In lS8f) for what time did you outfit? A, ITiitil abov.t the 1st of Sei)tember. I generally allowed to leave Bering Sea about the 1st of September or the last of August. Q. Did you evir fit out for a later season in Bering Sea! A. Not at that time. Cross-examined relative to a voyage in the year 1890, he said: Q. What time did you leave that year? A. I left there some time toward the end of August. Q. The fact is that that season you hunted in the sea about the usual time? A. Yes. Q. How late in August did you leave ? A. About the 25th of August, as far as I can remember, Q. You 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. R., 773, liue 44. R., 770, line 35. - on sealing beyond teniplated sealing ng as long as he provisions. Vou isions on board in uw. They are not tlie testiinonv I siinilur nature. \]ie time that lie ■^ea, the {in.swer w hMi<^-th of the iswer <>-iven ton Is that a captain ioniijrSea hears eoii made. l)h'slie(l the fact I tlie decision as nue lier luuitins' n behalf of tlie generally allowed tember or the hist ou in Bering Sea! ig'e in the year I of August, unted in the sea I can remember, e 25th of August* ; year I was in the THE PATHFINDER. 421 (). That was tl»e latest time you were ever in lieringSea — tlie J'ltli of A iij/ust.' \. Yes; toward the last days of August somewhere. This witness testified that it took fivi^ or six days 7.^ , tor the I'afhjii/dcr to reach Uniniak l*ass after slio '^>2.' ' hci^iin her lionu'warfl vo3'ag'e on the 20th (hiy of July. Takinji' tiiese five or six days from the 1st day of Se|it( inl)er, wlien tiie witness testified that \io liad (iih-ulated to leave the sea in 1889, and the date of the terminatif>n of ihe huntino- operations of the Vdthjiniirr is fixed at Aujiiist 2h. 'I'lie Pathfinder was constructed in 1879, and the k^. gjt, g. b. re<;istered tonna<>"e is 6(5.02. 'ifim No, The damage claimed is for the value of 854 seal its! p. 274. skins, the guns seized, and the charter value of the Pdfli/imkr from the 28th dav of July until the close „ _„„ ,. . ot tile sealnig season m nering oea. Ihe value of .")() seal skins, taken after the seizure, should be ({('(hicted. There is no evidence in the record to justify the elaim for "time and expense of owner, 82()(>," and no testimonv is cited from the record in the Argu- mcnt on behalf of Great Britain. The claim for "legal expenses, S2r)0," rests upon the same basis as the claim for Belyec's fees in all the cases. William Munsie testified regarding the nature of k., 139, une liis ag-reement with Belvea. ^^- This vessel commenced hunting in the sea the 1st day of July, and continued without interruption until the morning of the 29th of July, when she had taken So") seal skins, making her averag-e catch during that time 30^ skins per day. In the Argument filed on behalf of Great Britain, a claim is made for 2,024 skins which would have Ixen taken during the balance of the sealing season, which would make, extending the season even to the 2r)th of August, an average catch of over 67 skins liei- day. 422 THE PATHFINDER. Witliout relying" upon tlie fact that tlie law of both groat nations, and the decisions of international tri- bunals, clearly establish that no damages can be awarded for })rospective catch or profits, and without reference to the contingencies which exist to modify the catch of seals, this calculation clearly reveals the extortionate nature of the demands of these claimants. tlie lawof lioth itenuitioiuil tri- iimages can Ijc its, and witlioiu exist to luoditV arly reveals the these claimants. THE BLACK DIAMOND AND THE LILV. Claims Nos. lo and Ki. The Blach Diamond entered Beriny Sea Jnlv >'). There v, ere 20 Indians aboard niVe'li' ^^' and the captain and mate. Provisions were landed R-. i"8<), line iit Clayo(iuot, where Alexander Frank conducted a trading station. The vnlue of the provisions removed is not stated, but what remained were utilized forR. i7si,iino ;iii< >ther trij). 423 424 THE BLACK DIAMOND AND THE LH.Y. 15. K.^^1828, Hue ^lio /.//// entered lierino- Sea, July 25, 1881). She was seized by tlie United States revenue cutter Yt., 1810, Vine It i chant JIksIi on the (Itli day of Auj^'ust. IMiree linn- «9. dred and tliirty-three skins and the liunting- sjx'ars R., 1817, line were taken bv the cutter. The crew consisted of the captain, mate, 3 wliite men, and 25 IntHans. The case of the chiimant was submitted on the nttidavit of ^lorris Moss, "/Ar didi/ rcf/isfrtrd owticr,^' and John Keilly, her captain. The Lihj was ordered to proceed to Sitka. Her captain instead sailed for \'ictoria, arrivin<>- at that l)ort on the 1st day of September, 188!). There is no evidence of any catch of seals made by the LUij aitei her seizure. This claim is also one of })artial loss, and the claim is for charter value of the vessel from the <)th day of Aug'ust, 1889, to the close of the sealing season, Aii- fi-ust 20 to August 25, beside the value of 333 seal skins and the spears of the Indians. The claim made "for illegal V)oarding, search, and arrest (»f vessel, 82, ()<)()," and the similar claim made in the case of the Black Diamond, can not be allowed. The allowance of any damages in the nature of puni- tive damages agai.ist a (lovernrnent acting in entire good faith has been discussed at length in another j)art of the Argument. The items, "Belyea's bill, !ir*250," "personal expenses and troulde »)f owner, S2()0," in these cases, are abs- at that "^riiere is no : the Lily after and tlie claim lie ()tli diiy of ijj season, Aii- e of 333 seal ig, search, and ar claim made lot be allowed, lature of jjuni- ;!ting in entire til in another 'Belyea's bill, )le of owner, ' unsupported iiy oi' a coii- 'ea re\ Kdegram u.^ 191)3. from San Francisco, where he resides, and examined on the last day of the session at Victoria. The testimony of this witness is brief, and a careful rejidiu"' thereof in connection with the exhibits relat- iiig to these claims will satisfy the High (commission- ers that he was the owner of these vessels at the time of the seizure, and the person the (X)unsel for (Ireat Britain had in mind when stating "we nly ])riina fnoie tlie Black Dm- jit the same time, rank's (jwuersliip ^liip of theotlier. c and one Jacob the city of Vic- )n tlie west coast three scliooners 'fred Adams^ and of April, 1887, rs of adniinistra- lexander Frank, \ affidavits relat- ite, all of which ted States claim I cross-examina- ly unworthy ui lixaniination can [iniission. !st in the TAly, and in tlie Black Die own an interest in lot the registered em to prote".t my insolvent. There ip property when an? y owned the Lilji THE BLACK DIAMOND AND THE LILY. 427 A. He bought them. (}. Now, answer the question, did you or did you not? A, J tell you we never owned them jointly. It was after liis death when I claimed them, having found out that he WHS lost, to protect my interest. The name of the Alfred Adams was not chano^ed^'-;^^!'^!*^, t(. Ldij nntd the 'ioth dav ot March, ISSS. lit?. Phe Argument in behalf of Great Ikitain admits rliat Alexander Frank was equally interested in the venture of the Alfred Adams at the time of her seiz- ure in 1887, and the evidence upon which that admis- sion is made is the affidavit of Moritz (lutman, the^''|'''''>i*.«> sole heir of Jac^ob (hitman, that the Alfred Adams ai." irns owned hij the .said Jirm of Gutman d'- Frank. On the 1st dav of November, 1887, Frank madei-^ii'.V.*.^' • 1> ''1'' llTlD .in atlidavit (found at ])age 210 of exhibits, line 50), 46.' "' stating-: 1. That for two years and upward one Jacob Gutman had, until the date of his supposed death, hereinafter men- tioned, been in partnership with me in a trade or business (sarried on by us at Johnson street, in the said city of Vic- toria, trading in the name or style of Gutman & Frank, as merchants and Indian traders. 1'. That in the course of our said business our said Jirm juissesscd three schooners, i. That in the month of February in the present year the said .Jacob Gutman sailed from the port of Victoria, British Columbia, aforesaid, in one of our said schooners, known by the name of the Black Diamond. He also made an affidavit on the 2l8t of Octo])er, ExbibjK ^p. 1.S88, in which this statement was miule: That the said Jacob Gutman was, at the time of liis de- cease, a partner with me in a business carried on by us in the ;'ity of Victoria, as merchants and Indian traders, .and that tie estate of the said .Jacob (iutnum consists of one half 'Hterest in the property of such partnership. That the account hereunto annexed, marked A, is a true account of the assets and liabilities of the estate of said Jacob Gutman, deceased. The first two items in the schedule marked A are^^Jj,''jf^'^3^; as follows: The deceased is entitled to one-half interest in the follow^ 428 THE BLACK DIAMOND AND THE LILY. iug properties: British schooner JUach Diamond, British schooner Lily. The tostiinony of Frank, vvliere he stated, "I told you we never owned tlieni jointly; it was after his death when I claimed them," has been eited, but these aliidaA'its, made to be filed in the records t)f the })ro- bate proceed in<:;s of the estate of -Tacob Gutman, and not made for the ])urj)ose of saving- to himself claims aggi-egating over i^70,000, clearly establish the fact that at that time, uninfluenced by the temptation of jj^ain, this witness swore that he «)wned one-half of the Black Diamond .and one-half of the LUif ; for he says that Jacob Outman was in ])artnership with him, and that the estate of Jacob Gutman consisted in a one-half interest in the property of such partnership. He, being the only other ))artner, consecjuently <>wned the other half of these schooners; and he distinctly says in the affidavit, quoted from exhibits, ])a<»e 210, "That in the course of our said business oar, said firm possessed three schooners." Compare these affidavits with the statement cited from the Record: "1 did not own them; 1 claimed to own an interest in them," and the fact will stand out })rominently that this witness is not worthy of cre- dence, and that his testimony is to be given ?^o weight. An oj)portunity was afi'orded the witness o.\ cross- examination to exyjlain these affidavits. R., 1998, line Q. At the time, you swore you owned one-half of these 61. vessels? A. I did not swear I owned one-half of them ; I swore tliat he owned a lialf. I claimed the other half. Q. And at the same time you were making that affidavit you knew that Jacob (rutman owned all of them? A. I claimed the other half to protect my interest; to get some of the money I had to pay out. Referring to the affidavit which he did make, and which has been (juoted, this witness is shown to have ])ositively sworn that Jacob Gutman owned one-half of the schooners Black Diamond and Lily, and that Diamond, British i stuted, "1 told it WHS after his cited, but tliese u'ds of the 1)10- )b Giitnuiii, and ) himself claims •^tablisli the fact e temptation ol 1 one-half of the Ui/; for he says ) with him, and ted in a one-half ihip. He, being )wned the other ctlv savs in the 210, '"That in (firm possessed statement cited m; I claimed to it will stand out worthy of cre- >iven 71 o weight, itness o.\ cross- one-hah" of these leni ; I swore tliat ing tliat affidavit them? y iuterest; to get did make, and 1 shown to have owned one-half Lily, and that THE BLACK DIAMOND AND THE LILY. 429 lie, the other ])artner in the firm of Gutman & Fiiuik, owned the other half. He set up no claim in the affidavits that he was entitled to one-half the ves- sels as a creditor, and in fact the statement of liabilities shows that he was not a creditor. The witness was further cross-examined: Q, Did you swear to the court that Jacob Gutman owned R.. H)9t), line half of the ship when you knew that he owned it all? ^• A. That is what I did. Q. Did you do that to deceive the court? A. I did not. Q. Did you tell the court that you claimed half of these sliips as a creditor or as an owner? A. I did not. Here the witness himself admits makino- a false jitlidavit, but in order to protect his interests at the present time. One Moritz Gutman, the onl^- heir of Jacol) Gut- man, swore that Gutman & Frank owned the Alfred Adams. He either sw«n'e to the truth, or he swiU'eto what Alexander Frank had told him, and if Frank (lid not own the half interest in the Alfred Adams he dct'rauded this heir, and is defraudin<>- him to-day, because the claim of the Alfred Adams, No. 8, is ])re- scuted to this High C'ommission in the name of (iut- iiian &. Frank. When asked as to whether the statements in the alUdavits were true or not, the witness replied that lie'^*- *^*'"' ^'"« supposed his lawyer would look out to see that he swore to the truth. He was asked if he would testify that Morris Moss owned the claim of the Black Diamond ag-ainst the Government of the United States, and rej)lied, '*Well, no; I will not swear that," and then stated, "Mv>rri8 Moss is dead, you will recollect." He was asked if R .litiJsMiiius the estate of Morris Moss owned the claim of the ' ' '" I Hack Diamond against the United States, and answ ered, " I will not swear to it." 430 THE BLACK DIAMOND AND THE LILY. Exhibits. 21H, lint! Exhibits, 213. Kxliibit.s, 211, line Exhibits, 213, line MoritzCTUtnuiii,}i brother of said deceasedJacol) Gut- man, was, upon liis attaining' his majority, appointed administrator in tlie ])lace of AI('xanroperty, schooner lilacic Diamond, $1,500; schooner Lily,$l,rm, etc; And in tlie same affichivit lie swore: That the said firm of (iutmau cV: Frank liave a claim ajjainst tlie Government of the (hiited States of America for the ainoiint of $20,43;}, such ciafm being for the seiziue of « certain xchoonei- laiown Inj the name of the Al/rc^f Adams, and oH-nvd In/ the sidd Jinn of Gutman d' Franii, and of cer- tain seal skins belonging to said firm, and that proceediiius have been commenced and are now being prosecuted for tlie recovery of said tA{l(i)iis, 'rail I,; and of cei- tliat proceedings rosecuted for tiie in tlie aflidavit vin;^- is a list of Frank, and in ^vned one-lialf 500 ; scliooncr jrty. lat (jrutnian & le, or the testi- /er owned the , from the liabilities, 818,222.86, the l.iilance is J^SOD.oT. 'I'his affidavit is in efiect a ])etition to the Supreme Cdurt of iiritish Cohimliia in jirobatc, prayinii" for leave to transfer all the assets of the estate of dacol) (iiitman, including' tln^ Itlacli Diaiiioi/d and Lih/, and wliicli are set out in said ]»etition by name, to Alex- ander Frank in consideration of his assuming' all the lial)ilities of the deceased, the liabilities exceedino" the assets by the sum of %^89!l. 57. The only asset to _ Itc excluded from the transfer was the claim of the Vi.'' ' '"^ Mi'ri'd AilduiH ao-ainst the Government of the United States. A bill of sale of all the assets of Ja<'ob (lutman, ilcceased (exceptin**' always the claim of the Alfred Ailiinis ajiainst tlie United States), conveyinrant, :is,si()-n, and convey mito and for the use of said Alex- :iiider Frank, his heirs, executors, administrators, and iissi<>ns, all the estate, rif»ht, title, and interest of him, ttie said Moritz Gutman, as the administrator of the estate find ett'ects of the said Jacob Gutman in and to all and siufj^ular the pro})erty in the first schedule hereto contained of what nature soever," was exe- 432 THE HLACK DIAMOND AND THE LILY. Ex., p. 399, exited cm the 8tli of November, 1888, and filed with line » J there<'ister-<>eiieral fit Victoria on tlie 9tliof November, Exhii.its, 1). (^nitained in that bill of sale .....^ :!!»!», Hue - - '^ 2!t. E X hi bits, l.l».L'lL',2i:i is the follovvinji' state- ment: ''And whereas it is estimated that the liabili- ties of the said partnershi]) exceed the assets thereof by the snm of SHJI!).")?." In the orij^inal schedule from which this balance (if >S890.r)7 was obtained, viz, the schedule filed in tiie j)rol)ate court, the lilack Diattiond and the IjHi/ are by name set out and inventoried at the sum of s 1,000 eacii, and the total sum of 88,000 is recjuired to make the assets of the partnershi]) inventorv at the sum of si 7,323.29. It will l)e further observed that the liabil- ities, as stated in that schedule, are >^ 1 8,222.86, and that the balance is 8899.57, the same amounts stated as the balance and the total liabilities in the bill of sale from Moritz (iutman to Alexander Frank, dated November 8, and filed the !>th day of November. A«'cordin<>ly, when the ti'ansfer was made from ]\rontz (iutman to Alexander Frank, the schooner LVorA' J)iit- iiiorxl and the schooner L'llji were necessarily included, a.nd Alexander Frank tlierefore became, on the 8th of November, the owner of the schooner Jl/ac/,- D'uwioml and the owner of the schooner Lilij. This is the only bill of sale in evidence of a trans- fer of the Lili/ and lUac/,- Diamond. It is a bill of sale to be recorded with the register-<>-eneral, and therefore does not by name set out the LUji an-J.86, and that Kmnts stated as < in tbe bill of Br Frank, dated ' of" November, ladef'rom Moritz )( tner Black Dni- ssarily included, le, on tbe 8tli of ■ JUac/i Dianioiid ence of" a trans- It is a })ill of ter-o-eneral, and e Lil// and Jilack mclusively that iinsfer. be registered in ry g-ives c ?rtain ;lii}) as disclosed lie ])erson may ill the name of ilexander Frank not obtain the le. .Morit/. (lUtinan testified : " 1 left Victoria s()nie time "•- '■^'^"' ''"<* ill 1S8S, and Alexander Frank continued tbe business, ;iiiil of course k('|)t the books;" and tbat lie was absent four years from X'ictoria. Frank did n(»t desire, tbere- tiiic, to leave tbe sbi[>s ref;istered in tbe name of tbe fstiite of Jacob (Jutmaii, because Moritz (lutman, tbe mliiiinistrator, was leaving- tbe city for a period of four years. Frank accordinoK- made use (»f tbe name lit .Morris ^loss for tbe jmrpose of baviiig tbe sbip rctiistered. Tbe sbi])s were registered in tbe name of M(»rris Muss on tbe lOtb day of November, is,s8. Tliat .Miiritz (hitman bad no title to tbe A/7// and /Ihn/: IliiiiiKn/d at tbat rime is sbown by tbe bill of sale il;it('(l November 8, 18S,s, wbicb transferred tliese visscds to Alexander Frank. Tbe onl\' evidence of the ownersbi]) of M(»rris Moss is tbe eutl•^• (»n tbe register. Tliis entry is not sufiicieiit to outweigh tbe 1)111 of sale, introduced in e\ idence, from .Moritz filiit- iiiiiii to Alexander Frank; and at the time of its c(»ii- vtyance tbe })robate court had ne\-ei'autborzed ^loritz (iiitman to make su(di conveyance. On tbe 14tb day of November, 1888, tbe transfer li;i\ ing l)een made on the 8th day of November, and the bill of sale recorded on tbe Htb day of November, Moritz (lUtman filed in the Suijreme Court of Ib'itisliK., 1859, line • idumbia, in ])robate, his affidavit, dated No\eniber ;'. 1S88: a bearing" was had aiul tbe fi)llowing (»rder entered: Upon hearing an application on belialt' of Moritz Gntnian, Uv 1839, line till' lubninistrator of tlie estate of Jacob (iutiiian, dec used, "*^- 1111(1 upon reading the anidavit of the said JNIoritz (rutnian, tiled herein on the 14tli day of November, 1 888, 1 do order that tlic said Moritz Gntiuan, the said administrator, be at lib- t'lty to sell, convey, assign, and otherwise assure to Alex- ander Frank, of the city of Victoria, in the Province of British Columbia, all the real and personal estate and effects lit' tlie above-named .labob Gutman, deceased, of the Trovince of liritish Columbia (excepting thereout the claim of the J. ^/mi Admns against the Government of the United States). B S 28 M.rtf,,.t\_' I . 434 THE HLACK DIAMOND AND THE LILY. That ill consideration of the couveyaiice, assijjiiineiit, or other assuraiH^e to be iiia' the titli' to Alexander Frank on the Stii day of Xoveiiiber, j\Ior('ovi'r, it would luive been it siinplc ]n'oeediirL' to jiave filed willi the jirobateeoiirt a [letition jiray inss; but no such petition ever was filed, and no such sale ever authorized. The only conclusion is that ^Nforris ^[oss's name was used simiily for the jiiu'poseof effecting- a transfer on ■^•^g^^"*^' ^'"''tlie reed in the l)usi- K., 1229, line ness of represeiitiuo- purchasers of seal skins at tlie K.'^i23i liuel"*^'* '*^ Victoria, and was also eng-aji-ed in the business 26. of outfittiiij>' vessels as aj^-ent for other jiarties. K., I5i34, line The Ilio'li (Jomiiiissioners are advised that it is not an uncommon practice at ^ ictoria for ships, entirely or })artly owned by American citizens, to be registered in the name of subjects of Great liritain. Charles Spring swi;re in the affichivits filed at Paris that he was the sole owner of the Oinrard and the Farouritc, and the testi- mony in this Record discloses that Alexander McLean, an American citizen, owned one-half of each of tho"e vessels. William Munsie made no reference in the affidavit filed at Paris to the interest of Bechtel in his shi}), althoug-h it is now admitted that Bechtel was equally interested in the venture of the Pathfinder in the years 1881) and 1890. Theodore Lubbe testified LY. THE BLACK DIAMOND AND THE LILY. 435 ce, assiifiimeiit, or ler, the said Alex- L^bts aiKl liabilities licli debts and iiii- bit marked A, an- oritz Gntman, and 18,'J2L'.8(;, and that iirity to the amount ett'ecta of the said lent of any of the !h security to be to 5 registrar of this a(]> ])l(n)io)Hl and I .Morilz (liitinau 'nink on tlu' Stli itild liuve been a :lie j)r(>l)ate court vessels to ^lorris ileil, and no such ^[oss's name was iny a transfer on |>-e(l in the husi- seal skins at tlie il in the business sr parties, led that it is not ips, entirely or ) be registered in Charles Spring it he was the sole '7f', and the testi- xander McLean, ot'each of tho'^e reference in the i»f liechtel in his lat Bechtel was the Pathfinder in Lubbe testified si that althou<;h he was an American citizen, he was at (iiic time a part owner of the Farouritc and the ()n- iranl; ane to lierinti' S(ii in the year 1885), and mad(? the trip to the west (i)ast of Vancouver Island. The lilack D'koiioik/ made a trip to P'rank's fishiuff-R., i7Si, liue >tation on Queen Charlottes Islands after leavinj^- ^^• IVring- Sea in the year ISSD, and was there loaded with a car<4'0 belonging- to Frank. Althouuh t\\e A/f'ird Adams was re<>istered in the^'"'*^ its, i- I 1 r-' .. \1 1 1^ 1111 207,liiie32. name of flacol) diitman, Alexander rraiuv held aExhii.its, iii<>i't<>a1S19> ^'"^owiiei'ship of vessels, and not the rei>'istered owiiei'sl l)ecaiise in oue instance it is stated that the owners ol the Aurora were not known. Of course the vessel must have been reii'istered in the name of some ])er- son: and ayaiii in the table it is stated that Indinufl owned certain vessels and certain connuercial coinpiH nies owned othei's, althou'ister would contaiii no reference to Indians or iuiincor])orated com])aniesJ The United States contend that the testiniom-j adduced establishes Ijeyoiid controversy that Alexan- der Frank was the owner of the Il/acf,- Diumoml and tile luili/ at the time of their seizure in 1889, and that no damagen can V)e awarded the owner of these vesselsB A'. liie, shows on its ret'erenco t(»tli( istei-ed owiK'rsj It the ownei-fs oi urse the vesHt le of some pcr- eku)i<)H(l iiml 1 l.SSJ), nndtluit of tliese vessels! l'" s I the minnie. Claim No. 17. The Minnie entered Berin<^' Sea -lune "27, 18S!), riiiTvin^' eig-ht canoes, two boats, one of wliich would Ik- a stern boat, and a crew of 16 Indians and o white men, inchidinii' captain and mate. She continuecl her liiintin<^ from the 27th of dune until the l.'jtli dav of Inly, at 4.oO o'clock in the afternoon, when she was seized })v tlie United iStates revenue cutter Riclidnl /i/rs//, connnanded by ('a})tain Shejjard. The board- niu' officer directed the remo\al of 418 skins, (»ne iir(n-cli-loadin}.i' shotj^'un, one nuiz/le-loading- sliotH(/lt iiotli'nif) IkkI Ixippciu'd ; we captui"e(l ")() M'uls on that day and !K) on the next. Kej)t on hunt- iiiL:' until the 17th of Auu'ust, when, haviu"- ")(>«) seals I'll board, 1 left for the south. After passing' throuj^'h ( iiimak Pass 1 told the prize crew I should steer f(»r \ ictoi'ia. lie replietl, 'I alwavs thoujiht so.' The hidians t«dd me that if the Tnited States sailor at- ti'iuuted to take the vessel to Sitka the\' would throw R., 1437, line 13. R., U36, line 67. R., 1450, line 40. R., 1450, line HO. Atlidiivit of \i. l)itain .lac(»l)s('n stated that he had no loo- of tlic voyage to |)ro(hice, and, notwithstand'ug' tlie tact that he secured better results after the warning- than before, % emh'avoi's to establish that he left the "best sealing' g-n Hinds." lino Q, And in the meantime (after the seizure and before leav- ing the sea) you sealed .' THE MINNIE. 439 i'litol the (lay yogH A. Yes; iip to a few days before we came out we sealed ,, • , ,, tot along. ^t in the inoniiiin;. ii ,, , , , . , ,. '■ ^' nut lie says tlie seals were scattering- and tew up R., 1444, line iiicre. On cross-exaniination tlie witness testified: scdiiiiff (IS thwuiii ss(d at tlie tiiiK testitied: 'onversatioii withl odld do? we came to tliej iii«" Sea unless wot ?vening' of tlie (I to the nortli- "to the iiortli- )roceed ? d Ciilin, and tliey i out with Mieirj rs for them while ( ery long. Tliey seals, and they| e «H-(]eivd oiiti al)ly 20 niiU's, ■re, "bent sealiiin' nd before leav- Q. And the next morning you commenced sealing as though !Httliing had happened? \. That is what we did, i}. How many seals did you take the day after you were ji'ized ? A. Oh, 1 don't remember that for certain. i}. About how many? A. I suppose 40 or 50; maybe not 50; between 30 and 50, iiiyhow. His attention was tlien called to the affidavit })rinted ill the American Keprint of the Paris Proceedin<»s, vol. ,"), ]>. 3G(), and he wns asked if he made an affi- liivit containing the statement, "I then concluded I ivmild not g-o to Sitka, but would continue my voy- iijc. That night we made some new spears, and next morning commenced hunting as flio/tt/li )iotliiN(j had liilipoK'd. We captured oO seals that <(a//, and 9(> on tlir next.'''' 1 Fe answered that he supposed he did make R., 1445, line lit. and that he supposed it was correct. \ This affidavit bears date September 2, 1S8!), iind^-'^^"- «as prepared immediately after his return from Bering Sea. The testimony of (/'a])tain Jacobsen, bearing upon tile change of jiosition of his shij) afttn* the seizure, !i:is little weight when the original afhdavit made by liini on the 2d day of Se[)teml»er, 1SS9, contains no mention of the fact that he had abandoned the seal- iiiLi' grounds or changed his position, but on the eon- ^•' ^'^^^• 'I'lMv states that the next morning he commenced to lnih<- "as though nothing had haj)pened." The affidavit liled by this claimant at Paris coii- tniiis this statement: An hour or so after the Riinh went away the man left in^ °J-'*'P-.2^» 'liiirge showed me his written instructions Iroin Captain Reprint J^lu'ltard, of the liivhunl UuhIi, As nearly as 1 can remem- Proceed- mm 440 THE MINNIK. !¥ r'i Vi ingsof Tri- ber the (lirt'ctioiis, lie was to deliver the Minnir to the liiitcd; bunal of f^|.,,j.g^ iinthoi'lties at Sitka, and place her captain, iiiyscli,; tion at^"*^ mate under arrest. / staiit Paris. where I irn.s and nttch irlud senln I could. Next moriiiiif;- 1| made new spears for the Indians and sent them out sealinji-.j 1 remained in the sea up ':o the Kith of Aujiust rollowing,! and in th.it time got 48G seals and 8 sea otters. I did iiot| see an.;, thing- of the Ilmh after the 15th of July. Had ('aj)ti»iii -lacohscn at tliat time conceived die idea ot" luakiiiu' clMim on the ground that lie t'liaiiiivd his position, rct'crcnce wonhl ha\e l)e('n made t<» the fact in tliat afili(hivit: and in ('onnnt'ntiny of duly and the 17tli (hiy of August, tlic !' (hiy she h'ft the s(-a, shows that tlie hunters took ni(»re ' st'fds perday after slie hd't thise"best seahiiii' "irouiuls" :: than she did wlien slie was occuiiyin*:' them. Captain dacohsen testilit^d that when he entered » IV'rinji' Sea he had loO skins aboard th(^ ship, and | there were 418 sim/amI \\\ the cutter on the l.")tli of i' -JuK', makinij' the catcli between the *J7th of Jtiiu' ; and the l;)tli (d' ,Iuly, 2(!(S, which, beiuji' dixided h\ " the mmiber of days occupied in makinji' tlie catch, c viz, IS, o•i^•es a daily catch of nearly 1."). After the s(d/;Ure, and U]) to the time of leaviiiu :■ E.,U46, Ihie^]^, ^j.,, j|,^, Mhiuic tooii the fact that a (dianj^e of }>ositi(»n was made. The captain testified: (i). For what season did you outfit tlic acliooiier? A. I intended to stay to the middle of September; from ilie 10th to the middle, in Bering Sea. I stayed there the yt'ur before in a small schooner, and in this schooner I was iiot scared of the wind and weather. lint on cross-exainimition he testified tliat he prac- tically abandoned sealino- in the year 1SS8, on the Id of September; and testifyino- further: (}. You left the sea on the 2.'5th of August, l.SOO? A. L'.'id 1 think; we quit sealing on the -J;{d; we were some two or three days getting out. The only explanation he makes for leavino- on that iliite is that he thonii-ht he had seals enough and liad iiiiide money emuijih. P)earino' upon the extortionate claim for 833,187, iin acccumt of damau'es suffered bv reason of the iurcrruption of the voyage, the testimony of Jacob- Mii, who owned the M'nti/ic in the year 1H91, and ulio was, on the 15tli day of duly, in the year iSJjl, \v;inie(l from the l>eriiio' Sea in accordance with the terms of the modus vivendi of that year, is worthy lit' note. ['he British (Jovernment svut commissioners to \ ictoria to j)a\' the sealers for the losses incurred by I'ejison of beinji' deprixcd of huntina' in the sea in the year 1S!)1, and this witness recei\ed from the (Jov- iiiiment of (ireat Britain the sum of ^8,000 fordani- iiucs suffered b\' ftro sriiooiicis. Xo testimony is found in the record to liase the claim for "time and expense of owner, S'iOO," njion. The Government of the United States is liable for tlic chai'ter value of the Minnie from the 17ti! day of .\noust to the 20th or 25th of August, and for the vidiu' of 418 seal skins, 2 ^> and tiie spears of the Indians. K., 1440, line 66. R., 1447, line 53. R., 1448, line 61. Chart ^o. 6 , V o 1 . 3 A niericnii K e ]) r i n t, givinij;ilate of warning in 1891. 1^. R., 1447. line 10. ■HHI m the triumph. Claim No. 18. The only witness wlio liad a personal knowledjie of the occurrences in Berin<»' Sea relatinf>- to the warn- ing' of tlie Triuitq)/! was Capt. Daniel ^IcLean. His io. ' "'* affidavit, made on the 8th day of August, 1889, at Victoria, was ref.d int«^ the Record. He states that he entered leering- Sea (Ui the 4tli day of Jul}', 188!); was boarded by an officer of the United States revenue cutter Biclnud Rush on the 11th day of July, who told him that if ho should again board the vessel and find sealskins he would seize and confiscate the vessel and catch. On account of this warning the affiaut states that he terminated his voyage and returned to the ])ort of Victoria. No ])ro))erty was taken l)y the cutter, and her only claim, beside the usual iteuis for "illegal boarding, legal expenses, and expense of owner," is for prospec- tive catch. E. C. liaker, oue of the owners of the Triinnph, testified on direct examination regarding the instruc- tions given to Captain McLean relative to the durn- tion of the voyage: R-. ^1420, line Q, .Y)k\ you give liim any instructions as to tlie time that he should stay in the sea ? A. Well, of courHe T am not really jwsitive ns to iustriic- tions. 1 was simply one of the partners raanaging the attairs of the schooner, and a good deal, necessarily, would be left to j\ro'>ean's discreti(tn, because it was he that got me to jio into tliat venture. Xatinutlhi T irould he (jnuled hi/ his report as to the eircumstanees n-hen he ir ts to return, lint it was dis- tinctly understood between him and myself that he w^iild 442 44. THE TRIUMPH. 443 lal kiiowlcdjie !"• to tlie wjirii- ]\[('Leaii. His ig-ust, 188fl, at iea on the 4tli 1 officer of tlie J Bush on the " if he should kins he would 1. On account he terminnted ' Victoria. ', and her oidy isi'al boardino-, is for prospec- ' the Triifiiijih, i:e ns to instriic- aging tlieattairs Y, would be loft lat got me to jio led 1/1/ his rcjxni I»nt it wasdis- f tiiat he wf^tild icinain there to the very last of the season that he could iiitch seals, so as to ascertain, if i)o.ssible, how long that sea- (';iling bnsiness, to stay in the .sea as late as possible, to ontweigh the positive statement of that ca})tain t; ftliiit the sealing season terminated toward the last of Augnst, the opinions of all thinking minds regarding tile weijiht t(» be <>i\en testimony of this luitnre will ic disreii'arded l|ur ' voNaye in Heriny Sea, amiinst the testimon\' Ml clearly establishing the termination of the sealing Miison between the "iOth anya<>'0, acconl- inli to nuikeit proHtablc to liuntseiil after August, and it is the |)vacti(;e for nearly all vessels^ engaged in hunting seal to leave about that time. A t'ewl sometimes remain later for the ])uri»ose of trying to raid tlie. Islands, but tlicre are so few days that the sea is smooth | enough to hunt after September 1 that it does not pay to| remain any longer. Captain ^IcLean was master ust. This information, taken directh' from the books of Captain Mcd.ean, to«i'ether with his statement that the seaHno' season closes alxuit the last of Aucr tnr fur IV f r I'CC lit est Ai VCf we St( wl R THE TRIUMPH. 445 witi I pntlu ill s ill trusted tli( oyji^i'c, accord- f", \vli(» said. " r t circuinstaiiccs oiK'd as to \\i)\\ ed in an alHda- Miter the Beriiiff lu; last of Ausust. tablt' to hunt seal I learly till vessflsl ;liat time. A (owl trying- to raid tliel the sea is smooth | t does not pay toj Triiitupli on a li of the vessel, vs tliat the last'^ was the 20tli of' )wered between^ an the bo(>ks of; teiiieiit tlmt tliefS )i Auji-ust, eon- - aii'e of tlie '/'//- usual time, and ; e, no reason is e ])eriod (hirini:' id the ordinary -J !r)th of Anu'ust. ' hadciuitraeteil Franeisco, the 9, at 86.2;") for di made on the led to the con- I. iraet of 11. Liel)es & (Jo., tliey were in a ])osition to jicrfonn their part of tlie eontraet, and al)s(dut(dy did linve a vessel at Sand Point to receive tlie cattdi ofK- I43i, line the Trii())i)th made on the voyaji'e to Berinji' Sea. in the (daim for tlu; |)ros|)eetive catch of the Tr'nunpli, which the United States maintains can not lie allowed in any event, the \alne ])lace(l on eacdi •>kin is S] 1, 'riuM'e is no testimony in the Hecord ni^ai which to l)as(» the items, "le^al and other exjx'Uses, >^250," iind "time and expense of owner, ^200;'' and no tes- timony is (Mted in the Ari>ument on Ixduilf of Great liritain. 'Vhe statement of tlui money expended for the voy- age of the Ty'inutpli and of the advances made to the (few is (lualified l)v the testimonv, showin<>' that theK-, i^3i, line Ti'niiiipli hunted alon^' the coast on her voyaj^^'e to " licrinji" Sea and returned to A'ictoria the 322 seal skins taken. 'Die hinders had not heen siittled with for thisK-.i^-"- I'.itch, and tlie amount finally paid is not separated with reference to whether the money was paid for Mi'vices jieiformed on the voyafje to Px'rin^' Sea or tor services in Bering- Sea and upon the return voy-^.. 1427, line M^e. Certainly the amount paid to hunters was ])aid tor skins taken and delivered to the ' to the measure of damages for the Vessels warned out of Bering Sea and whose voyages were therefore iiiterruj)ted, if a citizen of the United States had not been interested in the voyage. The United States contends that Daniel ^[cLean, who was the owner of tweiit>'-two shares, or one- R.. 1417, line 70. 446 THE TKirMrii, tliird, of the 'I'tiKiiipli ciui hv awjirdcd no sum tnr clniuaj>es. Ex.No.i2,r. ^[cLeaii beciiiiie a naturalized citizen ot" tlie L^iited .s. claim ,, , . . , - 1 1 !• / V 1 No. 18; Ex-htates ot America on tlie oth day ot October, 1S(S2. 209!^*"' ^'" Without ol)tainin«>' tlie consent (if tlie Tnited States, and the Tnited States not havinji' consented to liis tlirowinj^- off alleli(-' ivhit U !;iiu At iillict iiKlii: r;m)£ IVOlll llhic iitlie fit to the 1)11 r 1 lleav: I'll no sum tor I of tlie riiitwl ( )('tol)('r, 1 S82. riiited Stiites, iisentc'd fu his lIH'llt, McLe;ui, Ic application N> be }i Hjitunil- 2, he Mijide an erican citizen, decision of its ation.s l»ejirin<>- 1 his rioht to in violation of f of tlie United nntrv to which >een hei'etofoi'c ^ of the United : I the ariel. Claim No. 19. The Ariel, a vessel of 90.11;") re;:isterei(] i/dh not seal vrerii tbiji lu'tn-ecn the 30th 1 169, line iiiorniny oi' the iStli. The memorandum or lo_' the day from tlu' vesHeL*' liie course from 5;")' Of)', KIJJ^ of)' southeast toward ]8o«r*>si<'»f, \vhi(di was the (-(Uirse of the vessel from uke otli of Au' whicdi time the ])oats w-i-i'e lowered every day that huntin*'' was pos- AiBum(ntonf;il)l(. jj^ »lii-ectlv o\er the "Tound covered by('ai)taiii ♦Tieat Urit- Mnier, who is citevi as sustainin<^- tlie position ot tl-e i""' 5n '''^' <^'l*diuants as to tlie location of the "best seahn/ ftLiint-ao. uTounds (UrectlA' "ver the <>"ruinent on be- half of eat Britain as having- occupied the "best sealing- frrounds:" directly over the ground hunted by the Tiirrrso in 188(), which vessel, it is stated in the Arg-uuieiit on behalf of Great Britain, occupie(l the "best seaHno- o-nmnds;" and is directly over that portion of the Bering Sea wlii(di the other claimants ici.,p.60,iiue.,^s.^j.| ^(^ 1^^ ^i,g j^j.gj, habitually resorted to by all sealers and well known ot all men engaged m the business. Locate on a (diart the position occu})ied by the Arlrl on the Ist of August — KJ!*'^ oS'. It is due south of the Pribilof Islands. L the Argument on behalf of Great Ih-itain attemnts t ) establish any fact it is that this locality is the "best sealing ground" in IWiiig Sea. At page 03 of the Argument Captain Raynor is cite 1 70 w 111 HW) sam liec 1 rliif line It tirst tlie \vlii( ( Isla \(»U A Q seal Did iiiak A cliai not the vo> iiltl ;ire li'ro wh spd •'si r ria iirr nil I. »' rccoivlcd ill u tliat tlu' vcs- rcference from liuntiii<)- l)()at, inaiiu'd in the U.St 1, the (lav \)\H'iu- to liavt' lo tills note ill ' - was ])os- ed by ('a])taiii )osition of the " best Nealiii;^' overed ))y ihe iunu-iit on be- >ied the "])est round hunted it is stated in tain, occupied 'ctly over that (■her claimants •ted to bv nil iji'ag-ed in the d by the Arirl (hie south of t on l)ehalf of fact it is that id " in IJerinii' in Kaynor is % THi: AKIEL. 4r)l (•iteont ITO*^ west h>n<>itude and of)"' n<»i-th latitude. Hut when Captain Bucknani was oc<'upyin«i- the p<»sition Itl!)^ 55' and 55'^ 05', wliich is almost identically the same location in lierin<>- Sea, the 'es practically until tlu^ (dose of the season, is that iilthou<>h there are localities in the lieriuLj- Sea whicdi are known as the "best sealino- urounds," these ji'rounds were i\ever occuj)ied by tlicir shi])s, even when the location, ])y latitude and lonptudc corre- sponds exactly with the locati(»n of these so-called tiO. sealino- orounds." I'he Ilioh Commissioners are asked to tind for «tne clainumt that his vessel was seized and her operations arrested while huntinji" in the most desirable place in all the vast expanse of water formino- Berinjj- Sea, "«wn ssssssannmiMi 452 THK AKIEL. ]K'r('li!iiic(' the claiin he olU' of totfil loss: ;m(l fu linl tor tnuttlicr cliumjiiit tlint liis v.-sscl, altliou;ili limiting (»v('r the saiiic ain-a, after the uiiIummIciI wai'iiiui:', Ictr tlic desirable sealiii /(■/, and his claim should he considereil as an atteiii|i! to nudct daniaiics from the'', ^-ernmeiit (»f the I'liitcil States for the interruptioi. "f her N'oyan'e from tlic ijnth of .lid\, when in fact she continued her InmtiiiL; o))erations until the iSth day of August, and he treatctl with accordingly. This witness was called iirst, not on his own i)eliiill. hut as a witness for the purpose of |Li•i^'iu;Li• testinioiix on the • K., 706, liue admission that he liau ninih' an ailidavit statinii' tin THH AKIKI,. 453 ;s : ;uiy;iov .if til,. I I ;is Mil ;irt('iii|tt t of the rnitcil ;i,a'<' tVoiii till' <1 lici- liinitiii;: nii'l !)(' trciiten ^ lis own ix'lijilf, iiiii' tcstiiiioiix the loth of July. ink. it; hosv loii;^' did V are lo,st,and the :lu' iiiioniiiitioii f lie claiin of the on cr<»8s-exani- uiing the inoiitli »f July. id the witiK'ss 0? -"• A, No; I haven't. (f. Have you the \oiX of the Ariei for the year ISHJH A. No; I have a kind of rough diary. Q. Wliere is thatt lie then re(|iiested liis in(^inoran' ])ressed (111 cross-exaniinatiini, and read therefrom the entry k., ijiwjiue under . •^• Q. You had seen this ineinora.iiduin Just a few days before '*• ^*^^> '"le you took the stand on tlie 23d of December, had you not? ^*'' A. I had it in luy jtossession. (). And you had looked at it, and talked with counsel about it, had you not? A. You mean the day 1 appeared here? Q. Yes. A. The counsel had it at that time. Q. But you had talked with them about it, had you not? A. I had t.jroken with them. <\). I5ut you knew what time y(m left Uering Sea when you were on the stand before? A. J could not tell without tlie diary. (}. Ifhl you not l,>ioir that i/ok had that diary a'lwn yuu took the stand Jirstf A. 7 kiK'w that couii.sOth of July, I think. (). I want to know the date you went out ' How longdid you (ish tlieie .' A. / don't huioir the date. The 8hip\s hooh,:ar< lost, and the li>JU>»i*<'iLuiuiv.m'aimmi 45-1 THI-: ARIEL. \U\\ littlf wc'iLilit will he ti'i\('ii ti) the tcstiiiKHiv <»t' rliis witness r('U';n"|ii|i iit'tcr the (l;itc of the wjiniiiii;' He iiindc the dclili- <-r;it(* iiftciiipt to ('stMl)lisli tli;i1 his ship h'tt tlic mm the .'loth tif ,liil\\ and it was iKtt until toi-ccd In- ilic (•ri»s>-c\aniinati(in to surrcnth-i' liis incniorinKhnn th;it hr (liii so. alter haxiuii' stated thai he was inia!>le \u li\ the date Ix'cause the hooks were hist This same witness en(h'a\(»red to e>1al>nsli the laii that he inteiuh-d to seal in IJeriui;' Sea in the inoiilli of ( h'toher. i}. I'or wiiiit time did you outtil rlic \essel .' ];., lir.!i. liiii' .\. 'I'o iiijike a Idiiii' sciisnii. We intciidtMl to try Octolicr '"'''■ senlinj;' in tlie I>('riii<;- Sea. and we titled oat for a loiii; seas(»ii. ((>. To reiaaiii until October in tlic lieriiiji' Sea' A. Vcs, sir. (Ml •Toss-examination he testilie. Had yon ever, before you went there in ISSU, heard a sealer sav he had been up there sealing in October? A. N\' this w itU'ess will not. n i> appi-idiendcd, be made the hasis tor (xtendinii' the tiiir- t'of which the hiiiitino' \"oya^'e wtudd ha\e eoiitinned l)OV(»nd the ordinai'\ limits fixed 1>\" the general tes- timony on tliat subjeei. In tlu; Aru'inneiit on lududf of (in^at Britain, treat- in<;' spcH'itieally tliis elaim. tlie statement is madeihat the mate, Smith, correltoratefj the testiiiKtiiv of tlic ca])tMiii "that it was his intention to tr\ t^ht^ October R.. 1 47: 3(!. M.al >Mpi 'J' A, that liim ihel and as p u iii( A S'KK aiiv' I <.>. repd ill tl the rvp rxp was Q A altll iia( I - o\ he' 1 1 es -eft ;it } Is X \cs § TllK AiilKL. 155 the t('Stilll()ii\ Its of liis slii|i wlc the (Iclll.- ]) left the >c;i , Idi'ccd l)\- I he i loi'midtnii tliiii \v;is tiii;i!>lc td r il)li>li ;llc t;i(i i ill tlic iiiuiitli l to try Octdlici' out lur :i Ioiil; Sea ? ^ood scaliiiji uji )y a wiialer iiuti it peo])le of tlie »iitli t<) ht' there, in ISSU, heard a iftober ? •efore 18S.M, that ^is betore ISSD; > will not. ;i i> 1 iidiiifi' the tiiii" jnc ('(mtiiiiicd le ^rtUTjil tcs- ^ Hritniii. trcai- 1 is luiuh' 'hat ■inidllN' nt the r Htio Octolu'i' M aliiiLi',"' and the Kccoi'd (p. I tsj, line ."»S) is cited in >ii])|>t.;t ot tl.at stati'incnt. Tlic ti'stiiiioiiy of tilt witiH'ss. Smith, tiici'c i;i\fn, is: (}. NVliat uiulerstaiKliii^' was tlicre? A. Oil several oecasioiis we met on board the schooner — that is, the hunters and inyseit met the ciiiitiiin and asked liiiii to lit tlie vessel well out. as siie was at tlmt time one of ilie hiryest vessels out of Victia'ia Harbor, a staunch vessel. Mild we had all made up our minds to make as lou<; a seiison ,is i)()ssible on previous rcpoils. . Was t here any mouth nienlioned. orany time mentioned, uhieii you desired ta I'emain in IJeriii;;' Sea ' A. \V(dl. I l»elie\(' that I Wiis ou(^ ot tlie parties that per- sinided the cai)tain to ju'ovisiou the vessel up until <>ctolier, miyway. . What do you mean by "iii) until October.'" A. To iillow us. ir the weather permitted us, ami if the reports were true with regard to seals bein<;' Ibund that month ill the i>erin,<4- Sea. that we would be able to stay. Tliis witness was in the Heriiiii' Sea in ISIM), on the Kafliin'iiic, :ind it" he desired (•• X\'\ his nnheard-ot" experitnent of ( )ctol)er sealiiiii', it iniiiht reasoiiiiliK he e\pecte(l to ))e found that the \(»\at;'e of that \-essel was continiied until ( )ctoher, Imt the witnes.s lestitied till cros.s-exainination: (v>. What time did you come out of the sea in 1890? -V. 31st of August. And lie o-ave no i^xphnuition as to flu retison, altliouoji OH I'edirect exiniiinatioii an atteiiiut v/as made to ascertain wliy he left the sea at tliat time. From four to five dsivs are re(|iiired to make the \ovao-e fn^ni the hx'ation where the vessel <-hances to he Innitiuo- to one ot" the ])asses: therefore this wit- ness himself, haviii;: the opportmnty t(» continue his ■^lidiiio' voyao'e initil Octoher, left the sealino'^i'romuls id about the 2(!th of Aiioiist. No proi)erty was taken from the Arir/, and the • Jovernment of the I'nited States claims that this vessel shoiihl he awarded the minimum of dama|;es, if any .sum wduitever, because of the dishonest at- K'., IISI, lim, .">S. R., 1186, lino 40. BSB 456 THE ARIEL. temj)t to make out an aggravated claini. HowevtM-, should the 1 liji'h ( 'oniniissioners decide, uotw ithstand- mg the false })ositiou taken by the captain and pint owner of the vesisel, to award damages for the bal- ance of the season, the owners would be entitled to demurrage from the 18th of August to the 20th or 25 th of that month. THE KATB. Claim No. 20. Tlie Kate entered Jierino' Sea on tlie 24tli of" Jiih', IJ.. i"!"7, lino |1S81>, caiTviuo- ('i<'-lit canoes and Indian luuitcrs On ln' l.'Uli day of Anji'U.st slio was warned by tlio United jStiites revenue cutter Uirhaiil linsh to leave Herinji' ISca, under threat of seizure. No part of the outfit or |(iir<>'o was seized. Tlie warning- to leave the sea was not obeyed; but •' -.^.1378, line imi the 14t]i of Aiioust the mate entered in his loi*': August 14. — Tliis day begins with calm and heavy seaK., I'Hs, line lirom westward. At ](» a. ni. oanoes out, and returned at (• '''• m.;calm. The remainder of the day wind westerly and jcioudy; pumiKS light. On the 1 ")th of August this entry was made in the lloti': At noon wind soutlierly, and hauling to the southeast; K., 1378, line lij:ht breeze. At (i a. m. canoes out, and returned at 4 p. m. '•'• |\Vind continued the same. Hove-to under tbresail during lie night. On tlie Kith day the entry in the log reads: At noon, southerly wind and thick fog; at 8 a. m. set theK-, i:^"!', line 1) and double reefed mainsail and beat to windward. (Jon- '-• [tinued foggy the remainder of the day. The entr\' in the log luider date of August 17 con- Itiiius this entry: blowing strong and heavy sea. and rain and fog, i>umi>s l*'-, i:<7!t, line nht, lookout carefully attended to. '*•''■ ( )n the l.Sth of Aujiust the lou' shows that the vessel lighted Ugemok Island, which would indicate that she It't't Bering Sea through rnimak I'asson that da\, 457 4r.s THK KATK. I K'.. i;iN(t. 20. A. t). A. A. Tl 11. K., i;i82, 63. 42. ''"" 'I'lic liiiiitcrs liiid iikkIc a tttr;il catcli of 730 or T4i>', seals in I5criiii:' •''^I'li, wliicli were dcliNcrctl to iIm o\\ lici". I''roiii the l.'Uli ila\' of Aiiu'iist, tlic (Ia\- on wlml flic \<'ss('l was warncil. until the li^tli, she lowcici licr canoes tw ice, hnntinu' the full daxs. Tlic ciilricsj in ilic lou' for the other intei'xcninn' (la\s showed di;ii, the weathei' would not pei'init ot' sealinu'. liii'' The te-^rinion\ of Alexander iveppen, the )ii;itc, shows tliat the /\\\\ (lay of Auji'Mst and tlic ISth day of An<;iist. inclusive, it was s(» storniv that yon conkl not lower a sealing l»oat, wasl it not:' A. No, sir. i). VVliat do you mean by that; it was or was not? .V. Von couldn't lower: it was strong' and wind>. f (}. So that it you had not been warned on the l.')th,oii tin- HJtIi, 17th, and ISth you couhl not have lowered your bosits anyway, could you '. A. No, sii'. The sealiiiu' season in l)i'rin<>- Sea was practieally (dosed, and the damage that tliis vessel sustained is vi'vx slight. The witness He])])en, who was mate on flu* voya^'c, testified: lint' (}. Von left Bering- 8ea that year about the time the nasty weather .set in, did you not ' A. Yes, sir. (). And about the time that the westerly winds were beginning' to be the prevailing winds — strong westerly winds.l Is not that so.' | A. Yes, sir; we were getting westerly winds all along. \ lint' Q. And you think that you came out in ISS1> when iirctty nasty weather was begiiniing ' A. Ye.s; some fine weather, too, before we went througii the Pass; and then it started in nasty afterwards. Fiiie< weather the day before the day we went to the Pass. l (). It was not tine weather the day before you went to the| '^'" Pass ? In 11 III id nidi vca I'llV Tin; KATE. 4;') 5) 1 <»t' 7i3(i or 74ti livcrcd to tlui when picttV} .\. Two days hi't'oic that. (}. The l.')th was the last tine day vim had J A. Yes. (}, And vou lowered your canoes on thai dav.' A. Yes. ■ riic witness testilieil that lie \\a> in I5criiiii' >^t'a in !'■ \cai" ISSSoii llic I'lilhliinlcr. and was not w anieil; k., i raiiie out the ir)th ol' Anuiist. as near as 1 can re- '^^^ iiiiher;" that he was on the lihul; hiniiKiiiil in 1*>S7 i;.. i •a. \K\. line is:'i, linn ^ h't't I'x'i-iiiLi' Sea "alioiit the l')!h of .\iiHnst. I ive Avent throiigli i'terwards. I-'iiie the I'ass. 3 you \vent to tiie \ ■\\\\\K. ( 'a|)tain Moss was aske.l rciiardiiiii' the time that he ilciided to sta\' in the sea : '^>. Now tell mc. Captain, what were your instiiictiniis as ix'., i:;s7, lino n I lie time yon should stay in the sea.' •"''• A. .My instiuctioiis were to stay tliere as loan' as the vciithei' would permit. ( )n eross-exainination this witness was cxaniineil as 1 the time when he liad K-I't the sea in t'onner xcars: t^). What boat were you on in 1S86.' A. Oil the FavoHfltv. <^ What time did yon leave the sea? A. About the lOtli of Anr;iid in Herin_i>' Sea until the Hrst of ()ctol)er: hut iu nldition to the fact that the mate thou;^ht the had nather had set in, and that it was the usual time for !i;ivinii' the sea, accordin;^' to his experience, and the lal time, accordino- to the experience of the ca[)tain. 400 THK KATE. 41. as t<'stifi«Ml to, the Kccord <-ont!iins the positive state nuMit of the owner of tliis Nfsscl rcjiardinji' tlu* dum tioii of tlie voyao(', hroii<>iit out on direct exaiiiiiia- tion. I{. 1371 line ^^' ^*"^ y**'^ f?'^'® ''''" (^''*^ raptaiii) any instructions as t( ' the time he was to stay in the sea? A. He was to stay as U>ng as he i)Ossibly eouhl carry oi his seaiinjj^. Q. No more instructions beyond that? A. Nothing more. I considered that he was well aware o the work he had to attend to. (). With re},'ard to provisions, how long did you provisioi: the boat for; what length of voyage! A. About the middle of September, to reach here in Vic toria. No citation of testimony is necessary to prove tlia tlie time ol•dinaril^• consumed in makiim' tlie voxamj from Bering' Sea to Victoria was in tlie neij^hborluHM of fifteen to seventeen days, and tliat tlie avera^iu^ time consumed 1)V a sealinji" schooner in stowiii"! away lier small boats and in ])re])arinf^ to leave tluf ]5erino' Sea for her return voyage and in making tlift passag'e from the place in the sea where she chaiiccfli to he sealing to the Pass, was alxuit five days. | Accordingly, (Hi the statement of the owner liiui-|; self, the voyage of the Kate would have ended tlm 2r)th of August, and she sealed c(mstantlv until tlii| 17th. ■ I Helyea's charges, 82r)(), depend up(»n the same con- tingent arrangement as all of these charg'es in the vari- (His claims. \ There is no testimony cited from the Record n|i(Hi Avhich to base the claim for "time and expense nt: owner, 8200," and there is no such testimony. The Kate was built in 1802 and her registered toii- nag'e is oH.ll. This vessel is entitled to recover from the (jovcrii- ment of the United States denuirragi', as in case ot detention, from Aug'ust 18 unril the chtse of the scal-i i • i illg f Hill r •like i\\ 11' /iikc jit I' IVaii iraui R., 1391, line 45. THE KATE. 4(;i «* positive stateMiij^- sensoii; that is, for a pcrioil \ aviutisly cstimatnl at inlinji' tlu' (luraMi'diu two to seven flays. direct exaiiiinafl 'Plie tact that the siip|)iies ahoard the \ es>el were sen otV at tiie tiadiii^- |)ost oi' ( 'harh's Spring', the iiistrnctions as t(| ■v'* lu-r, on her return N'oyaj^'e to \ ictoria, should he xcn into t-onsifh-ration; as sh<»uld also the tact that bly could carry oii ^, Kvu(|Uot, and other phices (»n thi- west c«tast of f jViUUMMiver Ishunh she was loa(h'd witli a caj'jio t(»r was well awareol iiansport to \ ictoria. did you provisi()i| reach here in Vi(| iry to prove thiitf " tlie vo\'iiy(| lie iiciu'hborh(Mi(l| hat tlie averajid )iier in stowiii}j;| iiiff to leave tlu^ id in making- tlu* lere slio clianccd five days, the owner hiiii- have ended tlic; stantly until tlu' on the same coii- iru'es hi the vari- the Recftrd updu and ex})ensc nt t'stimony. I'r reji'istered teii- foni the (Jovcrii- i'e, as in case ct dose of the sciil- . IHMI. lilies i:., :>-J: U., i:isi. f.-/ IMAGE EVALUATION TEST TARGET (MT-3) /. // .V4 1.0 1.1 iiii2.a |jo ■^" 2.5 2.2 Ht M£ 12.0 Ng 1.8 L25 iu lii^ V] 72 /: 7 PhotDgraphic Sciences Corporation 23 WIST MAIN STREET WEBSTER, N.Y. MSSO (716) 872-4503 H R., 1811, li 20. lie the pathfinder. Claim No. 21. ^^his claim ari.ses from the seizure of the Pathtimk\ in Neali Hay, a harbor, in what was at that time \Vashiii<>ton Territory, a ])ai*t of the United States ^^{ America, on the 27th or 29tli of March, 1890. Tht seizure was made by the commanding- officer of tht United States revenue cutter ('orwin on the grountl that the vessel had been seized in Bering^ Sea in tht year 1889 for violation of the municipal laws of tlu United States and instructed to ])roceed to SitksiJ there to be suiTendered to the authorities; and that she had, contrary to instructions given her captaiiJ by the commanding officer of the United States cut-j ter Ititshj refused to surrender to the jurisdiction o^ the court of the United States in the Territory oi Alaska, but instead i)roceeded to Victoria. William Munsie and Frederick Carne, jr., citizens of Great Britain, owned one-half of the Pnthfitiikr\ and Andrew J. liechtel, a citizen of the United States of America, owned one-half The admission was made on behalf of Great Britaiiij that the interest of Bechtel in the Pathfinder haclj remained unchanged from the time of her seizure '\\i 188!), at which time he was a half owner in tli venture. The vessel was seized March 27, 1889, as shown! by the findings of fact of the Tribunal of Arbitratioiil convened at Paris, and in a footnote to the tahloj found in Annex C to the Tribunal of Arbitration tlitl 402 THE FATHFINDEK. 463 tiitemont is made tliut she was released two davs atcr. Alexander Re}>})eii, the mate, called as a witness 11 behalf of the claimants, was unable to fix with iccuracv the date of the seizure, althoujih he testi- icd, "We started from Neah Hay at (I o'clock in the iiornhig' and came to Port Townsend about 12 o'clock ^y.^^^^a, Uue 11 the forenoon." riie telegram sent by the conunanding- officer of lie Cnnritt to the Secretary of the Treasury at IViishington placed the date of the seizure as March ill. On that dav he telegraj)he(l the Secretary of lie Treasury, Washington, from Port Townsend, as 'iillows: 1 found at Neah Bay, Wasbington, today, British schooner K.._i8io, line hthfinder. Escaped from steamer Runh after seizure in ^• Bering Sea last year. Have detained and brought her to jiliis place and transferred to custody of collector of customs lending advice from Department. Another telegram was sent on the same day to the t'cretary of the Treasury by C. ]\I. Bradsliaw, col- ctor of customs at Port Townsend. Am detaining British schooner Pathfinder, awaiting sstructions. Please advise. George H. Tichenor, Assistant Secretary of the icasury, rej)lied to the telegram of the collector of iistomsat Port Townsend, under date March 2J),1HJ)0, s follows: in the year 1887 the Department, in a case quite sinn'lar, R., 1810, line lit in some respects stronger for the Government, decided >"»y- lit the vessel could not be held. In view of that precedent, ithout now reviewing the principles ujion which it pro- wled, I direct the release of the Pathjindcr. The schooner was accordingly released, but instead proceeding on her voyage, sailed across the Straits |t Juan de Fuca to Victoria, where she was dehiyed w eek undergoing repairs. The seizure was n()t the cause of the /V/(/?«(/f'r pro- •<•- *^p3,i'iie |(eding^ to Victoria. If the vessel had returned to Hue 42. ^' 464 THE PATHFINDER. ( ( I'oi ■ rhi Vv DIM iirti me 1k' R.. 81'I. K., x^l'l, Hue Neali Hay aftor Iut release, slie would have anivtM there on the iiijiht of March 2!), and the seiziin^ ^''* would have resulted in her detention from the morn inn for tincr thiifs. In the itleadinys tiled before this IJi^'J,0()(>: l)ut in the Arji'ument the claim is mat" tlie siini^ :' the Paris Tiij iu'h Cominissioi I the iniioiint ol iiini is iiiii(U' toj miajies for "ilk-] ; vessel, ^2,000.1 »1 and legal exi 1 of any exj)eii(li| It of the seizurel he Arj^ument oij amajjes it is foj •ee (lays, the only witnesj > testitV couceriif le sei/Aire. took place? what was said anj xatnine tlie paper le on deck and tol^ >n board the ciitte n board, made faa 1 heard take place- iven that you hear] of that kind! jaiii and told us r Tort Townseud. A. Answer to that? 1 went and told the men to heave up I tlie anchor. Q. Did you do that at once, or was there a", answer before I you did that 1 A. Not any that I know of. Q. You were instructed to neave your anchor, and you did? A. Yes, sir. Q. Then what did they do ? A. Then they towed us out of the harbor and took us to I Tort Townsend. The Government of the United States asserts that this vessel was seized within the jurisdiction of the L nited States in o-ood faith; that for the purjtose of inakinjr an investigation she was towed to the nearest t('le<»ra})h station, and there released as (juickly as i»rders could be received from the executive (le})art- ^'g ^^^^' ^*°® iiient of the Government, and that no damages can be awarded her owners. The vessel, having- been forced into Neah Bay under distress, had the rig-ht granted her by the law of natiims to dejjart without interference: but in order that the claimants might be in a position to advance the claim (»f jn'ivileg'e, it was the duty of the officers of the Path finder to demand the ]n'ivilege of the com- mander of the cutter C'or/r/n, ar 1 to make known to him that the vessel had entered the jurisdictional waters (if the United States in distress. 'J'his privileg'e was not claimed, and no such information was <^iven to the riiunnanding- officer of the Convi)i, as is clearly estab- lished by the testimony. 'I he owners, or their re))resentative, not having- iisserted their riglits at the time of the seizure, and the vessel having- been seized by the })ersons repre- senting the authority of the United States, in igno- i-imce of the fact that the vessel had entered Neah Bay in distress, no damages can be awarded. B s M R., 1650, 55. E., 1651, 54. E., 1652, 26. E., 1652, 40. R., 1652, 63. R., 1653, 40. THE HBNRIETTA. ClAIM No. 22. The Henrietta entered Bering- Sea in September, 1892, in violation of the moitiis vivendi. On the Gth line of September, Captain Hooper, commandinj? tlie jj^g United States reveiine steamer Conrln, .seized licr. Sei)tember 10, Commander Evans, commanding- the United States naval force in Berinrted to Henrii'tta hail aken to Sitka, :;har<:,e of vio- Stateis; at the e a declaration r>hitioii of the v> (.'oiideiim tlie "slie would he at Victoria for etarv of State, isett Sir Julian uiieffa, and in- to the authori- 11 a charge ot se of failure to j»- the revenue British autliori- modus Vivendi."' | rinff date Feb- I enricfta be de- f rovided in the Mr. Foster replied, in a note dated February 21, ^•' ^''S'^' ^'"'^ ls{)3, that he had recommended to tlie Attorney- lieneral of the United States that the Henricttd f)e ilt'livered to the proper liritish authorities for trial under the modus rircndi. The I )epartmeiit of State advised Sir Julian Paunce- ^^-jgi^ss, line tote, under date of Se])tend)er 2, 1H1>3, that the libel against the Jfeurirffa, cliar3. Sir: I did not fail to transniit to the Earl of Kosebery tlie iiKiuiry whicb you addressee! to me by telegraui on the lM inatiiiit, as to whether it is the desire of my Government tliat the Henrietta should reinain in charge of her ca])tain or tliat the United States should send her to Victoria. I have now the honor to inform you that in reply to the above iii(|uiry, Lord Kosebery has instructed me to request that rlic Henrietta may o^ sent to Victoria under the exact terms 111' the modus vivendi, or be left in clianje of her captain at the iiptioH of !/our Government. On the 23d of October instructions were sent by the l>ei)artment of Justice of the United States H., 1659, line lirecting the United States marshal at Sitka " to ^' notify the ca])tain of the Ifenrietfa that the vessel was released and subject to his absolute disposal;" ^-^q^^^' ^® iiid thereafter the Department of State ad(b*essed the tnllowing note to the Hritish ambassador: I have the honor to transmit herewith for the information 111 Her INIajesty's Government, in connection with previous ei espondeuvje, a copy of a letter from the honorable the Attorney-General of the 18th instant, showing that the Si iiooner Henrietta, with her boats, tackle, apparel, furniture, Hid cargo, was, on November 23, 1893, turnetJ over to the cap- in in of the vessel, who gave kin receipt therefor. 488 THE HKNKIETTA. 13. K., 1663, 8. R., 1663, 48. E., 1663, 56. R., 1677, 26. line C{>])taiii Piiiokiiey, examined «ni behalf" of tlie claimants, testiiied: Q. When was she actually delivered to vou? A. I think it was the L'3d of November, 18U3. '^riie (Government of the United States admits its liability for the detention of the Hvtirk'tta from the (!di day of Sei)teml)er, 1H!)2, until the 23d day of No- vendjer, lsy8. line Ca|)tain Pinckney, called on behalf of the claim- ants, said: i). \}o you remember what time yon arrived at Sitka? A. I think it was the L'Oth of September. Q. Did yon remain with the schooner? A. Well, I stopped on her a day, and then I went ashore. Q. As far as you were concerned, you were not interfered j with in that respect? A. No, sir. Q. How long did you remain in Sitka? A. 1 think that I remained there two days. Q. And then what happened ? A. Then I went to Victoria. '^I'he statejnent is made in the ArjL»'innent on behalf | of Great Britain that when the mastei- left Sitka the ^^"^crew Avere in jail. The cajitain testiiied: Q. Was it in the Jury room \ A. 1 do not know. It was not in the jury room. I think it was in the anteroom where the keeper stopped, line Q. \v ij^ it the Jirst time you saw them there? A. Yef, sir; I think they were put in that day to prevent them from going away on the steamer. ^i"^ Ca'ser Doring, one of the crew of the Henrietta, testiiied on direct examination: Q. After you arrived at Sitka were you detained there? A. We were. Q. How many of you? A. Six of us. Q. Were you put in the sherif's o;ffivef A. 3't'S, sir. ■ Q. For what length of time? A. For about three hours, I should say. Q. Whatfot? THE HENRIETTA. 469 behalf of tlic (HI f I8i»3. ates admits its tt(( from the (Itli 3(1 (lay of N(»- f of the claiiii- v&Ci at Sitka? m I went ashore, ire not interfered ,'8. meiit on behalf left Sitka the ed: y room. I think jpped. ere? it day to prevent the Henrietta, letained there? A. We had arranjjed for our paasajjje in the ConitUlmn. When she was ready to jjo the sheriff came on board and took us in there and kep ^ us there. ih What did he tell you ? A. He told us that he would keep us there until the boat went away. The master of the vessel left for Victoria two (lavs®'i^|'^i°®" iitter his arrival at hitka, and thinks that it cost hiin r., i664, about 8.')0 to g-o (hnvn. "About a thdlar or two, I 1'°«»3,13. think, would cover my ex})en8es at Sitka before leav- iii{jf for Victoria," He remained in Victoria until July, 1S93, when he returned to Sitka, remaining- there until the delivery of the vessel on the 23d day of November. There is no testinnniy in the Record that Caiitain Pinckney w.is emjdoyed by the owners of tiie vessel, and there is the positive testimony that he was not paid for services during the time that the vessel was in tlie custody of the United States authorities. There is no testimony that he was not emidoyed for other I purposes at Victoria in the interim, but he asks the (lovernment of the United States to pay 8600 for his hoard at Victoria, when he was not engaged in cou- iH'ctie condi- tion as she was M'hen you startec' for home on the 0th of September, l.S!)L'? A. Of course there was a good deal of wear and tear to her sails coming down. Q. Yes, but what was lh that were in there? A. Well, I do not know, but in my mind 1 think it would be about $.'i, or something like that. Q. Three dollars for what i A. Three dollars per skin. R., 1661, line He says that the 420 seal skins seized were deHvered R.^%65 line^^'^*^'^ ^'* \\\n^, but that tliey were (hnuaoed. lie dis- 10. posed of lof) of tlie skins at Sitka. Kij^ht ••uns and a riHe, taken from the vessel l)y tlie authorities, were R., 1666, line returned to him "more or less damajfed." The Indians ^^' kept their canoes, and the boats were returned to the vessel "very much l)roken and the bottoms all eaten out with worms." The Arjiiunent on behalf of Great Britain charfi-es Ex. 108 G. iif^^.^s .^^ shown by Kxhibit S, i)a<'-i. 108, s<)13.(i()." 22, Exiiib- hixannnni<^" tins exlnhit, it will a})j)ear that almost Its, p. 282. (3^ ^^j.y {jvticle, with the excei)tioii of t!ie jn'ovisions, are articles that were undoubtedly returned to the vessel, such as coin))nsses, saws, bits, knives, water casks, etc. In that exhibit the charge is made also THH IIKNRIKTTA. 478 levoyajreinSep- ■(;„. "tln'et^ iMnits, two ot' them new, s-j.'jo." The and the damage tliu same coimIj- ue on tlie (ith of wear and tear to and tear to her y voyatre ? What ^od a voniHtion as the Hhiftf »t lepairn on Iter tink the injury to Hite put the rennel the bull, unless liad to be taken rliat extent were there ? I think it would were deliveivd iissl\- exor- bitant, so al)solutelv without foundation in the Record, iiiul so unusual tliat a detailed discussion cd" e.'jh item is considered unnecessary. '^I'he llijih Commis- sioners, u])ou "i-pectiufi- the schedule, will find that the ilhi^tnition of the double char. |>ractieally represents the method in which the entire schedule is nnule uj). Two items for le{«al exjx'nses, as follows, are contained in the schedule: " Lej^al expenses at Sitka, 8ir2.r)()," " Helyea's hill, /r proceed- ings at Sitka, ><118." Those items are supported by tiie Record, and inasunu'h as the money was expended in behalf of the owner in protecting- his schooner aj^ainst the charge cd" violating' the revenue laws of the United States, from which she was subse([uently released, the Government of the Unite^(!0()," is based upon the ttdlowinjr testinumv: (). Had you any other agreement with Mr. Si)ring as to any U., 1738, line other charges ? 52. A. Yea; in thefall of ISO.'J. At the time it was not known whether tlie vessel would be back or what would be the re- sult of the case. There was some talk of appcalitig from the ih'v'mon of the court at Sitka, and a lump sum of $000 was agreed to as the cost with respect to the claim. This was to prepare the claim and get it in and look afte. it until it was settled. Inasnuich as no decree was ever entered, and f '^n- secpiently no ap})eal ever taken from Sitka, and as there is no testimony that ^fr. Belyea had any con- nection wdiatever with obtainini>- the vessel for the owner — but on the contrary the diplomatic corre- sp'jndence already cited shows that the vessel was 474 THE HENKIETTA. 51. released by order of the l)ei)artnieiit of State of the United States — the chiini for this item, whicli was based upon services to be performed in connection witli the appeal, ^^'hen a claim for apjjeal .even was never filed, is without foundatimi in fact. The item "Ex})ense8 at Victoria, 8()0()," has been mentioned. The claims "Loss of time, waiting- delivery of ves- sel at 8100 a month, >S700; hardslii})s suffered by master, 8500," and almost every item thereafter until the end of the schedule are demands absolutely Avitli- out foundation in the testimony. They are, more- over, })ersonal claims of the })ersons named, and are therefore not within the jiu'isdic.tion of this High Commission. Concerning' the item " Personal ex})enses and trouble of Charles Sju'ing-, 8500," Sj)ring' testified: E., 1735, line Q. The time that you 8i)eiit here that you refer to was spent in preparing a claim against the United States for the seizure and detention of the Henrietta '! A. It was more particuhirly to collect evidence, I think it was. Q. For a claim against the United States? A. Yes. Q. Had it anything to do with the defense of the suit at Sitka? A. No. Q. What time you spent bere was in collecting evidence with Mr. Jielyea to present the claim to your Government to be recovered against the United States for seizure? A. Yes; I think that would be about right. The item "105 skins sold at Sitka, 815 a skin," does not take into consideration the fact that the ca))tain R.,1665, liiie testifies that he obtained 8525.15 for these skins at Sitka; nor the fact that in the Argument, page 85, line 50, the .statement is made "in 1S92 skins were worth 814." The claim of 82,000 for de])reciation in the value of the vessel rests upon no testimony whatever save ihat of the captain, where he says that it would have 21. ise of the suit at THE HENRIETTA. cost >S2()0 to re})aii' her. Si)riiig', the owner of seven- eighths of the vessel, testified: Q. You saw the Henrietta afterwards, did you not? A. No, I don't think I ever seen her here since she went away. Fell, the owner of one-eig-hth of the vessel, testified that when she arrived in Victoria he was absent, and that he did not see her until the 22d or 26th of March. He knew nothing- of what care had been given the vessel in the meantime, and inasmuch as the owners were (quarreling with the ca])tain, as is shown by the testimony, some presumption might arise regarding Ihis. Q. Did you ever own any other vessel ? A. Yes. Q. What others? A. Only two small vessels — sloops. Q. What do you mean by a small vessel? A. A vessel of eight or nine tons. Q. Below the register here, 1 suppose? A. Yes, below '^he register. Q. Did you ever own a registered vessel before, or own an interest in one? A. No. He testified that the vessel was not hauled up on the beach to have her examined, and lie evidently knew nothing about the condition of the vessel except that she was lealimg a little and that her sails and roj)es were worn. He did not know whethei' the leakage was about the centerboard or not. If it was it could have been rej)aired at n nominal ex])ense. This witness testifies regarding a sale which is cited in the Argument on behalf of Great liritain. A read- ing of his testimony will show what weight should ho attached to that ofi'er. The slKiriff subsequently seized the Henrietta under an execution directed against Mr. Spring for a debt not contracted in connection with the Henrietta, and Mr. Fell testified that they did not have time to 475 R., 1730, line 17. R., 1741, lines 40, 37. R., 1743, line 49. R., 1742, line 53, R.,1741, line 50. R.,1744, line 50. R., 1745, line 40. 47i; THE HENRIETTA. endeavor to sell the vessel before the sheriff had her. There is no testimony that the vessel was free of liens when the sheriff' sold her, and the sum realized at that sale, as said by the High Commissioner on the part of the United States, goes a very little way in estab- lishing- the value of the ship. R., 1747, line The Government of the United States is liable for the fair charter value of the Henrietta from the 6th of September, 1892, until the 23d of November, 1803, together with such losses as the owner actually sus- tained. The boats were undoubtedly damaged, legal expenses were incurred at Sitka, and the value of the skins depreciated. the oscar and hattie. ' Claim No. 23. The Oscar and Hattie was seized by a revenue cut- ter in the service of the United States in the harbor ^•^^^^' ^'°® I of Attn Island on the 30th day of August, 1892, for a viohition of the convention signed on the 18th daj^ of April, 18J(2, between the United States and Great I Britain for the renewal of the ^^/or/^fSi'm'Wf// of 1891. Attn Island is the most westerh' of the Aleutian Islands, and the harbor in which the Oscar and Hoffie was seized is in Bering Sea. The seizure was made ^ Igo \ine57! lb}' the United States revenue cutter Mohican. Article 3 of the itiodas rirciidi of 18J>2 provided: Every vessel or person offending a}>ainst tbis prohibition I in the said waters of Bering Sea, outside of the ordinary territorial dmits of the United States, may be seized and detained by the naval or other duly commissioned officers of either of the high contractting parties, but they shall be handed over as soon as practicable to the authorities of the nation to which they respectively belong, who shall alone liave Jurisdiction to try the offense and impose the penalties for the same. The iritnenses and proofs necessary to establish \the offense shall also be sent with them. This article is the same as Article 3 of the modus Irivoidiof 1891. Parliament enacted in 1891 the " Seal-fishery Act, ^^*^J ^f' 11891." ■ -■•-•' That act ju-ovided that Her Majesty, the Queen I might, by order in council, prohibit the catching of seals by liritish shi}is in Bering Sea, or such part thereof as was defined by the said order during the h)oriod limited by ''le order; and "if a British ship is 477 23; Ex- hibits 263. 478 THE OSCAR AND HATTIE. found \vitlnn lierinji' Sea, havinu on hoard thereof fish- imj or shooihuj hiij/loneufs or seal skitis or bodies of seals, It shall lie on the owner or master of such ship to prove that the ship was not used or employed in contravention of this aety R.^io34, Hue ^j^ order in comicil, dated "at the Courtof Wind- E., 1534, line 8or, Dtli day of May, 18W2," was made, and instruc- ^^" tions were issued to British cruisers necessary to en- force the provisions of the ntodus rirendi of 18JI2. Exhibit 89, The President of the United States, actiu"- throuuh 23- Ex- the Secretary of the Navy, issued to tlie commanding hibits 262. officer of tlu uaval force in lierin^ Sea instnictions for tlie enforcement of the terms of the modus of 1892. Parajjiraph 2 of tlie instructions reads: Any vessel found to be or to have been employed in sealing within the prohibited waters of Bering Sea, whether with or without warning, and any venscl found therein, whether u-arneil or not, having on board impleinentsfor taking seals or seal skins or bodies of seals, tcill be seized. Exhibits, At the time of the seizure of the Oscar and Hattie, 227,iineii. y]jj3 |j.,j ^^^ hoard sliootiug' imjdements and seal skins, and she was in Bering- Sea. (J. When you were seized in Gotzleb Harbor you had all i your sealing eciuipnient on board, hadn't you — your guns and all the necessary appliances for sealing — on board of the] vessel ? A. On board the schooner? - _ Q. On board the schooner. A. They were tliere, sure. Q. And you had certain seal skins on board J A. Yes, sir; but they were not caught in the Bering Sea. j Parafi'raph 3 of tlie modus rirendi of 18!)2, which is (pioted above, ])rovides that every vessel otiendiufij against the ])rohil)ition of .sealing- in the waters of Ber- ing- Sea, slumld be seized and detained by the officer of either Government. The construction placed upon I article 3 by both Governments has been shown by the extracts from the Seal-fishery Act of 1891 and the instructions issued in accordance with the orders of the President of the United States. That construe- THE OSCAR AND HATTIE. 479 jtion was that it' a Britisli ship .should be found witliiii IJcn'ilig' Sea having- on board thereof fishing- or shooting- implements, or seal skins, or bodies of seals, it should Hie on the owner or master of such ship to prove that Itlie ship was not used or emj^loyed in contravention iof the Convention; and any vessel found havino- on hoard implements for taking- seal or seal skins, or jhodies of seals, was to be seized. The cai)tain of the United States revenue cutter }[()hican, finding- the Oscar and Hatfie within the waters from which she was excluded by the Conven- tion, having on board im])lements for taking seals, |\vhich constituted reasonable cause for seizure as pro- hided in the instructions issued by the Secretary of jtlie N'avy, and by the Seal-fishery Act of 181)1, and^^l^lji^its, lici ng- on board also bodies t)f seals, which placed |itu e owner of the ship the 0)uis of proving that the ship was not used in contravention of the modus, as [iiovided in the Seal-fishery Act of 18!) 1, seized the iM'hooner on the 30th of August, and on the 1st day ^' .^./," ^'jj^^ of Se])tember took the Aessel in tow to Unalaska, Jio.l'O; Kx- licaching there on the otli of Se])tend)er. linear:.""'' Commander Evans, of the Yorldowu, was in the Exhibits, harbor o+" TJnalaska. 222,iine54. (J. Yea, and what did the Yorktown commander — what did he do? A. He told me to stop over until the Melpomene came along and he would turn me over to the Melpomene. (}. That is Her Majesty's ship? A. Yes, sir; that is Her Majesty's shii). (}. Well, in about ten days you tvere ordered by 6Vfj>f«m Exhibits, Parr, of the Melpomene, to proceed to Victo' >a? 223, line 14. A. Yen, sir. (). After leaving Captain Parr on the Melpomene, you pro- K x hihits, let'ded to Victoria under his orders, did you not? 223,line54. A. Yes, sir. (}. And reported there to the admiral at Esquimault Hiu-bor? A. I reported to the collector of customs, (J. And your ship was then taken in charged A. Yes, sir. 480 THE OSCAR AND HATTIE. Q. At any rate, you left her with the collector of customs? A. I left her with the collector of customs, with a ■watch- man on board of her. The captain of the Jloli'iain, in accordance witli parat vlvendi of 1S1)2, seized the Oscar and Hnftie, and, as shown b}' tlie testinionv, took tlie vessel to Unalaska, and thereafter Com- mander Evans, of the Yoi hfoiof, dcVixc^red her to Cap- tain Parr, of Her Majesty's navy, connnanding the 3I('Jpoi)H'iic\ and representing- in liering Sea " tlie authorities of tlie nation to which she belonged, who ah)ne had jurisdiction to try the offense and impose the penalties for the same." The authorities of Great Britain delivered the ves- sel to the nearest British court to be tried. That court was the Kxchecpier Court of Canada, British Coluni- * l)ia aibniralty district, and thereafter the Oscar ami Hatt'ie was regularly tried and condemned and for- feitech Ex^ No 85, The judgment of Sir Matthew liaillie Begl)ie, of the Exuibits •' ~ t ~ 241. 'Excliecpier (*ourt of Caiuuhi, is ]n'inted in full. The judgment found not only that there was reasonable cause tor the seizure made liy the captain of the United States revenue-cutter MoJiicait, but found the Oscar and Ilatfi'' f/iiiHi/ oi' acts in contravention of the mo(hifi r'ircudi of I.S92. Exh ibits, All a])peal was taken to the Supreme Court of Can- ExLibit8,ada, and thereafter the case came on to be heard in 248, line 10. ^1,. J 1^ court, aiid the judgment of the lower court was set aside and reversed. Exhibits, In the oiiinion of the Supreme Court of Canada, reversing the lower court, it was stated that sufficient prima facie oroof of guilt of the Oscar and Hattie was undoulitedly afforded by the fact that the ship was found within the boundaries of prohibited waters, with shooting implements and seal skins onboard, and that the onus was cast ujion the owners to remove the presuinjition, but that the evidence given in the court 253, line 3. THE OSCAR AND HATTIE. 481 Bctor of customs? lis, with a watch- Tordance with SJ)2, seized the tlie testimony, lereafter Coin- red her to Cap- aiinianding the •ing" Sea '' the belong-ed, who ise and impose ivered the ves- 1 hI That eonrt British Cohim- 1 the Oscar amU nmed and for- e Regbie, of the din full The wiia reasonaljk^ captain of the , but found the) •avention of thej e Court of Can- 1 to be heard inl ower court was! >urt of Canada,] d that sufficientj • and Hattie wasi it the sliip wasj •hibited waters, I lis on board, andl s to remove the! ven in the courtl below had establislied tliat tlie vessel conunitted no act in violation of the convention of 1.S!I2 or inviidution of lier Majesty's order in council pursuant to the lierin^j: Sea fishery act of 1891. The Oscar anil Ihiftlc had been sold and the owners claim to have suffered a loss as the result l, and in the instructions of the (lovernment of the United States !(► her cutters in Heriiin' Sea, was a reasonable and, moreover, tlu^ controllin seize ships of both nations. Tlie cutter of the United States acted uj)oii the "rounds dechired to l)e reasonaljle h\ (ireat Hrit- ain, and a citizen owin<«' allegiance to Her Majesty's Government can not recover es from the United States. The final clause of article 3 of the modus vivendi provides: The witnesses and proofs necessary to establish the ottense shall also be sent with them. Captain Parr, representing in the waters of the Bering Sea the sovereign power of Great Hritain, wjis in possession of all the proofs and in (u>mmunication with all the witnesses who were assembled in the harbor at Unalaska, and had he not decided to order the Oscar and Hattie to Victoria, the vessel would have been released. The cruiser of the United States had no further control or power over the vessel after her surrender to the authorities of the nation " liavhig jurisdiction to trj- the offense and impose the penal- ties," and without the decision of the commander of Her Majesty's fleet in Bering Sea, the Oscar and Hattie would not have been condemned and forfeited. The commanding oflicer of the Melpomene having ordered the schooner to Victoria for trial, the owners, who are citizens of Great Britain, can not recover damages from the United States arising by reason of his act. The courts of Great Britain found that there ex- isted reasonable cause for the seizure and the lower court found that there existed adequate cause for her condemnation and forfeiture. The higher court re- versed the finding of the trial court only upon the question of the existence of adequate cause for con- demnation. Reasonable cause for the seizure being' established, the United States are not liable for the loss to the .ships of both tes {Kited upon b^' Great l^rit- ier Majesty's [)iu the United modus Vivendi blish the ott'ense waters of tlie it liritain, was oiiHniinicatiou (inbled in the •ided to order vessel would United States le vessel after ition "having )se the penal- 3oniraander of he Oscar and and forfeited. omene having il, the owners, 1 not recover • by reason of hat there ex- nd the lower cause for her her court re- nly upon tlie luse for con- s' established, B loss to the THE OSCAR AND HATTIE. claimants. This is the law as unifonidy held, and althouf»ii it may work hardship in individual cases, the decisions of courts have established it as the rule of law most universally just. The decision of international tribunals and of the courts of both countries wherein tliis rule of law has been declared, have been cited and connuented upon in another part of this argument. 483 III K.,ir>0!t.,liiii 40. the w^inifrbd. Claim Xo. 24. 'riu' II h/'i/ml \\i\s sci/cd on tlic -JOrli otMiily, IS'.I-J, in Hcrinu' Soi, tor n \ioljitinn ot" the modus rirciidi of 1.S!I2. Tlic coniniandcr of the I'nitiMl Stfitcs rcvcniu'-cut- tor Hichiiid lliisli inion that <\i\\ made tliis cntrv in tlie l<»«i': At S.IT) stoppi'd and Uoardcd .scIiooirt 'vV/H/'/Vtv?, of Vic- toria, G. M. (), HiMiseii maater. Foniid lier with firmr dead unskintied fur seals on deck, six otliers salted, and one taken later f'roni the Wini/i'C(Vs boats, all of which fur seals the captain admitted had been taken in Herinjj Sea. The evidence of violation of the convention between the United States and (heat IJritain being complete, seized the vessel and i)laced a i)rize crew of four men, under charge of Lieu- tenant Dodge, on board, and began towing her to Unalaska at 11.15 p. m, l\n'snant to tlio Convt'iition l)et\voou tlie United States of America and (iieat liritain for the renewal of the modus rirrjidi of l.Sill for the year 1S92, the Wfiiifird was towed to Tnalaska and "handed over as soon as j)ra('tical)le to the anthorities of tlie nation to which .slie l)eh)n<»ed," for tlie |)urpose of having- the crew tried and tlie vessel condennied. R.^^1510, line Under date of Jnly 27, ('ai)tain Coulson, connnand- inji" the RiclKtrd liusli, made this entry in his log-: At 10 a. m. United States steamer Yorkfoirn arrived iu port. Commanding ofticer paid otticial call on Commander Evans. Later Commander Evans and Captain Parr, Royal Jfavy, came on board and conferred with commanding ofticer as to disposition of seized schooner Winifred. 484 '1 THK WINIFRED. 485 -Inly, isii-j, IS rirrm/i of <'\('lUU'-('Ut- his (Miti'v in li/red, of Vic- itli four doatl tod, and one lii(Oi t'ur seals lift' Sea. The II the United ed the vessel arge of Lieu- to Unalaska the United lie renewal r 1S92, the jnuled over tlie nation having the , connnand- hi.s h)^: rived iu port, vnder Evans. Royal l!favy, : officer as to Tills entry shows that prior to the 27th day of July Captain (Joulson had arrived at Unalaska with tlie W'nifjml in tow. (/aptain (Joulson testified that "Captain Parr,of the h., ir>ii, Hue Koyal Navy, known as the senior ofticer of Her '^' JMajestv's fleet in the HeriimSea waters in connection with the moiJus i-'n:citt/i, and Capt. Hoblev D. Evans, of the United States Xav^', and the coniniandin<'' otfi- cer of the Vorhfoirn, also the senior otlicer of the American fleet, and Cajitain Coulson, of the revenue cutter ///<.vA," were together in conference on the27tli of Julv. As the result of that ('onference Cajitain (Niulson advised the Secretary of the Treasury at Washing- ton as follows: On July 27 Coinmander Evans, I'nited States Navy, and H., ir)i5. Cajft. A. H. Chase I'arr, Royal Nary, commanding HirMajesty^s naval force in Bering tiea, met by appointment on board the Rusk, and after a full discussion of the matter it iras agreed on the part of Captain I'arr that his Corernment u-ould icaive the right of custody of the .seized vessel until she had been tried by the United States courts for violation of the United States revenue laws, provided that in case of failure to con- vict her on those cliarges the vessel, her cargo, outtits, etc., and master and crew, were to be turned over to the repre- sentatives of Her Majesty the Queen of Englaijd, at Vic- toria, British Columbia, for trial on the charge of violation of the terms of the existing modns rivendi. Acting under instructions received from Commander Evans, United States Navy, I have therefore made formal seizure of tlie Winifred, and arrested her mastci", (x. M. (). Hansen, and crew, for violation of the United States revenue laws, as above cited, and as soon as the necessary papers can be procured, she will be delivered into the custody of Licutenant-Coniniaiider Tanner, of the United States Navy, couiiiianding U. S, «toa!J)er AlhatmsN, for delivery into the Lands of the United States dii^trict attorney at Sitka. This letter disclos(\s that suhse({uent to the time of the sei/Aii'eoi" the W'ni'ifrcd in Bering Sea, on the 20th of July, at which time she was seized, as stated in the log of the Rush, for violation of the Convention be- tween the United States and Great Britain, Captain I 480 THK WINIFRED. (.S)uls()ii liiul received intoi'iniitioii tlint the W'iiii/rnl had violated the revenue laws <>{' the Tiiited States K., 1518, line 2H. K., 151K, line 1. K., mis, line 4. of America. R., 1532, line 62. R., 1511, line 44. Exhibit 111, (t.B., claim 24; Exhib- its, p. 327. Exhibits, p. 332. riiis intonnatioii Captain (-onlson dif July Ca})tain Coulson entered in his lofi': By direction of Commander Evans, the vessel was formally declared seized for violation of the revenne laws. Hiereafter the Winifred was taken to Sitka by the Albatross, where she, with her boats, tackle, apparel, furniture, and car<>(>, was libeled for a violation of the revenue laws of the Uniteursuant to which the testi- mony of (.harles Sprinji, the owner of the vessel, was taken in his own Ix'half. On the 1st of March, 1 S94, the case came on to be heard in open court, on the j)leaats, tackh;, apparel, furniture, and carj^o, and all property foun«l upon or appertainin*;' to said vessel be, and the same are hereby, condennied as forfeited to the United States." On tlie '■J ith of April, 1S;>4, the court decreed that the Winifred, her boats, tackle, apparel, fiu'niture, and carji^o should be sold after the usual notice. Tn accordance with the decree of the court the Winifred was scdd and became a total loss to the owner. Charles Sprin<>-, the owner, never tiled a claim for appeal or jjerfected an appeal after havin<^ submitted tt) the jurisdiction of the court and having' defended the case on its merits. The Government of the United States claims that it is not liable for the loss to the owner of the Wini- fred. The vessel was seized in Bering- Sea for a vio- lation of the modus viveudij and (►fl'ered, in accordance with the terms of the modus, to the authorities of the nation having jurisdiction to try the offense and imi)08e the penalties. Cai)tain Parr, of Her Majesty's Navy, representing the authority of Her Majesty in the waters of ]3ering Sea, and the sovereign power of Great Britain, ordered tliat the Winifred should be released from trial for a violation of the Convention betw^een the two Govern- ments, and agreed that she should be re-seized by the United States and jn'oceeded against for a violation of its revenue laws. In the Argument liled on behalf of Great Britain is the assertion: tJnder said modus it was incumbent on the United States Kxliil)it8, 3(i4. IvvliibitH, :j«5. p. p- Kxliibits, Kx'iiliitH, mi. p. P' Exhibits, p. 370. Exhibits, p. 111. Arg. on be- half of G. B., p. 177, line 31. 488 THE WINIFRED. British Arg. p. 178. to forthwith deliver the vessel to the British authorities, and Commander Parr had no authority whatever to give the alleged consent, and thereby waive any delivery of the vessel to the British authorities. Tlie Govenniieiit of tlie United States contends tliat tlie delivery of the Winifred to Commander Parr was a delivery "to tlie anthoritiesof tlie nation alone havinjj- jurisdiction," and that Commander Parr, rep- re. enting- as he did the sovereign power of Great Britain, presumptively had authority to consent to a waiver of the rights of Great Britain, and that his consent is binding upon and estojis that nati the letter of Mr. (iresham and prior to the date of the treaty mider which this High Commission convenes, states the jiosition of the I nite2. The seizure was made about 15 miles from Annalc Island. After being towed to TJnalaska, information was furnished by Capt. C. L. Hooper, commanding the revenue steamer (J(n-inii, to the efl'ect that the Winifred was liable to seizure and her master and crew to arrest for violation of the Fnited States revenue laws, previous to entering the Bering Sea. 40. THE WTNIFKED. 489 Upon consultation between Commander Evans, U. S. N., and Captain Parr, of Her Majesty's Navy, the latter waived his Government's right of custody until she could be tried for violation of the United States revenue laws. By direction of Commander Evans, the Winifred was formally seized for violation of the United States revenue laws and taken to Sitka by the Alhatrosx. She was subse- quently condemned by the United States court at Sitka and sold, and the money has been turned into the Treasury. EespectfuUy, yours, W. E. Curtis, Se<,ietary. The United States deny all liability f*.r dania<>es sustained by the owner of the Wui'ifrcd, but the schedule attached to the claim in the Arj^uinent con- tains home items, reference to which will be made. The seal skins charged for were all taken in viola- tion of the law of the nation to which the owner of the Whiifred owed allegiance, and to award any sum for a catch of seals made contrary to the laws of both countries would b(? against })ublic i)olic}'. This rule of law seems to have been partially regarded, for no claim for a prospective catch which woidd have been taken in violation of the Con-vention of 1 .S!)2 between the United States and (Ireat Britain is made. The value of this Aessel of 13 tons is placed at 82, 000. She was built in 1ver, ])ersonal claims, not included iu the Ccmvention. i tee wanderer. Claim No. 25. Tins claim is submitted muler the terms of the iifth paragTai)h of the convention creating this High Com- mission. The Government of the United States, animated hy a sense of justice and by a desire that all liability should be definitely and fidly settled and determined, and all possible claims and causes of complaint or wrongdoing removed, was willing that all claims which the peojde of Her Majesty's Government be- lieved themselves to have suffered by reason of the acts of the Goverimient of the United States in assert- ing her supposed rights in Bering Sea should he investigated, and full redress afforded by this High Par. 5, coil- Conuuissiou, and consented to the submission of these Feb. H, additional claims set out byname in ])aragraph 5 of isoti. f]jg ccmvention of February, 18136, although not ad- mitting any liability. The claimants availed themselves of the oppor- tunity afforded for the submission of their alleged grievance and produced witnesses to inform the High Connnission of the ground of their complaint. The United States, for the first time inf«)rmed of the nature of this claitn, insist that the testimony clearly shows that the claimants suffered no damages arising from any act or omission on the part of any officer in their service, or on the })art of any agent clothed with their authority. The Waitdcrcr, as claimed by the master and owner ^io!"^^' ^'"''ot the vessel, had l)een sealing in the spring of 18S9 on the west coast of Vancouver Island. 480 In idii )roci nitil iiile! ir()C( Ci liter A. rere A. nan ( [Ot S( heir leing A. roul( rliat A. (h <}. r 121 A. A. Q. A. let/ I <>• A. Q. A. A. Tl iritii ernis of the fifth tliis High Com- es, auiniated by lint all liability iiicl deterniiued, of coinplaint or that all clainis jroveniment be- ly reason of the States in assert- Sea should be d by this Hi<>h mission of these [ ])aragraph 5 of Ithoii^h not ad- ^ of the oppor- if their alleoed nforiu the High Dniplaint. me inf«)rmed of :, the testimony red no damaoes rhe part of any ft of any agent iister and owner spring of 18Sy d. THE WANDEREK. 491 liue In the early part of May, after luiving engaged an ndian erew for sealing in Bering Sea, the vessel )roceeded up the west coast of Vancouver Island '^•'i'"^^'^' ^^ mtil off Cape Scott, a distance of nearly 1, ()()() uiles from Bering Sea, when the Indians refused to iroceed further on the iournev toward Beriii"- Sea. Ca])tain Paxton, (piestioned as to the reason for the iiterruption of the voyage, testified : (^. What was the occasion of their going back on you? K-. 1537, line A. They heard from another vessel that the Americans ^^' rore threatening to make seizures, and they refused to go. (}. What reason did they then assign to yon for refusing go? A. All they wanted to know was whether I was a rich nan or a poor man ; if I had lots of money to pay them if I !ot seized. I told them no. They then refused to go. (f. Was there any reference made by them to the fact of ^^•.^^^''^^' '*"'' heir having been in Bering Sea before and after (having) leing seized? A. Yes. They said they had suffered great hardships and rould not go again unless I would guarantee their pay for rliat skins they might have when the vessel got seized. Q. What did yon do then? , . . il., L537, line A. Went back to Victoria. ( )n cross-examination Captain Paxton testified : <)• You say these Indians threatened you about the l)th K-_i''3S, line rl2thofMay! '"• A. Yes; something like that. (^ And they were afraid they would not get their pay? A . Yes, sir. (i>. For the skins they actually took ? A. Yes; that is, if the vessel was seized, and I donH thinJc wfi fcoiiUI either. (), They asked you if you were a rich man or a poor man? K., 1588, line A. Yes. •*•^• (). If you had been a rich man they ivould have gonel A. Yes. 'i). And because you told them you were a poor man they niild not /f/ you continue to go to Bering Seat A. JS'o, sir; ice had to turn bach Q. Whyf A. Becatixe the Indians re/used to go. Q. Will you say what was the occasiou of their refusing go to Bering Sea? A. The Indiaus were scared to go; they were scared seizure. Some of them, I believe, had been seized before, a) they had been talking with other Indians while they were aic^ from the vessel out hunting, anil they n-ere scared of the .'ess being seised, and as they knew that Captain I'axtonhad nothii but the vessel they were afraid they tconld get no pay if tk tcere seized. E.,_ir.4i, Hue Q. >sow, ott" Cape Scott, on the occasion in question, wbi ^"- was the conversation ? » A. Well, they a'ere seared, as some of them had been seizi before. They were scared to go into the Bering Sea with Capta l'a.vton. They kneic that he had nothing but his vessel, ai they were scared that if the vessel was seized and he lost h they would get no pay for the season'' s work. R., 1542, line Q, ^y^ig there any other reason assigned for their refusing ^" go to Bering Sea. A. Xo, sir; not that I know of. On cross-exaniiiiiition this witness; testified as fo lows: R., 1544, line Q. Did anyone on the ^'fl^^p/nVr tell your Indians that tliei ■^^- were going to be seizures in Bering Sea? A. / do not knoa- where the Indians heard that there in going to be seizures in llering Sea. The frst time they spo, ((bout it was at sea. Q. Bid you know where they heard it ." A. They heard if in their canoes irhile they were out huiitiii R., 1544, line Q. Captaui Paxton himself did not want to turn aroiv 38. because he was afraid of seizure? A. Captain Paxton, f fancy, wanted to go to the Beriug Si if he eould get his Indians to go. Q. And it was because the Indians did not wish to (jo iri him that he could not go:' A. Yes; th<(t ir 1544, lint) (^, Confine yourself to the one time, and tell us \vhattb» said then. A. The Indians said that suppose they went to Bciiii Sea ami the vessel was seized; they knew that Capta ixtc ft t ere line, In ■CM itio rh >1R'| low li'l ;i|iti a.k ■ th IIIM' (m1 is ival'i iiii_\ ;ir*i r t •sse If I inns itlr Th tlioi till 111 \ (lilt Vtd' l\il< iTe riot ion. Th iliH* i' U ctt THE WANDERER. 493 the vetssel at tlj I of tlieir refusing I in in question, wbs i;- testified as fu Indians that tbei juxton liatl no money, only the vessel, and they could not let their pay; they would lose tlieir sununer's work. They |i're talking nbout their wtnnen and little ones starving at nine, and all that kind of thing. Ill tlie pleading's iilinl in tins chiini on belnilt" of treat Britain before this IIii>li (Nuiunission, the alle- litioii is made that information of the jn'oclamation If tlie Presi(h'nt of tlie Tinted States of America, Vued on the 21 st ;- states that the panic of the Indians occurre about the !>th or 12th of May. It is certain that tli R.g^i833, line yfaudcirr was in the port of Victoria May 23, 1X8! for uj)on that day a charter party was made. Tli publication of the proclamation of the President afte the date of the mutiny of iJie Indians, and instnic tions given to the captain of a cutter in the servic of the United States after the date of the refusal ( the Indians to j)roceed to Bering Sea, will assureJl not be advanced as the cause of the interruption ( the voyage of this vessel. The findings of fact of the Tribunal of Arbitratioi at Paris, discloses that the nature oi the warnings giv to the various vessels, whose claims are schedule between pages 1 and GO, was an actual notice give by an officer of one of the cutters in the service of tli Award of the Government of the United States, and "that the sal o/Arbitia- Several searches and seizures of vessels were made 1) tio" •'""-public armed vessels of the United States, the con under themaiiders of which had, at the several times when the tj'®,**^\ooo^were made, from the executive dei)artment of the Go ernment ot the united States, instructions. There is no evidence of any actual notice given or any seizure of the Wandevcr. When the Government of the Ignited States coi] sented to the submission of this claim to this HiJ (Commission, it was undoubtedly re})resented b}' til am])assador negotiating the Convention on the pal of Her Majesty that the testimony of the claiinaiij would develo]) the fact that some actual warning the nature found by the Paris Tribunal of Arbitd tiou to have been given to certain other vessels w^ THE WANDERER. 41)5 . ►^liepard, ('t»ni| ter Hush. 'V\\\\ •iven to the ('(»iiil h was to i)ati(l bears date ^hv tain of the Waul Iiuliaiis oeciurei s certain that th| ia May 23, IS-Sl was made. I'lil le President aftel aus, and iustnu ter ill the servic of the refusal ( ea, will assureJli le interruption d [lal of Arbitratioij he warniiij>s oivej ns are sehedulel .'tual notice fiivel the service of tl( ind "that the siii| ^Gls were made h . States, the ('on| 1 times when thtj tmentof thedcH ructions." lal notice given 'iiited States col aim to this Hi} jpreseiited by ntion on the paj y of the daimaii actual warning" ibuiial of Arbitii other vessels w •iiven by an officer in the service of the I'liited States (iovernmeiit, or by someone acting- under the author- ity (►f the said (xovernmeiit, to the WaiKhrrr. The testimony of the claimants has been taken, and it is {ippareiit that the ambassador of Her Majesty was misinformed by the parties in interest as to the nature iof this claim. '^riiat no damages can be awarded for the interrup- jtion of a voyage, the sole reason for which was that I some uncivilized Indians aboard the vessel had re- ceived from other uncivilized Indians some diapha- Inous rumor that there were seizures being made in iKering Sea, is beyond (piestion. The captain of the Wainh'rcr landed the Indians jwho had refused to iiroceed with him, and concluding jtliat it was too late t<> pick up a crew on the west K' \^'3'^- ^'"® jcoast of Vancouver Island, made no attempt to secure k., I'sso, Hue lanother crew, but proceeded to Victoria. „"V... .. H ,',',,, i- 1 -x R-' l-'^^' line e made no attemiit to secure a crew ot white 6. hunters, and gives as the reason for his failure to do |s(» the fact that "A poor man could not afford to em- Iploy them." The rule of law is well settled that a claim for Idamages can not be based solely upon the fact that Itlie ])eculiar financial conditions of the individual jcomplaining were the cause of the injury. If Cap- jtiiin Paxton had been in a financial condition tt) joperate his business he would have had no trouble |\vith his Indian crew and there would be no claim before this High Commission. The Argument on behalf of Great Britain makes no Ircference to the earniuQs of this vessel under the i^j i**33, line lajireement, in pursuance of which the vessel pro- Icceded to Shumagin Island at the entrance to Bering 5('a, subsequent to the time of the refusal of the Indians to continue the voyage, and brought down in Victoria a (piantity of skins, for which service the h'ssel received payment. On the contrary, the claim 49fi THE WANDERER. R., 1900, 13. R.. 1538, 10. R., l.")36. is made tor tlie value <^f' tlie use of the Wandcrvt- line,|m.jjj„. iin, eutire season of IHS'I, altliou'>"}i she h'ft Victoria for a vovaye to 8hiinia\ii'erateth (tr 2')th of Auj^-ust. A claim is made in the schedule attached to tlic statement of the dama<>'es suffered hy the owners of this vess(d in the ar^^ument on behalf of ( Jreat Britain for "lejial and other ex])enses, ^^^oO," and "time and expenses of owner, 8200." There is n(> testimony inthe Uecordto su])port either (daim, and no reference is made to any testimony. 'i'lu' Wdiidcn'r was not outfitted for a voyag-e to Berin<4- Sea, and suffered no loss on account of expend- itures for supplies. Her (diarter value wc^uld be determined on a differ- ent basis than that made use of in estimatino- the (diarter value of a vessel completely outfitted for a sealinj^' voyag-e. The (Government of the United States contends that no loss accrued to the schooner Wanderer or her owners as discdosed by the testimony for which it is chargeable, and that no sum should be awarded the claimants. Robert Lansing. ' • Charles B. Warren. liii Don M. Dickinson. the JFandcn'r liou^'h she left iuid (»u tlio 23(1 is not r(}fenv(l dr vnhie f>t" this )ii t(» tht' wji^^cs ('(nnj)aiv favor- aim of sl8,44T h (h)y of July. , to tlie '-Mith (»• ittachod to tlie r the owners of »f (ireat Britain ' and "time and osu))|)ort either y testimony, tor a vovaji-e \o onnt ot expend- :ne(l on a differ- estimutinji' the • 7 The Onwaud 364 The Favourite 3(59 The Black Diamond (1880) 37.'» The VV. P. Saywabd 382 The Anna Beck 388 The Alfred Adams 392 The Grace and the Dolphin 395 The Ada 402 The Triumph (1887) 4()8 The Juanita 414 The Pathfinder (1889) 418 The JiLACK Diamond (1889) and the Lily 423 The Minnie 437 The Triumph (1889) 442 The Ariel 447 The Kate , . 467 The Pathfinder (1890) 402 The Henrietta 466 The Oscau and Hattie 477 The Winifred 484 The Wanderer 490 PlIRO. .{19 837 3r.7 364 3«i9 37r> 383 388 392 395 402 408 414 418 423 437 442 447 457 462 466 477 484 490