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Les diagrammes suivants illustrent la mAthode. 1 2 3 1 2 3 4 5 6 UiminXi; SKA CLAIMS Od.MMISSlOX AiJ(;i)MK\'r i>N iiKiiAi.r or (JIM^A^^ innTAlN Cfl..^" ' M"'f 4 I I TAIiLE OV CONTENTS. lUTnOhfCTOUV 3 Assertion of Jurisdiction hy I'nitt'il States 3 Fir'^t .S<'i/iir.'s, I SSIJ 3 Unitcil Stall's Sl.itiitps 3 Iiiti'rfcri'ncc ntlii-r than Sci/urc, 1880 4 Heport of Sc-iziti;; < >llifrr 4 J)i|iloiMalic (.'(l 8 IVotcsis ajfainst renowed Hoi/.ures 9 Coiidenination of Vessels 9 Seizure discontinued in 1888 9 The Seizures of 188',> 9 The " Rithlindnr" Seizure in Neah Hay, 1800 10 Protests a^'ainst continued Seizures 10 Shiftin;.' |iosilions of l'iiite," Claiiii No. 4 Paok. 79 H3 1*6 »9 89 97 103 106 rii.i " l!la.-k Diamond," Claim No. .0 ,qj, TIh- " W. I'. .Say wan], ■ Claim No. 6 ,,[ ] The " Anna |{,.(;k," t'laiiri No. 7 Thc " Allivtl Adams," ( 'jaim No. 8 J jjj Tho "(inuv •■ anil " Dolphin," Claiiiw N,,,. 'J and 10. H The " Ada," Claim No. 11 Tho " Triumph, " Claim No. 12 Thi' ".luanita," Claim No. 1.'} Tho " I'atlilindcr," Claim No. 14 ......'. The " HIack Kiamond, " Claim No, 10 Tho " Lily," Claim No. IG ][ The " .Minnif, ' (.'laim No. 17 Tho " Triumph," Claim No. l,v The " Ariel," Claim No. I'J Tho " Kato," Claim No. 20 Tho •' Path(ind..r," Claim No. 21 The " ll.-nrictla," Claim No. 22 Tho "Osoir and llattic," Claim No. 2.'t Till- " Winnit'rcd," Claim No. 2i The " Wanderer," Claim No. 2") The Csts in tho "Sayward " Case, Claim No. 20. . ..[ 1^4 Heeapitulation CoNCI.L-.sl()\ 10 112 9 124 I.JO l.'J.J 1.3.-) i;{7 140 142 146 149 l.-)2 l.')4 16(> lor, 172 181 1H7 188 AXM-.xr.s. Annex 1.^ The »«»/„. rnr»-/; of 1891 ,on do 2.-The Tr,.aty ,f 1892 [',,['[ j^^ do -i.— Tho inodim vU-enrli oi 189*> .q- do 4.-The Pari.s Awir.l Jl do f)._The Cluim.s Convention .,qJ do r,._The Can.a.lian Aet of Parliament, 1896 .... -"os do 7.— The United States Act of Congress, 1896 ... . 209 I KEY :i^O IlEFEKENCEy. In this Argument the following abbreviations havo been adopted in the marginal references : — American reprint of the proceedings at Paris. Record of evidence taken at Victoria. U.S.K. (.r r.S. H. S, Kx. Oik;., Nil KKl. I,.K. Executive document of the United States Senate' No. 106, 50th Congress, 2nd Session. English Law Reports. I'.K. cif til.' I .s. l>aper8 relating to the Foreign relations of the United States, Vol. 4, for years 1872-1878. y a United States revenue cutter and taken to a I'liited States port in Alaska and stibsc- puiitly libelled upon the charge that they were: " Found engaged in killing fur seals within the limit of Alaska territory and in the waters thereof, in violation of Sccti(m I'.tbti of the Revised Statutes of the United States." which section ■JO reads as follows: — "Sfction 1'.>5G. No person shall kill any otter, mink, H marten, sable, or fur seal, or other fur-bearing animal, within the limits of Alaska territory, or in the waters thereof; and every person guilty thereof sliall, for each ottence, lie tinetl not less than S200 nor more than 81,00(1, or imprisoned not more than six months, or both ; and all vessels, their tackle, apparel, furniture, and cargo, found engaged in vii)lation of this section shall be forfeited; hut the Secretary of the Treasury shall have power to authorize the killing of such mink, marten, •"-0 sable or other fur-bearing animal, except fur seals, under such regulations as he may prescribe; audit shall be the duty of the Secretary to prevent the killing of any fur seal, and to provide for the execution of the provisions ot this section until it is otherwise provided by law ; nor shall he grant any special privileges under tins section." Tlie.-e vessels were all condemnetl, and their masters and mates lined and imprisoned. S. li,. ^..l fin^i <,l ;ini| I'.'J. INTRODl'CTOBV. In addition totlioxc Hei/.uroB two ollior ItritiKli hcIiodiutk tho " l''uv(irit(! " ami ' BlaiU Diiiiiioini " wcro warned i>_v tlic Uiiitod Btato« uuthoriticH ?u)t to iiurniiftliccaptiiro itt hcmiIk in lU-liring Sou und tiioir voyages were thori'liy l>rolten up. Tlio caid 8»'i/.uroH were nm<.'" in purHuan ,0 of oiiiorn irtsiicd from till' United Sffttc«TrfaHnr\ l>i|iurtnieiu totliueomnianding ylRcefH of tlieir roveiuio eiitters >!v?ta;!":l lorxerviee in Koliring Sen in tlie spring of tlio year I88tj, part of wliicli iriHtructionH were as follows : — "To t'liforco tho law eontained in the proviBioim of wpc- 10 tion 1 !*">♦') of the U.S. U.S. and tor^i'izeall vesKeln and arrest and deliver to tho jiroper niithoritien any or all persons whom you may detect violating the law referred to." It now appears that information as to the fact of the seizu- res was received Ity tlie Secretary of the Treasury at Wn»v longitmlf iiihI lii'itmU) wlicro llic Hoiziires liitd iii'i'ti iiimlo, the lull I'iniiiiinfaiicus of tlic Hci/.uron, the iiimu's ot'llic iiiiistiTs iititl mates iirroHted, uiitl viimntTutiii^ tlie variolic urficii'i* taken. 10 On till -J"!!! St'|iti'inlior, IHSfl, tin- IJiitish AmbasHador at H. '>i. Wasliiiigtoii addrcj^HC'l a note to tlio United States Secretary of State, urtkiiiif to In- l'iirnin)i'"l with any particnlar« whie!i the United States jfoverninciit had relative to the soizuros. This letter reniaininir iiiianHWorod, on t)io 'Jlst October, IH8(J, tlie Hrifir'h Ainhii-isador wrote to the United States Secretary n\' States, that lie was without reply to his loiter of the 27th s. ; 'niher, and that ho was instructed by his Qovern- nieiit to pro'c t atrninst the seizures and to reserve all rights to cDinpeii at.on. 20 O J 14thauy of Xnvomber, 1886, the British Anib«nHador delivered at the olHco of the Secretary of State, WashingttHi, a copy of the ii.,[iortant letter hearing date 30th October, 1886, li. p. :, from the Hiitish Foreign Minister. This letter contained an accurate report of the proceedings against the vessels whidi had i'. h been condenineil at Sitka on tiie 'iOth August, together with depositions olOtlicers and luiii engaged upon the vessels seized by the Unitetl States cutter on the l.st August. On the 12th November, 1886, the United States Secretary of State wrote to the British Ambassador : :J0 " The delay in my reply to your letters of September 27, u. ■■7. and October 21, asking for the information in my possession concerning the seizure liy the United States revenue-cutter Conciii, in the Behring Sea, of British vessels, for an alleged violation of the laws of the United States in relation to the Alaskan seal lishenes, has been caused by my waiting to receive from the Treasury Department the information you desired. I tender the fact in apology for the delay and as the reascm lor my silence, and repeating what I said verbally to you in our conversation this morning, I am still waiting full and 40 authentic reports of the judicial trial and judgment in the cases of the seizures referred to. " My ajiplication to my colleague, the Attorney General, to procure an authentic report of these proceedings was promptly made, anu the delay in furnishing the report i. H. iv.i. I, .-ill. K. -.'1. 1! i'«. I. li r>i. It 111. I. Kl K. liiV U. M Oil tlu> 0th .Tnmiarv, 1S87, the British Ainhassiulor wrot»> to the Unitoil Stati'rt Scorotaiy of State, referring to liis prior letters, anr: — " From week to weidc I luive been awaiting tlie arrival tif tlie impers, and today at my reijuest, the Attorney (Jeneral lias telegrajilied to I'ortiand, Oregon, the nearest telegniph station to Sitka in Alaska, in order to expedite the I'urni.shing ol' the desired papiTs "'* # * * # * * * * * * " The distance of the vessels tVoni any land or the circnmstaiu'es attendant upon their seizure are unknown to me save liy the statements in your last note, and it is essential that such I'aets should he devoid of all iincer- 20 taiiity." On the 1st Kehruary, 188/, the Mritish Amhassa(h>r wrote to the I'liited States Secretary of Slate, inipiiring whether the intormalion asked for had heen received. On the 3ril Kehruary, 1887, the United States Secretary of State replied • — " 1 am informed that the documents in (juestioii had left Sitka on the 2t!tli ot .ramiary, and may he expected to arrive at Port Townsend, in Washington Territory, ahout the 7th instant, so that the papers in the usual course of mail ,S0 should ho received hy me within a fortnight.' On the 4th April, 1887, the British Amhassndor again impiireil from the I'nited States Secretary of Stale as to whe- ther the documents had lieeii received. On the 12th April, 18s7, the I'liited States Secretary of State wrote to the British Andiassador that * * * "the reeoint of the (|ueHtion no svich 20 seizures of Uritish vessels will be made in Behring Sea." On the 26th Jani;ary, 1887, l!ie United States Government being in possession of all the facts caused the following telegram to be sent to tho .ludge and District Attorney at Sitka : — " I am directed by tho Pre8i imliscriminate killing of fur seals is now being considered, and I will inform you at tho earliest day possible what has been decided, so that Mritish and other vessels visiting the waters in (piestion can govern thcmsehes accordingly.' Such instructions were considered and determined upon by the United States Government and communicated by letters i:. III. I,. K. Ill I ' , S. S, lIKt ,' T 8 INTRODUCTORY. of May 10th and May 28tli, 1887, to fho Coiiimiiiiders of the Uiiitetl Status rovemio outtorri ; hut no inforiiiiitioii resiieetiiig them was ever convoyed to the British authorities. These instructions were, suhstantially, the same as those of 1886. Without either warning or notice the United States Govern- ment proceeded, in the months of .Inly and August, 1887, to seize a number of British vessels which were engiiged in sealing operations in BehringSea ; these vessels were the " W. P. Say- ward,'" "Alfred Adams," "Anna IJeck," " J)olphin," "Grace" 10 and "Ada." And the schooners "Triuni|ili" and" Wanderer" were also interfered with and their voyages interrupted. On the 11th August, 18S7, the British Ambassador wrote to the United States Secretary of State : — I! ^1. I. :*<' " I have the honour to inform you that \Uv Majesty's Govern- ment have received a telegrnm from the Commander-in-Chief of Her Majesty's naval forces in the I'acitic, dated Victoria, British Columbia, August 7, reporting the seizure by Ifnited States cruisers of thn'e British Columbia sealing schooners in Behring's Sea, a long distiince from Sitka, and that several 20 other vessels were in sight being towed in. " In conveying this information to you, I am recpiested at same titne by the .Marquis of Salisbury to state that, in view of the assurances given in your note of the 3rd of February last, Her Majesty (Jovernment had assumed that ponding the conclusion of discussions between the two governments on general (piestions involved, no further seizures would be made by order of the United States Government." To which on the 13th of the same month the United States Secretary of State replied : — 30 K. SI, I., i;:.. " The reference to my note to you of the 3rd of February last, which yoti make under the instruction of the Marquis of Salisbury, has caused me to examine the expres- sions contained thert'in, and I can discover no ground what- ever for the assumption by Her .Majest}- Government, that it contained assurances ' that pending tlie conclusion of discus- sions between the two governments on general (piestions involved, no further seizures would be made by order of the United States (Government.' "Until your note of the 11th instant was received, 1 Inid no 40 information of t.ie seizure of the sealing vessels therein referred to, and have no knowledge whatever of the circumstances under which such seizures have been made." " 1 shall at once endeavour to sujijily myself with the infor- mation necessary to enable ini' to rejily to you more fully." "The cases oi' seizure rei'eried to in my note of I'^ebruary 3, ls87, liad occurred during the previous August, and upon the basis of the int'ormai ion then obtained I wrote you as follows : "'In this connection I take occasion to inform you that, '•O without conclusion at this time ol any questions which may be found to be involved in tlu^se cases of seizure, orders have been issued by the President's direction toi' the discontiiuiance of all pending proceedings, the discharge of the vessels referred to, and the release of all persons under arrest in connection tlierewith.' " "Having no reason to anticijiate any other seizures, nothing was said in relation to the possibility ot such an occurence, nor I I 4 INTRODUCTORY. 9 do T fintl in our correspondence on the subject any jyrounds for sucli an understanding as you inform mo hud been assumed to exist by Iler Uritannic Majesty's Government." " A sliort time since, wlien you called upon nio and person- ally obtained copies of the record of the judicial proceeditigs in the three cases of seizure in August last in Uehring Sea, nothing was said in relation to other cases. VVhothor the circumstances attendant upon the cases wliich you now report to me are tlie same as those which induced the Executive to direct the releases referred to, remnins hereafter to be ascer- jO tained, and this with as little delay as the circumstances will permit.'' In a letter to the British Ambassador, dated the 10th Sep- tendier, 1887, a copy wliereof was left with the United States Secretary of State on the 'JSnl of same month, the Marquis of Salisbury fully stated the contention of Great Britain with regard to the ditferent ([uestinns raised, directing the attention of the United States Government, to the position tliat they had previously taken in a similar controversy with tlie Russian 20 Government. On the 12th October, 1887, the Britisli Ambassador wrote to the United States Secretary of State, formally protesting againstthe seizure of the schooners "Grace," "Dolphin" and " AV. P. Say ward," and reserving all rights to compensation on behalf of the owners and crews. On the IfJth October, 1887, the United States Secretary of State wrote to the British Ambassador acknowledging the receipt of the protest against the seizures of the said vessels and stating that the facts would be at once investigated. 30 On the 19th October, 1887, a similar protest was made against the seizure of the schooner "Alfred Adams" "and " againstthe continuation of similar proceedings by the United " States authorities on the higli seas," the receipt of which was acknowledged on the 22nd October. All the vessels seized in 1887, with their tackle, apparel, furniture and cargo, were condemned at the instance of the United States and several of the olHcers were placed and kept under arrest for various periods, and their crews were sub- mitted to considerable hardship. U. s.( r. s. L'. Ill-J S. Ks. Kill. |>. I tor. S. i\ IIHi. p S. IW. im;, |>. .s. y.s. IIM'i, |>. rir. ii..f. .V.I. 40 No seizures were attempted to be made in 1 888 by the United States Government, but no assurance of freedom in sealing having been given, those engaged in that occupation were greatly hampered in their operations. In the year 1880, the United States Government, again pro- ceeded to seize a number of British schooners engaged in seal fishing in Behring Sea, to warn others from the said sea, and by intimidation to prevent a certain other schooner from entering the sea. The names of the vessels seized were : the "Juanita," " Pathlinder," " Black Diamond," "Lily" and °" " Minnie." The vessels warned were : the " Triumph," "Ariel " and "Kate," and the veesel intimidated was the "Wanderer." BS— 2 10 INTRODUCTORY. In that year also, the Pdthfiihlir wan iirreeted in Heliriiig Sea and ordoivd to juocci'd to Sitkn, in.^toad ot which she came to tlic jiort of N'ictoria. In tlio yciir 18iM), the same schooner wliile on a sealing voyage was lying at Xeah Hay, undergoing necessary repairs, when she was hoarded hy an otHcer from the United States (Jovernment cutter 0'''('f'( and soi/.ed on the allegation that she had escajied ai -est ni 1 8^!!'. She was detained for some days and suhseciuently released on instructions from the Department at Washington. r. s., \, ,.. ;t;t:,. r. s., v.. ]>. L'l;:!. Mil. iM,.^ Further jirotest was nuide hy (ircat {Britain with respect to 10 the seizures, and diplomatic correspondence continued. This correspondence disi'loscs the lollowing positions assumed ftt various times hy the authoiitics oftlic I'nited States. {'!} The vessels sei/cd in 18"<(i and 1887 were seized and condemned on the grt)und that I5chriiig Sea was a iiuirr ilidlSUIII. (//) Disavowing this ground, a chiiin was made on 17th Decemher, ISI'O, that the I'nited States had exclusive juris- diction over iOO miles fi'oin the coast line of United States territory in Behring Sen. 20 ('•) Subsecpiently, on the 14th April, 1891, the United States (tovernmeut advanced a now claim that they had a pro- perty in and a right of protection over fur-seals. On the 15th June, 1891, a mnJus v'n-evdi (annex 1) was con- cluded by which it was agiecd that (ireat Ihitaiu should on the one hand prohibit until May, 1892, seal killing in that part of Behring Sea lying eastward of tlie line of demarcation described in thetreaty of 18(i7, between the United States and Russia, and that the United States should on the other liaiid prohibit seal killing for the same period in the same part of 30 Behring Sea, and on the sjiores and islands thereof in excess of a stipulated number. 1'his agreement I'ontained the following clau.se: " Every vessel or person otfending against this prohibition in the said waters of Behring Sea, outside of the ordinary territorial limits of the United States, may be seized and detained by the naval or other duly commissioned otHeers of either of the high contracting parties, but the v shall be handed over as soon as practicable ti> the authorities >,. .he nation to which they respectively belong, who shall akuie have jurisdie- 40 tion to try th(! otfeni-e and imjiose the penalties for th's same. The witnesses and proofs necessary to establish the ofteneo shall also be sent with them." On February the 29th, 1892, as a result of the negotia- tions before mentioned, a Treaty by which the difl'erences be- tween the two (Jovernments were reterred to arbitration was signed. The Article of the Treaty ailecting the (|uestionof com- petisation was section 8 which is a.-< Ibllows : "The high contracting parties having found themselves 50 unable to agree upon a relerence whieli sliall include the "? iNTRODi'irroiiy. 11 question of the liability of oadi for the injuries alleged to have been wustainod by the other, or by its citizens, in connection with the t'lainis |)resentet or longer dehiy the rtubniisaion and (k'terniination of the main (juestions, do agree that either may sidmiit to the arbitrators any quention of fact involved in said claims, and ask for a lind- ing thereon, the iiuestion of the liability of either (iovornnient upon the facts foiiiul to be the sulijeel of further negotiation." '" The terms of reference having been thus agreed to, it became expedient to etfect some temporary arrangement similar to the dkhI'is vivoxli of l>>lil, during the period neces- sary to obtain tlie award of tlie Arbitrators appointed under the Treaty of 18! t2. This was done by the /no'/iis virrmll concluded on the 18th April, 18'.i2, which practically extended the modus rnvendi of IHftl, until the decision of the Arbitrators should be reached. By Article 6, of the Treaty of 18!t2, the main questions 20 of right were dealt with. This Article was as follows: — " In deciding the uuitters submittetl to the arbitrators, it is agreed that the iollowing tive points shall be submitted to them, in order that their award shall embrace a distinct deci- sion upon each of said tive points, to wit : — "1. What exclusive juris lietion in the sea now known as the Heliring Sea, and what exclusive rigliLsin the seal lisheries therein, did Russia assert and exercise prior and up totlio date of the cession of Alaska to the United States? " 2. Ifow tiir were these claims of jurisdiction as to the seal 30 fisheries recognizeil and conceded by (ireat liritain? "3. Was the body of water now known as the Behring Sea included in the phrase ' I'acitie Ocean,' as used in the Treaty of 1825 between Great IJritain and Russia; and what rights, if any, in the Bt'hring Sea. were held and exclusively exer- cised by Russia after the said Treaty? "4. Did n.)t all the rights of Russia as to jurisdiction, and as to tlie seal fisheries in Behring Sea east of the water boundary, in the treaty between the United States and Riis.sia of the 30th March, ISdT, pass iinimiiaired to the United States under that 40 treaty ? " ;■). lias the United States any right, and, if so, what right of [iroteetion and jjropcrty in the fur seals fre(juenting the islands of the United States in Behring Sea when such seals are found outside the ordinary three mile limit?" Upon the questions stated in this article the decision of the Paris tribunal negatived the right to any extra territorial jurisdiction of the United States in Behring Sea. The necessary result of the decision upon these points was that the United States should make full compensation to 50 Great Britain lor all liisses sustained by reason of the illegal interference by the United States with British vessels on the high seas. In pursuance of the terms of section 8 above referred to, Great Britain submitted to the Paris tribunal certain state- ments of fact, which were agreed to by the United States as proved. Among these findings were the following. 12 INTItOni'CI'OUY. " Tho roUowinj; table shows tlio iiuines oftlio liritirth Hcaliiig vessels seized or wiinuMl by I'liited Stulea revenue cruiHers, lS8(l-18f>i», antl the approxitniite tlistaneo from land when seized. The (liBlaiu'fS assigned in the eases of the 'Carocument No. 10(3, pp. 'JO, 30, 40). The distances assigned in the eases of the ' Anna Heek,' ' W. V. Sa.vward,' ' Dolphin,' and ' (Jraee" are on tlie authority of CajUain Sliepard, I'nited States Hcvciiue Marine (Hhie Hook, 10 Uniteil States, Xo. -', 1M1»0, pp. Sti H± See Apiiendi.x, vol. iii)." fllilr.lSlat.K V.S...1 MMkiiin Ciinilcli:) 'rilolllliill niiw.iril . I*';l\iililitc Amiih I'iiik.. \V. r. Savuiiiil Di.ll.liiii .' iif.nr Alfivd Ailllliis. .. Ada TriiMiiiili Aiij.', I, Ml 7'') iiiil<'!< Ciinviii. iln I. >i; 7<' lin ' llll i|.. :;, si; n:. ,i<> . i\« ilo L', Sli Waiiiiil liv I'liiwin ill alMnii saiiii' |Ni>iti<>u as Oiiwanl .Iiil> •-'. s; r.i'.iiiili- KiihIi. 20 •luaiiita ratlitiiiilrr Trininph niack Dl.'i ikI l.ilv Ai-ii-l Km,- Mlnnii' riitlitiii<)i'r llu !l. .»: .V.I .In (111 12. sr 40 iiii ■ III I . ."^T '.Mi llo Aii(f. H', S7 (12 ilii ill. 2.-.. NT l.-i ill I ill! ill! ilu ilii (III lira I'. I, n7 Waiiii'il li- liiisliniit t tir liilii iiidSfa .Iiilv ;«1,.S!I rilinil.s Itusli. ilii 2!*. ."<'.l ."ill ill ilii .1.1 11. Sli ()iil.-r.-.l..iil iif rHlniinrSiiiliyHiisli C'l .\" III I'lsiliiiM » III II waiiiiil. ill. II. Sll :•,.•, mill- ill. All!-'. I'l. ."<'.• Ilii ill! ill. .Iiilv ;tii, s'.i (iiil.iv.l iMit .if IliliriiiK'Sialiv Hush Aii^'. i:i. Sll ,1,1 ,1,1 nli I'.ay t'lirwiii. 30 *Ncali r.ay in in tin' Stat.- nf Wasliihutmi, ami tin' "' ratliliiiil, r " \va«s,i/,iil tlini' nn I'liar^'fs inaili* a^'aiiist Iht in lli lii-iir.' .*^c.'i in tin* |ir,'\itins yi-ar. Sin- v.a-. M'l*';i..,(l iwii (lays lali r. j a "And wlicreastliegovernmont of Iler liritannie Majesty did ask tiio said arhitrators to find the said facts as set forth in the said statcniciit, ainl whereas llie agent and cininsel for tho United States goveniineiit thereupon in our presence informed us that the said statement of facts was sustained by the evidence and t'lat tliey hail agreed with the agent and counsel for Her Britannic .Majesty tiiat we. the arbiirators, if we should think tit so to do might tlnd the said statement of facts to be true. 50 " Now, we, the said arbitrators, do unaniniouly tind tho facts as set forth in the said statement to be true " Tho findings of fact also established that the vessels were libelled in the United States District Court by authority of the United States. That the tines and imprisonment were for alleged breaches of the niiiiiieipal laws of the United States which alleged breaches were committeil in l>chriiig Sea at great distances from land. That the warnings to leave IJeliring Sea or not to enter it were it ado by authority of the United States. INTRODlICTOnY. 18 20 30 40 Wliilrtt, the moduK vivundi 1801 was in lorcio, tlic hi-Iiooiut "Wimiilred" was Hcized in the open watera of Bciiriiig Sea tor an allogt'd liivacli of t!ie moilus Slu! wim fakon to tlie port of Onnaliiska and wiiilst tiicre was rc-airestcd for an alleged violation of tlie iJnited States ('iiHtoinw laws. In piirmiance of this arrest, tiie vessel was taken to Sitka and tliero liltolled and improperly eondeinned on the second charge pToferred ai^ainst her. Whilst the moihi.s rivrndi of 1802 was in force, the flchooner \\ i 10 " Henrietta" was seized in the open waters of lichringSeaforan alleged violation of the mailus, hut the Unitetl States Qoverii- nient instead of handing her over to the British authorities to be dealt with as provided by the terms of tlie modus, proceeded against her for an alleged inlraction of the municipal laws of the United States. This latter charge was subsequ'Mitly aban- doned, but the vessel was not returned to her owner until 1804. In 1802 the schooner " Oscar & Iliittio" was also improperly 8eizeending an appeal from a judicial decision, it is preferable to await the judgment of the appellate court in the premises. — AVashington, Aiiril 21, I888.'» In June, 18U0, the British Anibar^saJor left with the United States Secretary of State a protest in which the following pas- sage occurs : — " The undersigned is in consequence instructed formally to protest against such interference and declare that Tier Britannic 30 Majesty's Government must hold the Government of the United States respotisible for the coiiniijucncrs that mmj ensue from arts lohich arc contrary to the cstaldishcd principles of international law." li. r,!i. Vul. L'LM. V. s. I The claims actually submitted by Groat Britain referred to in trie voles vcrbales, and which were afterwards presented to the Paris tribunal comprised a demand for compensation due to all parties interested ; for instance, in the claim of Morris Moss for the schooner " Lily " seized in the year 1889, paragraph 6, states : — 40 " I, for myself, and the crew and hunters of the said 'Lily ' claim damages against the (Government of the United States of America for the seizure of the said ' Lily,' and for the tak- ing and detention of said 333 seal skins, and for 1,767 seal skins, the balance of the estimated catch of 2,100 in Behring Sea for the full season of 1889." The claim of George Byrnes for the schooner "Triumph " in 1887 (paragraph 8) reads: — " I, for myself and the crew of the said schooner on said voyaqe, claim from the Government of the United States damages for ^" the illegal boarding and searching of the said schooner 'Triumph ' and for the breaking up of the said schooner's seal- ing voyage, whereby I and the said crew lost the benefit and advantage of a catch of at least 1,000 seal skins." 16 THB SCOPE OF THG OONVBNTION. In tlio claim of Snnniol W. Kiifknain for tho schoonor "Ariel,'' paru|rraph 1- rciuls : — "I, for mysch', and tlio 8ai«l .lolm Nf. Taylnr, and tlio said Rela K. Tjuwronce, my co-ownors in tui'ul Hiiiooner ' Ariel,* atiil Wit'wise for thv creir of Ihv naiil ' Arii i ' on .vtiil voi/m/r who irrrr and 0 subjects of either country as regards the taking of fur-seal in or habitually resorting to tho said waters." Article 8 provided : — "The high contractijig parties having found themselves unable to agree upon a reference which shall include the ques- tion of the liability of each for the injuries allegetl to have been sustained by tho other, or by its citizens, in connection with the claims presented and urged by it ; and, being solicitous that this subordinate question should not interrupt or longer delay the submission and determination of the main questions, 3U do agree that either may 8ul>nnt to the arbitrators any ques- tion of fact involved in said claims and ask i'or a finding thereon, the (piestion of the liability of either government upon the facts found to be the subject of further negotiations." The findings of fact in tho Paris Award refer to tho crews mentioned in the claims in these words : — " 1. That the several searches and seizures whether of ships or goods and the several arrests of masters and crews respect- ively mentioned in the schedule to the British Case, pages 1 to 60 inclusive, were made by the authority of the United 40 States Government." It is a well recognized principle of law established by both American and English autlioritics that vessels are deemed to be a part of the territory of the nation to which they belong and that all serving on board aro entitled to the protection of its fiag. 1. Hc|i.iiisun's In support of this proposition we refer to the case of the uliKirtli, \>. 'J3 " Endrought," where the nationality of the master of a trading vessel being in question Sir W. Scott says " that mariners are to be characterized by the ronntry in whose service they are ^" employed." * *Jf TUK SCOPE OF THE CONVENTION. 17 Wtukn itf l>;u)i.l WiU ^tvr, !ltli ir|j thin. Mil. .*>, |.. I Id. Webster in liia 8peech in . tii:>. And Bylcs, J. said : "I told the jury that the ship being a Britisli ship was ||,|,| ,, i,;,^ under tho circumstances a floating island where the Britisli law prevailed ; tliat the prisoner though an alien was under the protection of the British law and was as much subject to its sanctions as if he had been in the Isle of Wight." 30 In the case of St. Clair vs. the United States the Supreme Court in giving judgment say : — "A vessel registered as a vessel of the United States is r. s. h,.,„„u in many respects considered as a portion of its territory, and i"''. i'- '•''-■ ' persons on board are protected and goveriied by the laws of the country to which the vessel belongs.' " In the case of Worth vs. the United States (Alabama Claims), Rayner J. said ; — " If this right of the foreigner inures to him in time of war_.^,,„ j,,^ ,^,, between his native and his adopted country, how much more Nm! l'i'.\'ii.i " 40 consistently may it not seem to belongto him in timn of peace? ^•'rj;;'^"'""K- If he may rightfully claim this protection when merely residing ' " " or sojourning here, in the pursuit of his gainful callings, with how much greater contidence may he appeal to it when he has braved the perils of the deep and embarked his hopes and his fortunes under that flag which is the ensign of the nation's power and glory ? Of all the nations of Christendom not one has done so much to vindicr "■ i 'he freedom of the seas against that proud and mighty nativ ^ that claims to be their ' mistress ' as the United States of America. No other nation has done so 50 much in imparting to its flag that moral power which speaks to the nations in the still small voice of warning that it is the emblem of a nation's might, and that if he who trusts to its protection be harmed under it, his wrongs shall not go unredressed." B&— 3 II TilK 8C0I>K OF TIIK UONVKNTION. Ill Scliroibor JM. tlio I'liitetl StatoH, Mr. .Fimfico .r«\vt'll (|iii»t»!8 with u|>proval tlio followiiifj Htatfiiioiit I'roin the miniu jiulg- nii'iit : — lla( kill 'III " [t wiiH 11 tjroat priiici|>li' for wliiih our jfoviTiiiiiciit liml \',ji'"'l'.''irsi coiitt'iHloil iVoiii its orij^in, a iiriiiiipli' idoiititii'd with the frei'ihdii ot'thu sens, viz. : that tlio lla-,' |irotocti'tl tlio nhiji ami ovury person ami thing thuroon not coiitruhaiiil." It is ther.^ioro snlinnttcfl that the ilaiiiiH referred to arc all llif cbiiins whli'li iiail bi'eii pn'sontod and urged h\ Great ISritaiii prior to the date of the Convention; and further that Great 10 Hritain in entitled tn eoinpeiiHation from the United States on her own iiehalf, and on hehalf of every person who was interested in any of the ve.-'seU in question, their cargoes and voyage, rilhrr (ts owner, muslfr, imtlt; mcmlur ol the crew, or ollh'rwisi. KKKKCT OF Til 15 I' A HIS AWAIll). (Tudor tlio terms of tlio Treaty of 1802 hotli govciiimoritB wore at lilierty to Hiibmit to the I'ariH Trihnnal any <|Ui>rttioti of I'aot coMiiected with tlio daiiuB, .-Md tlio fiiidiiij,'8 inudo hy tho triliiiiial upon any (|ncBtioii so submitted are tiiial : Imt it is iiicunilioiil upon tlie coimiiissioners to pass upon any addi- tional facts arising? in any claim before them. The fmdings of the Turis Tri'.)unal have boon previously quoted, and with reference to tho claims which were then 10 before the arbitrators, conclusively estulilish every point neces- sary to the j?ranting of compensation, save only the assessment of tho damages sustained, and tho (|Uc8tion of alleged United States citizenship of certain claimants which matters were withdrawn from consideration there. It is unnecessary to discuss this subject further as it is common ground, Mr. Blodgott, one of the United States counsel, in his writ- ten argument on damages submitted to tho Paris tribunal says : — "Wo, however, preface what wo have to submit on this r. s., n, jit. 20 feature of the case by saying that, if it shall bo hold by this tribunal that these seizures and intorforonces with British vessels were wrong and unjustifiable under the laws and principles applicable thereto, then it would not be becoming m our nation to contest those claims, so far as they are just and within tho fair amount of the damages actually sustained by British subjects." And to the same ott'ect was tho language of the leading counsel for the United States on the opening day of this com- mission, when ho said : — 80 " The representatives of Iler Majesty's Government aiid of h 5, |, m the United States came together in Washington with certain facts settled, to wit, the illegality of certain seizures." And further on, after alluding to the subject of United States citizenship which will bo hereafter discussed, pro- ceeds : — " But, as to tho main question, tho United States Govern- h. 5, i,. ir.. ment is as anxious as Her Majesty's Government can be, to have this sum fixed that we shall pay, and fixed as expediti- lusly as possible. We are not disputing tho liability. The 40 liability having been fixed, tho United States Government wants to pay the last dollar of damages for which it is liable, and to pay it as soon as the amount can Ijo agreed upon, or fixed by this commission." And again : — " There is no difficulty in my learned friends, h. 10, i,. 1. representing Her Majesty, putting in their entire case, for it is a more assessment of damages in tho ordinary way." ciU<^^ i^if^'f 19 MEASURE OF DAMAGE. The iVftH in rospcct of wliich damages are claimed were aquivaleiit to an iinwarmnted invasion of the territory of a friendly power in time of peace. They constituted an insult to the flag of Great Uritain, repeated from time to time, accompanied by the seizure and confiscation of valuable pro- perty, in the face of contiinied protests, and even after the acts and declarations ot the United States Government had given an implied assurance to the contrary. The right asserted was so extraordinary in its character, 10 and in particular so contrary to the position assumed by the United States in their dealings with other nations where the same principle was involved, that it could not in the ordinary course of events have been anticipated by any of the persons engaged in pelagic sealing which it was the avowed intention of the seizures to interrupt and forever destroy. The injuries, therefore, which were inflicted were the result of a wrong unprecedented in its character, designedly perpe- trated, without notice, upon innocent persons carrying on a lawful occupation, executed in a most arbitrary maimer, and 20 accompanied with circumstances of great hardship and suffering. The damages thus caused have been aggravated by the fact that for many yearstheUnitedStatesliavedisputedtheirliability, shifting their ground from time to time from one untenable position to another equally unsound, during the whole of which period they have failed to make any reparation whatever to the parties who were the direct sufferers from their acts and pretensio!i8. It having now been determined beyond question, that there was no foundation in international law for the assertion of an} 30 of the claims put forward by the United States, the ordinary practice among nations requires that the damages should be assessed upon a scale so liberal as to leave no room for doubt that any form or class of injury sustained has been left without a full and just reparation. In support of the position here assumed the language of the counsel for the United States before the Geneva arbitration may be quoted. In laying down tlie rule which should control that tribunal in the assessment of damages in cases similar to that now ^q before the present commission they submitted the following propositions of law : — " (<7.) AVhen the demand of damage is founded on a tort, as distinguished from a contract, severity is to be shown toward the wrong-doer, and the losses which the injured party has ^^ 1 MBASnUE OF DAMAGE. 21 Buftered are to be appreciated with liberality for the purpose of indemnification. " Infractions of contract are to be anticipated, in view of the too prevalent carelessness of men in this respect, the possibility of which will, therefore, have been foreseen and taken into consideration by the other party. " But when there is violent wrong,it is a fact beyondprovision, which of course occasions more perturbation and derangement of the affairs of the injured party, and which has a character 10 of perversity more grave than that involved in the mere non- execution of a contract. Of course reparation should be exacted with more rigour. " {b.) Wlicvi the damage claimed is founded on a tort, the culpable animus of the wrong-doer constitutes an eler.-snt of the question of daiTiage. In such cases the injured party is entitled to damages beyond the amount of actual loss, in the nature of exemplary or punitive damages." And later in the same argument they say : — " The doctrine in this respect, as understood in Great Britain 20 and the United States, is stated by an American author as follows : — " 'In these actions all circumstances of aggravation goto the jury. " 'The necessary result of this rule is that all the attendant circumstances of aggrsivation which go to characterize the wrong complained of may be given in evidence ; and so it has been held, both in England and in this country. Indeed, it may be said that in cases of tort, where no fixed and uniform rule of damages can be declared, the functions of the court at 30 the trial of the cause are mainly to the reception and exclusion of evidence when offered, either by way of aggravation or mitigation, and to a definition of the line between direct and consequential damage.' "On this point there is unanimity of opinion among jurists, both of the common law, as in Great Britain and the United States, and of the civil law, as in countries of the Roman law in Europe and America. " The illustration of this rule, as among private persons, also applies to governments. 40 " In fact," says Mavne, " if any other rule existed, a man of large fortune might, by a certain outlay, purchase the right of being a public tormentor. He might copy the example of the young Homan noble mentioned by Gibbon, who used to run along the Forum, striking every one he met upon the cheek, while a ilati"ii>, N.is. llli, I.V.I, lt)0, H!2, ami lli:i. Il>iil. 1laintiff had lost the profits of the sales of pianos for two years ; and this was held not to bo too remote, although the servants were not hired by the plaintiff for any definite period, but worked by the piece. Richard.-on •!., remarked : 'Tiio damages he is entitled to receive from the defendants is not necessarily to be oO confined to those servants he might have in his employ at the time they were so enticed, or for the part of the day on which they absented themsolvesfrom his service ; but he is entitled to recover damages for the lost sustained by their leaving him at that critical period.' (Gunter v. Astor 4 Moore p. 12)." At section 4ti the same author [loints out that the dilliculty in estimating in money the amount of any head of damage is no ground for disallowing it : — "The chief objei'tion urged against the allowance of com- pensation for mental suffering is that it is not capable of being (JO LOSS OF (!AT(!1I. 20 I OHtimatod in nioiiov ; Imt that iirijmiuiit niifjlit as well Itc urn'cd against awarding; (laniajfos (orpliysical pain ' Woiiiid- ini^ a man's t('elinj,'s,' said Hecklcy, (3..I., ' i:< as niiicli actual dainaifo as breakin.u- his limbs. Tlio ditt'erencd is, that ono is internal and the other external ; one mental, the other physi- cal ; in cither case the dainajj;e is not measurable with exact- ness. There ean lie 11 closer aiiproxinnition in eHtimatin- Heqiiently to tniiiHiiiro, iiiid which iiiuy hy posnihility not liap- pen, in not an iiirtiipomltle ol))ection to rufovuring of (hiniufjos from rtiicii 11 io8-t. Tiiu uhiince, so to speak, of obtaining tliat advantngo by iiorforniaiico oft he contnict, and tlio conjunction of tliu nci'it-ssary mihHU(iiient facts, may ho vahnihlo. Tho mi- tiii'o of the contingency miisthcconsidorod. If it is purely con- jectural, and cannot ho reasomihly anticipated to happen in tho usual course of things, it is too uncertain. Tliero must he proof 10 h'Uiilly tending to show and suUicicnt to satisfy tho jury that if would happen. Tho chance tliat a father would pay a son's debt lo procure his release from custody, lias been held capable of estimation." Tarletoii vs. M'Gawley may also bo cited ; Tliis was nn action on tlie case. Tho declaration charged i, that the dcfendent contriving and maliciously intending to ''■ liindor and defter certain natives from trading with the plain- tiff's ship, with force and arms, tiretl from a certain other ship at a canoe filled with natives and killed one, whereby the said 20 natives of tlio said coast wore deterreil and hindered from trading with the plaintiff's ship and the plaintiff lost their trade. It will bo observed tliat unless the special damage alleged was eufHcicnt tho wliole action would fail and a non-suit mu8t liave boon granted. Lord Kenyon said : " This action is brought by the plaintiffs to recover a satis- faction for a civil injury which they have sustained. The in- jury complained of is, that by the improper conduct of the 30 delieiidant the natives were prevented from trading with the plaintiffs. The whole of the case is stated on the record, and v if the parties desire it, tlic opinion of tho court may hereafter bo taken whether it will supiiort an action. 1 am of opinion it will. This case has been likened to cases which it does not at all resemble. It has been said that a person engaged in a trade violating the law of the country cannot support an action against another for hindering him in that illegal traffic. That I entirely accede to, hui it does not apply to this case. This is a foreign law ; the act of trading is not itself immoral, and 40 a jus pusitivitm is not binding on foreigners. Tho king of the country and not the defendant sliouldhavo executed that law. Had this been an accidental thing, no action could have been maintained, hul it is proved tlua the difcndanl liad expressed an inlention not to permit any to trade until a debt duejmn the natives to hnnself was satisfied. If there was any "court in that country to which he could have apiilied for justice ho might have done so, but lie had no right to take the law into his own hands." "Tho plaintiff's had a verdict, and the parties agreed to refer 50 the damages to arbitration." The " liisolulo" : — In this case a French fishina: brisr ofl-12 t„„. p tons employed in the cod fishery ofi' the Banks of Newfound ';?J'':"V"'" land, came in colhsion on the 6th of July, 1881, withaii Italian i'" barque, and in consequence of the collision was compelled to put into port for repairs, but her repairs having l)een completed returned to the fishing ground before the close of the fishing season. In an action of damages instituted on behalf of the 273. H2 L08« OP PATCH. owiuTH ol' tlio \>r'\n iiijiiiiiHt tlic lmii|U(', llie Court iiroiioniK'cd the lpiir(|iu( Holi'ly to liliiiin' tor tlic .ollision iiiid ri'l'frii'.8-'. It m made up thus :- ^^^^ AmiH.'' Wages of cai>taiii ai:d crew § 028 57 10 Insurance 570 00 Ballast 58 00 Lumber and cost of i)hitforms and stage.. 70 87 rrovisions 20133 » 1,530 97 The hist preceding voyage to Fortune Bay, January, 1875, she brought back a cargo of herring, which she sold for.... ^ 6,414 70 Tho expenses were 1,535 85 1? 4,878 85 20 Add above 1,530 97 Total $6,309 82 The smallest formulated claim is that of the " Isaac Rich,' $2,401 .00, made up a3 follows :— Wages I 795 go Insurance 400 00 Store bill 213 71 Salt 322 88 ^■«sh 103 23 Bill of herring 120 22 30 Cargo of trade i^o;52 25 $2,986 09 Sale of hnrring, 018 barrels at $2 1,836 00 $1,150 00 Tho cargo of the vessel had been con- tracted for at $3 per barrel, but on account of delay oidy brought $2, being a loss of <)i^ QQ Full cargo would have been 1,200 barrels, but on account of disturbance did not 40 obtain but 918 barrels, leaving a defi- ciency of 282 barrels, which would have cost $423 and sold for $846, a loss of... 428 00 Total ij 2,401 09 B S — 5 R 84 LOSS OP CATCU. The claim of tho schooner " Ilereward " is made up as fol- lows : — Outfit for voyage ^ l,i>00 00 Wages (four months) 1,000 00 Provisions 400 00 Outfit for vessel, fitting out, etc 400 00 Insurance 600 00 $4,'fm 00 Less part of outfit returned 500 00 «i3,800 00 If the vessel had made a fairly prosperous voyage her profit would have been $ 2,000 00 e 5,800 00 Less small amount of herring brought back 62 00 8 5,742 00 iisHlrvTlw" '^^^ *^'"'™^ '^^^'^ ^^"'^*^ ^y ^^^ payment of a lump sum p'. 74 7«. ' amounting to about two-thirds of the sum claimed, and implying the consent of both nations to the principle involved in the claim for catch. 10 INTEREST. It is subiDitted that the indemnity should comprise interest calculated at the rate current in British Columbia, on the whole amount of the loss or damage from the time such dam. age was suffered to the expiration of the six months allowed by the convention for the payment of tlie amount awarded. In 8up|iort of this proposition, the language of the counsel for the United States before the arbitration at Geneva may be again adopted : — 10 "The case of the United States desires the tribunal to ti„, „r^,„„„„t award a sum in gross in reparation of the losses complained "tci.n.vit, of; and the counsel request this, assuming the tribunal shall ''' ""^* be fully satisfied that the said losses are properly proved in detail, and that the sum total thereof, as claimed, is due by Great Britain. " In that contingency the counsel assume that interest will be awarded by the tribunal as an element of the damage. We conceive this to be conformable to public law, and to be required by paramount considerations of equity and justice. 20 " Numerous examples of this occur in matters of interna- tional valuation and indemnity. " Thus, on a recent occasion, in the disposition by Sir Edward Thornton, British Minister at Washington, as umpire, of a claim on the part of the United States against Brazil, the umpire decided that the claimants were entitled to interest by the same right which entitled them to reparation. And the interest allowed in this case was $45,077, nearly half of the entire award ($100,740). " So in the case of an award for damages by the Emperor 30 of Russia in a claim of the United States against Great Britain, under the treaty of Ghent, additional damages were awarded in the nature of damages (interest?) from the time when the indemnity was due. In that case Mr. Wirt holds that, according to the usage of nations, interest is due on inter- national transactions. " In like manner Sir John Nicholl, British Commissioner in the adjustment of damages between the United States and Great Britain under the Jay Treaty, awards interest, and savs : " • To reimburse to claimants the original cost of their pro- 40 porty, and all the expenses they have actually incurred, together with interest on the whole amount would, I think, be a just and adequate compensation. This, I believe, is th*. measure of compensation usually made by all belligerent nations for losses, costs, and damages occasioned by illegal capture.' " In answering this argument Sir Roundall Talmer, for Great limi, paiij. Hritaui, referring to the cases under the Jay Treaty cited by the United States counsel says : " Tli;3 iigain, was a case of the award of interest on n prin- -jj cipal value, actually ascertained and proved to be recoverable 35 86 INTEREST. 0|iini()iis Att( ini-y < il'lllllll, •J, p. •J.l. I'. ;fi. by appropriate evidence, in respect of property belonging to citizens of the United States, which had been seized and appropriated, and unjustly detained, and (in some cases) sold or otherwise disposed of for their own benefit, by persons acting under the public authority of the Crown of Great Britain. In both these essential points this i)recedcnt of 1704 stands in direct opposition and contrast to tlie claims now before the present tribunal." This remark applies exactly to the claims before the present commission and shows that the Jay Treaty case is a pre- 10 cedent in point. The arbitrators at Geneva, on the reasoning quoted above decided " that it was just and reasonable that interest showed be allowed at a reasonable rate." In the opinion of United Scatci Attorney General Wirt referred to in the above extracted argument the following lan- guage is used : — " Ist. Is interest a part of the indemnity awarded by the Emperor ? " And a little further d'lW.' on ■ > .ane page : — 20 "f "After the most deliberirc eoi.i^Aiuration of all the argu- v,,i. ments which have been urged [To and con, I am clearly of the opinion that intcreet at least is a necessary part of the indem- nit}' awarded by the Emperor." And at page 31 he makes the following remarks : — " And then the only remaining inquiry is, what is the award ? It is, that the United States are entitled to a just indemnifica- tion for the slaves and other property carried away by the British forces, in violation of the first articles of the treaty of Ghent. What ia just indemnification for a wrong? Is it the gQ reparation of the one-half or two-thirds of that wrong? Is it anything legs than a reparation of the whole wrong? On these few simple ideas the whole question turns. If an injury is justly redressed which is onlv half redressed then the Brit- ish commissionir is right ; but if an injury ij < of th; icMty, tho slaves and other property of America. I jit'-ens ..oro carried away in tho year 1815, and INTEREST. 87 liave been detained from them ever since. They have thus lost the use of this property for eleven years. Is the meagre return of the avi^rage vahie, at the iime the slaves and proper ty were thus taken from them, a just indemnification of the whole wrong? That the act of taking' away the property was a wrong, is no longer a question. Whatever disposition there may be to make it a question, it has been settled by the tribu- nal of the party's own choice, and car no longer be made a question. The iirst act of dispossession being thus established 10 to be a wrong, is the continuance of that dispossession for eleven years no wrong at all? Is it consistent with that usage of nations which Sir John NichoU recognizes, to redress an act of wrongful violence by the return, at any distance of time, of the naked value of the article at the date of the injury ? In the case of Ekins vs. East India Company, it was decided that interest should be allowed for a ship's cargo taken by the defendant ; and this being done in the Indies, Indian interest was allowed, (about 12 per cent,) deducting the charge of return from the Indies. 20 It was objected : 1. That the value of the ship and cargo being inicortain, it i.*'«';' ^y'l- could not, in the nature or it, carry niterest, but trom the time vol. i, i«(,'i- it was ascertained by the jury. 2. That the plaintiff had, at this time, rested thirteen years upon his own bill, and therefore to allow him Indian interest would be to make him a gainer by his own delay. But the court decided : " If a man has my money by way of loan, ho ought to answer interest; but if he detains my money from me wrongfully, he 3Q ought, a fortiori, to answer interest. And it is still stronger where one by wrong takes from me either my money or my goods which I am trading with, in order to turn them into money. "Therefore, let the defendants pay interest; and this being transacted in the Indies, where the person who acted by autho- rity under them, and for their use, must be presumed to liave made the common advantage that money yields there, the company must answer the interest of that country." ;t!iri (!. This case was affirmed on appeal to the House of Lords. '_', lil'dWUM I'iU'liaitirnta- in Referring to interest, Mr. Da vies in his introduction to his 'y c-Mi's, '*'-' ° . p. ;w2. notes on treaties says : — " According to the usage of nations it is a necessary part of inn;". X'>U' a just national indemnillcation." liaVi,!!' Notes (111 Tii'iititis, piigu au. Applying to the present ease the principle underlying the above quoted authorities that interest is due as an element of indemnity, it follows that such interest must be calculated at the current rate at the place where the injury was committed to make the indemnity complete. The principle is the more applicable in cases where private 50 individuals have been injured by a nation, they having no means of pressing their claims. MMHMUMHHMI IS GREAT BRITAIN'S CLAIM AFFECTED BY CITIZENS OF THE UNITED STATES HAVING AN INTEREST IN ANY OF THE VESSELS ? Attention has already been drawn to the varying grounds upon which the United States defended their seizure of the vessels in question. The United States did not until after the signing of the Treaty of February, 1892, either directly or indirectly, through- out their long diplomatic correspondence with Great Britain' or otherwise, refer to the fact of any of the vessels seized 10 being owned by its citizens as affecting its responsibility. In presenting their case at Paris, they treated and design- ated the vessels seized or interfered with, as British vessels, and made no submission involving the question now • .itier consideration, although as early as 1889 they were ir posses- sion of the facts upon which at a later date they based their contention that citizens of the United States were interested as owners in some of the vessels. It cannot, therefore, be presumed that at the time of the Treaty of 1892 the question was in the minds of its framers, 20 or that the words " its citizens " which formed part of Article 8 of said treaty had been intentionally used, as was contended by Mr. Blodgett in his argument at Paris. Great Britain in the negotiations which followed the Award was careful to close the door to any such argument as that above referred to, and insisted on other words being used in the Claims Convention. The following despatch shows how this change occurred in the drafting of the Convention : — Mr. URESHAM TO SIR .JULIAN PAUNCEFOTE. 30 " Department op State, "Washington, August 16, 1894. "Dear Sir J' ian: — I have your note of the 15th instant in relation to the prc^'Osed convention for the settlement of the Behring Sea claims. "Referring to the doubts raised by Her Majesty's Govern- ment as to the restrictive effect of the words ' British subjects,' in the fourth recital of Article I. of my counter draft, you state that you mentioned to Lord Kimberley I had given you the assurance that the Government of the United States 40 ' desired to satisfy all claims, the payment of which were justly due by international law;' and you then say that you have received a reply from His Lordship ' to the effect that Her Majesty's Government take note of that assurance and waive their objection to tiie words in question.' "While I am not of the opinion that the language of your note is ambiguous, it is perhaps advisable, in order to avoid any possible misunderstanding hereafter, to say that in re- ferring to international law, it was not my intention either to 38 '^ UNITED STATES OWNERSHIP. 89 enlarge or restrict the language of the proposed Convention, but it was my intention to convey the idea that the commis- sioners would, in considering its terms, bo governed by the principles of international law. Such I understand to be your interpretation of my meaning, as expressed in your note ; but out of abundant caution I desire to avoid any possible ground for the inference that anything may have been said by mc with the intention of modifying or controlling the Convention by assurances given outside of it. " If convenient to you, I shall be pleased to meet you at this department at 11 o'clock a.ra. to-morrow, for the purpose 10 of signing the Convention. " I remain, etc., W. C^ GKKSHAM. " Article I. of the Claims Convention now reads as follows i — "Article I. The high contracting parties agree that all claims on account of injuries sustained by persons in whos • behalf Great Britain is entitled to claim compensation from the United States." etc., etc. Article 3 contains the provision that "the government of the United States shall have the right to raise the question of 20 its liability before the Commissioners in any case where it shall be proved that the vessel was wholly or in part the actual property of a citizen of the United States." No allusion it will be noticed is made to the interest which any United States citizen may have in the result of the voyage or in the cargoes. The inquiry of the Commissioners is clearly limited to the consideration of the ownership of the vessels. The position of Her Majesty's Government from the incep tion of this controversy, has been to hold the United States liable for all the damage done by their authority to vessels on the high seas, which were carrying the British flag and duly "" documented. And it is submitted that under no principle known to the Law of Nations, can it be open to the United States in time of peace to go behind the flag or register. It will be observed that if on the one hand the United States reserved the right to raise the question of such owner- ship, Great Britain on the other hand, although consenting that the question might be raised, did not at any time admit that the consequences claimed by the United States would follow from the proof of the facts alleged. ^" What then is the protection aftbrded by the national ll.ag to a ship on the high seas in times of peace ? When Great Britain urged the mutual concession of right of search to ascertain' if a suspected vessel was engaged in the slave trade, the United States refused to assent. Referring to the Treaty of Washington, 1842, Woolsey observes: "Tho United States admit of no right of search of vessels sustaining their national character. If then a British cruiser boards a 50 vessel of the United States whose papers are right no search can be made notwithstanding the most flagrant suspicion." President Tyler's message, February 27, 1843 (Wharton, par. 327, p. 134) contains the following sentence : " Denying as we do all colour of right to exercise any such general police over the flags of independent nations.' 40 UNITED STATES OWNERSHIP. t.r. V..I. (1, tliiil XH. Ibid ;«7. |lM(l%i'.l In 1843, Mr. Webster, writing to the President on February 26th, says : — " That the British Government made no pretension to interfere in any manner wliatever, either by detention, visit, or search, with vessels of the United States, known or believed to be such ; but that it still maintained, and would exercise when necessary, its own right to ascertain the genuineness of any flag which a suspected vessel might bear ; that if, in the exercise of +his right, either from involuntary error, or in spite of every precaution, loss or injury should bo sustained, a prompt iq reparation would be aftbrded ; but that it should entertain, for a single instant, the notion of abandoning the right itself, would be quite impossible." In his despatch to Mr. Everett, March 28th, 1843, he says : — " Lord Aberdeen, in his note to you of the 20th December, says : 'The undersigned again renounccR as be has already done in the most explicit terms, any righ on the part of the British Government to search American vessels in time of peace. The right of search, except when specially conceded by treaty, is a pure belligerent right, and can have no existence 20 on the high seas during peace. The undersigned apprehends, however, that the right of search is not confined to the verification of the natii lulity of the vessel, but also extends to the object of the voyage and the nature of the cargo. The sole purpose of the British cruisers is to ascertain whether the vessels they meet with are really American or not.' " And again : "Nor can the United States Government agree that the term 'right' is justly applied to such exercise of power as the British Government thinks it indispensable to maintain in 30 certain cases. The right asserted is a right to ascertain whether a merchant vessel isjustl}' entitled to the protection of the flag which she may happen to have hoisted, such vessel being in circumstances which render her liable to the suspicion, first, that she is not entitled to the protection of the flag; and, secondly, that if not entitled to it, she is, either by the law of England an English vessel, or, by the provisions of treaties with certain European powers, subject to the supervision and search of British cruisers." * * * '• If visit, or visitation, be not accompanied by search, it ^q might well be, in most cases merely idle. A sight of papers may be demanded, and pai>crs may be produced. But it is known that slave traders carry false papers and different sets of papers. A search for other papers, then, must be made where suspicion justifies it, or else the whole proceeding would be nugatory. In suspicious cases the language and general '.ppearance of tiie crew are among the means of ascertaining the national character of the vessel. Tiie cargo on board, also indicates the country from which she comes. Her log-book showing the iirevious course and events of her 5Q voyage, her internal iitnient and equipment, are all evidences for hor or against her, on her allegation of character. These matters, it is obvious, can only be ascertained by rigorous search. " It may be asked, if a vessel may not be called to show her papers why does she carry papers? No doubt she may be called upon to show her papers ; but the question is where, when, and by whom ? Not in time of peace, on the high seas, where her rights are equal to the rights of any other vessel, and where none has a right to molest her. The use of her ■ it UNITED STATES OWNERSUIP. 41 papers is, in time of war, to prove her neutrality when visited by hellii^ercnt .Tuisers, and in both peace and war to show her national"" character and tho lawfulness of licr voyage in those ports of other countries to which she may proceed for purposes ol' trade." And further on : "At the same time, the government of the United States Works o^f^^^^^ fully admits that its Hag can give no immunity to pirates, nor t,.;!. vd. «, to any other than to regularly documented American vessels." i«K":f4i- 10 Mr. Cass, United States Secretary of State, says, writing to Mr. Dallas, in 185(t:— " This country is desirous of the extinction of the slave trade, and is employing a larger force for that purpose in pro- portion to its navid means "^tlian any other power whatever. JJut it has other great interests upon the ocean — the immunity of its Hag, the protection of its citizens, and the security of its commerce— which it does not intend to put to hazard by per- mitting the exercise of ai!" foreign jurisdiction over its mer- chant vessels". 20 Woolsey in his work on International Law says in reference to the above : — "This discussion took place between 1841 and 1843. Since Woolwy in- then, in 1858, the British Government having stationed cruisers I'^'p!'';^!. near Cuba, for the purpose of preventing the slave trade \yith ."-J. that Island, certain American vessels were visited on suspicion, and loud complaints arose. The Senate of the United States, thereupon, passed the following resolution : That Ammean vessels on the high seas in t he time of peace, bcarin;) the, American flag, remain under the jurisdiction of the country to which they 30 belong ; and therefore, any visitation, molestation, or detention of such vessel by force, or by the exhibition of force, on the part of a foreign fower is in derogation of the sovereignty of the United States. " From the explanations which have since taken place it does not appear that the British Government was disposed to deny the right which this resolution imi)lies. Knowing and believing slavers to have an American nationality, it has, at least since 1842, disclaimed the right to detain then., and 40 finding them to bo American, upon examination of their papers" it admits that it cannot search them without a iolation of international law." It will bo observed that in these negotiations, and in the correspondence relating to the subject, Great Britain did not attempt to claim more than [lermission, in case of suspicious circumstances, to visit a vessel flying the United States Hag taking the risk of searching the vessel without, at the same time, claiming to be absolved from liability should ihe vessel's papers be geiuiine, and her nationality bo thereby established. u s — 6 -JJHJJ 42 UNITED STATES OWNERSHIP. Sni. Kx. I).. N:( ('iillt;irsK, :i srss. |t. 2(». Ilml p. 11. President Grant, in his message, 1873, referring to the " Virginius" said: — " Wiien, tlierefore, slie left the port of Kingston, in October last, under the flag of tlie United States, she would appear to have had, as against all jiowers exiept the United States, the riglit to fly that flag, and to claim its protection, as enjoyed by all regularly documented vessels registered as part of our com- mercial marine. " No state of war existed, conferring u{)on a maritime power the right to molest and detain ujion the high seas a docu- 10 mented vessel ; and it cannot be pretended that the ' Virginius' had placed herself without the pale of all law by acts of piracy against the human race. "If her papers were irregular or fraudulent, the ott'ence was one against the laws of the United States, justifiable oidy in tlieir tribunals." It was only because of the particular words of the agree- ment between Spain and the United States that the registra- tion of the "Virginius" was declared fraudulent. The United Spates Attorney General expressly stated in giving his opinion 20 that if it was not for the terms of the agreement referred to the fraudulent registration would have been no ground for seizure. The opinion of the Attorney General of the United States in that case is found in Ex. Doc, No. 30, II. R., vol. 8, 1875- 74, p. 208. In the very year of the first seizures, in Behring Sea, Mr. Bayard, United States Secretary of State wrote to the British Ambassador in the case of the " L. M. Merritt" (a United States ship) as follows : — " By the Law of Nations as it is 30 understood in this department, the citizens or subjects of a particular country who are owners of a ship, are entitled to carry on such ship, when at sea, the Hag of such country ; and such flag is to be regarded by all foreign sovereigns as the badge of nationality." The British Minister in connection with that case had called attention to the inconvenience arising at British ports in the cases of vessels ov.'ijed by United Staces citizens but not regis- tered as United States vessels. The protection aflbrded by the flag, is involved in the corres- 40 pondcnce in 1891 : — contained in Vol. 5. U. S pp. 776, 778, 827, 842, 002, 904, iiOO, U08, 001), 912 After the award Mr. Carter, one of the counsel at Paris for the United States Government, in discussing the regula- tions, wrote as follows : " If it should turn out that the regulations have destroyed the proiits of pelagic sealing, or redmed them toso low a point as to afford little tenijitation for the Canadian and American vessels to engage in it, their flrst resort will be to seek the protection of another flag; and this may easily be 50 obtained unless all the Maritime Powerso liould he induced to adopt and enforce the regulations." Mr. Bayard wrote to .Mr. Gresham November 1, 1893, suggesting diplomatic corresi)ondence with powers other than % ■i UNITED STATES OWNEKSIIIP. 48 Groat Rrit ail 1 "lest the use of their Hags might bo obtained by the Holicitation of fur-seal hunters from the United States or Groat Britain and her colonies." See also the correspondence between Mr. Gresham and ihe S;n. Kx. Doc. United States Minister at Tokio. ki<«-'. ««<■»«., pa^fs 4,5, -17 The commander of the United States Navy in Behrmg mi.i ."io. Sea proposed in 1894 to issue tlie following instructions touching the regulations in force respecting United States and English vessels : — 10 " It is not to be believed that any friendly power would permit its flag to be used as a cover for the further perpetration of such wrongful acts." * * * * " Should you fall in with a sealing vessel flying any flag other than the American, or the English, or claiming to belong to any other country, or producing papers in proof of such claim * * * * you will proceed to warn him not to seal anywhere within the limits specified in the President'.s proclamation. * * * * " Any such vessel, previously warned, found to have been engaged in sealing within the limits referred to, whether he 20 has accepted a license or not, you will seize, &c., &c." He quickly received orders to cancel such instructions : " Revoke immediately your circular letter of May 28, No, 14. Closely confine self to instructions from the department ; seize under the award only United States vessels and British vessels. Do not interfere with the vessels of other nation- ality if liolours and papers are regular, &c., &c." From the foregoing authorities it is abundantly clear that the flag gives a national character to the ship, and that when on the high seas in time of peace, all on board are as much 30 entitled to protection as if they were on the soil of the nation whose flag is at the mast head and that the question as to whether foreigners shall be allowed to own registered vessels of another nation and carry its flag is exclusively within the province of that other nation and of its municipal laws. The vessels in question were all duly documented as British ships. They were registered as British vessels and carried their certificates of ragistry duly executed by competent authority. The following is a succinct statement of the law relating to 40 British ships : — " It may be convenient here to explain briefly what is meant by the words ' registry ' and ' clearance,' and what are the duties of the officers empowered to register ships, and of the officers of the customs in respect to granting clearances. " 'Registry' signifies tlie recording, in a book kept for that purpose, of the name of a ship which the owner desires to have recognized as a British ship, together with certain particulars composing a general description of the ship. " The etfoct of registry is to entitle the ship to use the British 50 flag and to assume the British national character. The conditions necessary for obtaining registry, in the case of a ship 44 UNITED .STATES OWNEKSIIII', not alreiulv registoretl, are tlio prodiictioii to tlio llej^istriir ot a cortiticate l)y the builder, in a form [irt'scrilunl by law, autl of a declaration (also in a Iire8i'rii)ed form) tbat tbo sbipis Mritisii owned." See Instructions to llogistni" of Sliii)))ing, pii, 7, 12, 14, 16, 16, 17, 26 (1854-1880). The registration of the vessel confers natioiuil character. Honey v. Buchanan, 16 i'atcrs, 21'} Crispo v. Kelly, 16 Wallace, 628. The " Lodonia," Orabbe, 271. Tiie ' Martha Washington,'' 15L. Rep. N. S. 22. 10 Mi' Nationality of private vessels is evidenced by tlag and papers. Ilall. Int. Law, 1S90, p. 101 and see Wharton, 409, already quoted in discussing the subject of visit and search. In the case of Catlett and Keith rs. The Pacitic Insurance Company (reported in 1 Paine's Circuit Court Reports, i)age 594), it is decided that the register only need be on board during a period of universal peace in compliance with the warranty of national character. Judge Thompson states the question as follows : £0 " The next inquiry is, whether the assured have showan compliance with the implied warranty in the policy, that the ' Sphinx ' was an American vessel. That she was American built, and owned by American citizens, is fully proved, so far as parol proof may be admissible to establish the fact, that the vessel was American property. The testimony of the captain is full on this subject. " But it is said that this warranty not only implies, that the vessel was American property, but that she was duly docu- mented as such, so as io show her national character. It was oq intimated by one of the counsel, that other documents than the register were necessary for this purpose, but it was rot distinctly pointed out what those documents were ; and the objection to this extent has not been urged by the other counsel. And I understand it, therefore, to be conceded that an American register, if on board, would have been a com- pliance with this warranty ; and I am not aware of any other document that could have been required. There being a state of uni/ersal peace, and no treaty provisions applicable to the voyage, the register was all that could be necessary to show 40 the national character of the ' Sphinx .' No question of neutral or belligerent rights could arise." The certificates of registry and of ownership in times of peace cannot be questioned or impeached by a foreign power. No foreign power can be permitted to inquire into or deter- mine their validity. " A certificate under the authority of the United States must be taken by foreign powers as genuine, and can be im- peached by them only by application to the Government ofthe United States. This has been lield as to naturalization certi- ficates (supra, § 174 a) ; and the same jirinciple, as was held in the ' Virginius ' case (supra, § <}27), applies to papers cer- 50 UNITRD STATBB OWNRRSHIP. 45 titying, niiilor Mn* authority of the ITiiitcfl Stiitos, that tlio vissscl li()l(liii,.y be shareholders in a company own- ing British ships. Regina v. A maud, Q. B., 804. No authority is required in su[)port of the following propo- sitions : — A British ship may be hypothecated to a foreigner. Foreigners m.ay charter British ships. Foreigners may hold a Bottomry Bond upon a British ship. 50 Foreigners may be mortgagees of British ships. A mortgagee is not an owner. " Except as far as may be necessary for making a mortgaged ship or share available as a security for the mortgage debt, 4fi UNITKD STATUS OWNERSHIP. thu mortiijiijfoo slmll not liy mason oC tliu niortt on the part of certain United States citizens to use tlie names of Uritisli subjects as owners of vos- 10 sels held for their lienelit, such an attempt would //).s() farli) render such vessel forfeit to tlic Crown of Great Hritain. The "Annandalo," 2. P.D. 218. "Tlio Sceptre," (187t5) 35 L T. 429. R. V. Sebo-g, L.R I., C.C.R., 262. The Merchants' Shipping Act, 1804 (a consolidation of previous Acts), Sec. 6',\ provides for the forfeiture of the ship for use of national flag, &c., when owned in whole or in part by a person not (lualified Special procedure is found in Sec. 78 to enforce this for- 20 feiture : " For the purpose of enforcing these statutory forfeitures, any ship wliolly or in part liable thereto may bo seized and detained by any commissioned ollicer on full pay in the mili- tary or naval service of I' Majesty, or any JJrifisli officer of Customs, or any British 'lar officer, and may be brought by tlie same for adjudicf fore the Court of Admiralty in Kngland or Ireland, or any court having Admiralty jurisdiction in ller Majesty's Dominions." EFFKCT OF DOMKULE ON NATIONALITY. Rofereiice haa nlrciuly been made to the reservation by the United States in the Convention of the riglit to nuHO the ([Uos- tion of its iiiii)ility " in any case where it sliail bo proved that the vessel was wholly or in part the actual property of a citizen of the United States." 10 It has also been shown that in time of poacn no other nation but tliat whose register is used and Hag carried is entitlcid to go behind such Hag or register. It is further submitted that if there was any occasion to go into the evidence adduced and received subject to objection, in connection with the ownership of any of the vessels in ques- tion by citizens of the United States, such evidence would in no way avail the United States or siipi)ort their contention. It appears that in the cases of the "Onward" and the " Favourite ' although the legal title to the schooners was duly vested in British subjects, yet they had become the jiro- perty ot a commercial firm carrying on business in British Columbia, and were operated as a part of the general trading 20 business of the partnership. One of the members of this firm was Alexander .McLean, a naturalized citizen of the United States. In the case of the " Black Diamond " No. 5, and the " Alfred Adams" the title was in a British subject, but the vessels were operated for the benefit of a trading firm at Victoria, composed of the owner and one Alexander Frank, who was a native born citizen of the United States. In each of those cases tiie alleged United States citizens were residents of, and were the holders of other property in the 80 province of Mriti.sh Columbia, and had been such for several years prior to the seizures in question. In the case of the " Tathfinder " the schooner was owned by and registered in the name of a British subject, but one Bechtel, who was a native born citizen of the United States, had purchased a half interest in the profits of the sealing voy- ages of the vessel. Bechtel was a man of family, residing at thi city of Victoria, which had been his home for many year.-", where he had also acquired a large amount of real and pcr.TOnal i,ro[)erty, and 40 where (.2 was carrying on the busi.iess of hotel-keeper, and was engaged in other commercial operations of importance. He became a naturalized British subject in 1892. No mention need be made of the vessels in which it is alleged that Boscowitz and Daniel McLean were interested, as it is contended on behalf of Great Britain that no facts were given in evidence which afford any ground for describing these per- sons as United States citizens. 47 m 48 EFFECT OF DOMICILE ON NATIONALITY. ''Mio quostion ia, aro the United States liable to pay compoii- aatior. to iiront Hritain in respect of the iiuUreet interest, it' any, which it may be decidecl was held in such vessels by the persons above described ? It is obvious that the wording of the Treaty has not settled the j)oint. The parties to tlie controversy have agreed that the question may be raised. They have not, by the terms of the Treaty, declared what consoqueneos shall follow the proof of the facts indicated above. The proposition must, tliorofitro, be determined by reference 10 to the principles of intei'iiationa! law, and the usage prevailing among nations under similar conditions. The award of the Paris Tribunal has conclusively establish- ed tluit the injui'ie;! complained of wer<' the residf of an illegal attempt on the part of the United States to enforce the provisions of their munici[ial laws against vesseU owned as above, wliile they were navigating the high seas. Tiie facts, therefore, are that persons born or naturalized in the United States, or commercial firms of which they were members, domiciled and lawfully carrying on trade in Uritisli *J0 dominions, have been deprived of property there held by them as a consequence of the illegal action of the United States. Further, the autliorities previously cited at [)p. 1(!-IS show that tlic loss suffered by those persons has been occasioned through the invasion by the United States (.overnmcnt of Britisli territory and the I'onunission there ol' the wrongs complaineci of Who then is entitled to claim compensation for I lie injuries so inflicted V WlmliiiiV 1 1 tirlKitioll.'il l.im |liK"-l. •.'nil Ivl. S,r. L'-.'ll, |.. ,V.S, (iiititin^^ l'tt> lirlll Alililll' tliH.I .niiMial Tnternatioiial law recognizes States oidy in siieb a contro- 30 vcniy. The injuries di)ne to individuals under such lircums- tiinces are deemed to beaime(l at the sovereignty of the nation in which tln'y I'esidc and should be taken up and prosecuted as a matter of national roneern. On this point in Wharton's International Law Digest the following occurs : — "The claims presented to the I'Vench Commission are not l)rivate claiins but governmentnl claims, growing out of inju- ries to private citizens or their propi'rty. intlicteil by the ( ioveiiMueiit agiiinst \\bicli they are presented. As between 40 - the I'liileil States and the iMtizen, the claim may in sonu' sense lie reiiarded as private, but when the t'hiini is t,dveral instances where this has been (h)ne will occur to yon, notably the case of the so-called ' l"'rcnch spoliation claims.' The rights of the citizi'U AO f(U' diplomatic redress arc as agiiinst his o\\ n not tht fort'ign (iovernment. For the claims within its jmisdiition (he com- mission stands in the place ol the diploiiiatic departments of ,^f EFFECT <)l" nOMICII.H ON' NATtONAUTY. 49 tlic two coiiiiti'iL'9, ii!i(l tlic rosiicctivo agoiits and counsoi repro- BCiit, not tho cliiininnts, hut tlioir reBpot-tive UovcninientH, # # # Tho t'onimission is not n judicial tni)unal adjudging private rights, hut an intornalionai trihunal adjudg- ing national rights."' l!y a treaty hot ween tlie (Jueen of Great Britain and tlio Emperor of Chi:ui, tiie Kniperor agreed to pay the Hritisli Government the sum of §8,000,000, on a.vount ofdeh*^ due to liritif'li suhjeetrf iVoni rertain (Miinese merehants who liad 10 heeome insolvent, heiiig laigely iiidehted to Uritish merchants. Tlie money having heeii rcceiveil hy thi: I'ritish Government, ii petition of right was iiled hy one ot' the persons on whose hchalf a claim had heen made, and in discussing tlie position which tlie sovereign occupies in negotiations such as that which rcsidted in the payment of the indemnity, ('ockhurn, Chief Justice, said : — '• Tho notion that the Ijueen of this country, in receiving a iiu. sum (if money in order to do justice to some of her suhjeets, to ,',''|', whom injustice would otherwise he done, hecomes the agent I'n-J. 20 of those suhjeets, seems to me really too wild a notion to re(iuirttled principle of international law, \\/..: that, by reason of his 50 domicile, an alien aciiuires the (piality of a subject of the country in which he niaki's his honu'. \V'alk(>r, in his hook on tho Science of Tntermitional Law, speaking upon this point says : — "So much lor the geographical boumlarios oi a state. What of the porsoiuddofmition ol the state people V The inhabitants I) s— 7 tt lulilli'C. Vl I.Mlrrll 1 I). Ml, |.. I |,. i!i:i. 60 EFFECT OF DOMIOIT.E ON NATIONALITY. V:ittil. \<-„, •>. ell. 8. M'l'. 104. r. S. Si 11. Kx 1). K'. '.'1 •4li. •_> I'- s, 14 US. conn. of a country at any time may comprise four classes of indivi- duals. There are citizens, and tliese either hy birth (siibdili nati) or by naturali/ation {sahiliti duli) : there may be denizens, being foreigners resident in the country and enjoying special privileges by grant of the territorial sovereign, albeit not raised to the status of full citizens ; there may be domiciled aliens, being foreigners resident in the country, and resident with an intention ot more or less permanent sta}', and there may be mere casual visitors. " But members of all these classes, however differentiated by \Q municipal regulation, are in view of internatioiuil law alike, in general, subjects of the state government so long as they maintain their local position. " The rule fixing citizenship upon any individual, the rule, that is, ascribing nationality, is matter tor Municipal law. In international lav locality, not nationality, is the all important test of character." Again, the implied obligation of obedience to the laws of the country of his domicile, devolving upon an alien by reason of his residence, casts upon that nation the correlative duty of 20 protection in every case in which the rights of such foreigner are invaded or his property (U'stroycd by the wrongful acts of any other state. " The sovereign ought not to grant an entrance into his state for the purpose of drawing foreigners into a snare ; as soon as he admits them, he engages to protect them as his own subjects, and to afford them perfect security as far as deiiends on him. Accordingly, we see that every sovereign who has given an asylum to a foreigner, considers himself no less offended by an injury done to the latter, tlian hewouhl be by an act of violence 30 committed on his o\\ n subject." Commenting on the above ([notation in Worth Case? Rayner, J., says : — " This priuciiile of international law is recognized as a part of the municipal law of Kiigland and of the United States. The English courts have decidi'd, again and again, that not only is a foreigner resident in iMigJand entitled to the protection of her laws to his person and property ; but even in the case of an alien enemy, if he (piietly and peaceably obeys her laws and performs tlie duties reiiuired of him, he his not only ^q entitled to the protection of herlaw.-> in sueing for his rights in her courts, but be his entitled to protection to his person, even fis nijitinst the bmd of his nativitij." It is true that in iho distribution of the fund awarded by the Geneva arbit'.ition, the eliiims of IJritish subjects were not considered proper nnitters for compensation, but this decision was arrived at with great doubt, and the reasons on which it is based give force and emphasis to the considerations above set forth. It was there stated that in the Alabama case, Great Britain 50 was not charged with any act of hostility to the United States, but with culpable negligence, in that she had not enforced the provisions of her own nnmicipal laws against her own subjects in her own territory. The Court of CMaims, therefore, without attempting to apply any principle of interiuitional law to the EFFECT OF DOMICILK ON NATIONALITY. 51 facts bofore thorn liold that the theory ol' the conveiitioii under which tlic award was made, deniuiidcd that under the peculiar circnmstancos of tlio case, (ircat Britain should not be called upon to compensate her own subjects, though at the same time it was stated as an incontrovtM'tible proposition that that power would bo bound to indemnify her own citizens resident in the United States, if the damage had been the result of an act of direct hostility against tliat nation. Discussing the subject in the case of Lord vs. the United 10 States, Rayner J., said : — # # # " And if the contlict had been directly between r.s. Sen. v.x Great Britain and the United States, and there had been an i>"i' j-'i"!. 2 • SI 'SS -14 coiiLr nitent on the part of Great Britain to harm or in any way to p. 41. wrong them while under our ])rotection, all the authorities would go to prove that our Government would be bound to defend and protect them in their rights, ei'en against their own Government. Our complaint against Great Britain was not that she had directly or intentionally wronged our Gov- ernment or its citi/.cns, but that wrong had been done ihr.iugli 20 her neglect to observe her neutral obligations." Then, after reviewing the negotiations which preceded the Convention and concluding that the proceedings at Geneva negatived the idea of the iiayment of compensation to British subjects, he proceeds : — "If Great Britain supposed, as seems to have been the case, ii,i,i ,,. n. that in paying this money it was to indemnify those who had been injured by her tiiilurc to execute her own municipal laws, would she not regard any action on our part in indenmifying her own subjects for her neglect as inconsistent with the ob- 30 jects and purposes for which she agreed to the arbitration in the iirst place, and to the payment of the money in the second place; And trhitr irc )ni<;ht lie Invind. to indemnify a British .siilijn'i x It is contended, therefore, that in the circumstances shown, the term "Citizen of the United States" can as between Great Britain and the United States be applied to the persons in 20 question only in a very limited ami qualified sense. They would doubtless be so styled if they liad returned to that country and had there taken up a permanent abode at or prior to the time when the injuries were inflicted ; but inasmuch as they were then domiciled on British soil they are to be regarded as the subjects of Great Britain in every case in which the principles of international law are to be applied to a controversy arising between that nation and any other state- In this connection it is not necessary to regard any con- tention based on the laws relating to naturalization. Such 30 enactments are municipal in their character. They are generally the outcome of special treaty provisions, and are designed to add certain political rights and certain local privi- leges to a citizenship, which has been already established by the accepted doctrines of international usage. "The only effect of the naturalization acts is to confer the benefits of naturalization in Great Britain on those who come there and avail themselves of them. " In international law, locality not nationality is the all im- portant test of character." CLAIMS PRES PANTED ON A(!C01TNT OF PERSONAL IIARDSniP SUFFERED BY THE CREWS OF THE SEIZED VESSELS. Great Britain claims that there should be allowed in each c£.80 a sum sutHcient to compensate each member of the crew for personal hardship siitfered by him in consequence of the seizure, this sum being in addition to damages sustained by reason of the breaking up of the voyage. It was contended at the hearing that the fact that certain claims for damages for illegal arrest and imprisonment of the masters and mates of 10 some of the vessels had been specially mentioned raised a presumption against the admission of any such claim on behalf of other members of the crews. The answer to this contention is that the claim of the masters and mates was of a nature different from that of the other members of the crews. They were formally arrested and imprisoned under process of law which the other members of the crews were not. Their claims were larger in amount and therefore as a matter of convenience it was considered advisable to deal with them 20 separately, but it was not by this intended to waive the claim of the crew for the personal hardships they endured, which claim being in every respect fair and equHable, should especially as between two great nations be considered a tit subject for adequate compensation. It is not proposed to deal here vvith the evidence proving the particulars of the hardship suffered by the different mem- bers of the crews as this can more conveniently be referred to when considering the case of each vessel separately. It will not be necesssary for the Commissioners to find separately for each member of the crew under this liead,it will 30 suffice if in the case of each vessel a lump sum is allowed suffi- cient to cover the claim arising for personal hardaliip suffered by the crows. 66 THE OHARAOTER AND EXTENT OF THE SEALING GROUNDS IN BEIIRING SEA. The passages on the habits of the Alaskan seal as preseiiteil in the Case of the United States at Paris at the following pages are adopted for the purposes of this argument and as being in the main correct. At page 115 of the Case ic is shown that after breeding on the island the seals go miiuy miles into the sea " from 100 to 200 from the rookeries." * * "They are caught all the 10 way from twenty and one hundred and fifty miles from land." Reference is made also to the " principal hunting ground ' as being one hundred miles from the Islands of St. George and St. Paul. "The course of sealing vessels and their daily catch show also that the majority of the seals taken in Behring Sea are secured at over one hundred miles from the Pribilov Islands." Again, at page 209, it is shown that on these excursions " they fall a prey to the pelagic hunter." The case at page 210 refers to the evidence of an Indian who got 1,900 seals, 20 " all of which were captured in the sea close to Ounalaska." Reference is made at page 322 of the United States Seal Commissioner's report respecting the home of the fur seal. At page 323 it is shown that being migratory animals they follow "definite routes in migration." At page 329 it is said the seals depart from the islands about the middle ot November. Captain Hansen, a witness on behalf of Her Majesty, in his cross-examination Btatrs that the Unirnak Pass is the usual passage of the seal hr rd ; that it is the highway of the seals 30 into Behring Sea. Charts from the United States case at Paris showing the migration of seals and the position of the vessels when seized; charts prepared by Professor Townsend for the United States authorities showing the localities in which'pelagic sealins; was conducted in Behring Sea from 1883 to 1893, and charts indi- cating the courses of some of the schooners, were put in evi- dence. These charts establish the fact that the seals breedino- on the Pribilov Islands, scatter over the waters of the Pacific for certain portions of the year atid are found in a compsra- 40 tively limited portion of Behring Sea during the months of July, Augub*. and September chiefly to the south of the Pribi- lov Islands, between these Islands and the Aleutian chain through the passes of which the seals enter and leave the sea. The Migration chart (contained in vol. HI. of the United case at I'aris) shows that the seals in July, August Stat BS — 8 67 68 SEAUNd OKOUNHS IN DKIIRtNQ HKA. and September of 1801 wore observed b}' the patrol veasolH of the United States to have been nioiitly iu the [)08ition above referred to. The Sealini^ chart shows seals reported and seen in 18!tl. (Also in United States Case, vol. III.) It coniaiiw « eirdo drawn around the Islands within a radius of about lifty miles. Inside of this circle appear the words " aeals within this area very numerous." Map of seizures 188(5, 1887 and 1880 (in the United States case, vol. III.) shows the locality of the seizures in the years 10 mentioned, and indicates that thoy were generally confined to the grounds where seals are shown on the charts mentioned above, as well as on chart No. 6 of the counter case herein- after referred to. The chart containing the cruise of the " Ellon," 1887 (United States ease, vol. III.) contains a plotting ofthe cruise of this seal- ing schooner, and shows the ground worked over wasabout 120 miles from the Aleutian Islands at the outside, and generally between the Aleutian chain and the Pribilov Islands. The chart ofthe cruise of the " Annie" in 1887 (United States 20 ease, vol. III.), contains a plotting from the log and is almost the same as that of the " Ellen." The chart of the cruise of the "Alfred Adams" (United States case, vol. III.) shows this vessel worked over the same loca 1 iy. The chart of the " Ada" (United States case, vol. III.) shows that in a comparatively short period, this sealing schooner, working in the locality above referred to, took 1875 skins. Chart No. 1 (counter ease United States, vol. 7.) shows the portion of Behring Sea which United Stutes and British 30 cruisers patrolled when protecting the seal ilshery under the moil us Vivendi, between July 1.5th and August 15th, 1801. Chart No. ;5 indicates the cruises of the same vessels between August 15th and September loth, 1801, From these charts it will appear that the cruising was conlined to a comparatively limited portion of Behring Sea The patrol covering chietly that ]iart of the waters from the Aleutian Passes to the Islands, and from the Islands south- east to the Alaskan IVninsula. Chart No. (! shows the position and number of seals observed 40 and reported on the patrol of the LTnited States naval vessels in July and August, 1802. It will be seen that the track of these vessels detailed to protect the seals was between the Alaskan chain and Pribilov Islands, and nearly all of the cruisers were within 180 to 200 miles of the Islands of St. Paul and St. George. Upon this chart also ap[iear circles with a radius of about 50 miles about the islands, insido of which are printed the words : " seals within this area very numerous," Chart No. 7 corrects the migration chart referred to in United 50 States ('ase upon one point, only, namely, the position of female seals in the spring and summer mouths along the coast ; I m HBATiINO GROUNDS IN tlEIIKINa SEA. 59 It HiifKciently iiidicateH, as well as tho migration chart first refcrrod to, tho coniparativi'ly liiiiitL'd spaco Imtwcoii the pass oftlio Alfiitiaii Isluiuls and tho I'rihilov group in which seals are round. In tho United States Case i)rescnted to the Paris Trihiinal, tho t'ollowing statcnieiit was made on hehalt'ot that (Jovern- nient ; — " Tho herd spreads along tlio coast in a long irregular hody, n. -Mr,. generally advancing northward until they lK'gi?i to enter ''"" '" 10 Ik'hring Sea in May or June, through the eastern passage of tlie Aleutian Islands, seldom going west to the Four Mountain Pass. But the last of tho herd do not leave tho Pacific Oceiin until -July. The cows, however, are practically out of the Pacific O(;oan hy the middle of Juno. A chart showing this migration has heen prepared from the (hita contained in tlie depositions herewith submitted." Another map shows the location at different seasons of a part of the catch of fur seals from 1883 to 1808, based on the log entries of five vessels engaged in pelagic sealing. This 20 map was i)repared by C. H. Townsond, Assistant U.S.F.C. It appears that the bulk of the seals were taken in July, August and September. That they were taken chietly between tlie Pribilov Islands and the ])assos of the Aleutian chain, tho catches being south and south-east of the Pribilov group. Another map shows the location at different seasons of the catch of fur seals in 1894, based on tho log entries of vessels engaged in pelagic scaling. This ma|) was also prepared by M r. Townsend. The bulk of those seals is shown to have been taken in August and September. The seals wore captured mid- 3Q way between Unimak Pass and St. George Island from 50 to (JO miles of the Aleutian chain and from 50 to CO miles of Pribilov Islands. Another map shows the location of the catch of fur seals in 1895, and is based on the log entries of vessels engaged in pelagic sealing. This map was also prepared by Mr. Townsend. The location of the sealing ground and of the catch of seals agrees with the last map. Mr. Douglass, a i)ilot in the reveinie marine service of the United States for 7 years preceding August, 188tj, was called by the United States as a 4Q witness for the prosecutions at Sitka, in 188G. He testified as follows : — " I have been cruising for more than 15 years off and on in So,,. Kx. Doe. Alaskan waters, always as an ofHcor or pilot, and have visited ^""' •'• ■"''■ the Pribilov Islands, St. Paul and St. George, several hundred times, and am perfectly familiar with the "sealing business as conducted on those islands and understand tho migrating habits of the fur-seal. From about tho first of May to abou't tho first of July each year the fur-seal is migrating north through the Unimak and Akutan passes to these islands for 50 breeding purposes." Mr. Alexander, an officer in the service of the United States Government, called as a witness before the present commission, testified as follows : — Q. "And from your observation you have ascertained, so h I84 li,,^. 4 far as you were able to ascertain, that from year to year they ' ' 60 SEALINd (IRUUNDS IN IIKIIRINO SBA. S,ii. \\. I' 11 111, p. -II. li. III! I!. -JHl. I{. '-".I-.'. lillr -Jll. I!. '.".i:i, liiM- (ii;. I!. :(iii, lilli- IS. 1!. :'.o7. \'\W "Ml. roniaiiiiul in Itoliriii^ Sea in Inr^e (iimntitiea in ,hi]y and August ? A. "Tliiit irt tlio niitiiral Hi'iiling grounildurini; tlioso inontlm in Holirinu: Scu ; tlicri" niurtt lie ii liirgis fjunntity of Huh on whicii tlioy livo in Mi'liiiiit;; Sou aromul the IViltilov lulnnds lit that time, tiioy heint; tish outing uniniuls. * # * * Tiio woi/.iiii,^ olHoor ot tlio " Corwin," in the case of the "Ourolena," oshilitiHiio.-* the fuot that tiio souling ground wub well known. When uhUoiI wliut iio was doing in the lino of hirt duty on the Ittt August, 188t), he said :— ^^ •'Cruiriing in Hohring Sea uhoiit ueventy-tivo miles 80Uth- aoutheust from St. (h'orgo's Isluml.'' This is where a good sealing ground is understood to be, where the "(^arolena " was uotually caught scaling, and where the United States cutlers e-xjieeted sealers to be hunting. Witness Hragg, culled on behalf of Her Majesty, respecting the catch of the '• .\[ary KUoii "' in 1888 (fully discussed in another place), gave evidence in n ference to the part of tlio sea he was sealing that year : " Give it to us genorallv ? •" " Between ■)4^' 30" anil 3.')" north latitude mid ie8° to A. 160" 30 west longitude. I v as always under the impression that that was the latitude and Ion .jitude we were hunting in. We had been up, I understand, oi' "board the vessel, to the north-east of St. George. Q. " When were you up there ? A. "When we iirst entered the ,-.a. Q. "And then you worked in whic'i uireetion? A. "To the southward." Captain Warren, one of the pioneer sealira, gives the lati- 30 tude and longitiiile of his hunting in 1886. From this record the soaiing grounds shown in the charts as indicated above are easily located. Captain O'Leary, a witness called on the part of Her Majesty, shows that he sealed on the grounds in 1886 in the " Pathfin- der," which made its catch in the waters between the Pribilov Islands and the Aleutian chain as described in the chart. In 1887, while he hunted a little more to the westward of the grounds which he hunted in 1886, nevertheless the catch of that season was made in comparatively the same portion of ^^ the sea. lie was not far from Bogoslott" when he started for homo. Mr. Ramla.so, a witness called on the part of Her Majesty, testified that in 1886 he sealed in that part of the sea in which he could see Bogoslott' on several occasions. He seuled he said probably 30 to 40 miles from it. Mr. Rop[ieii, a witiu'ss on behalf of Her Majesty, in his di- rect examination stated that in the months of July and August, 1886, the position of his vessel was between the Pribilov Islands and Ounalaska. That lie was about 55 north latitude and 166 and 167 west longitude. That he was there in July and that, at the beginning of August, he went further east, about 20 or 30 miles. lie had heartl of seizures at this time. 50 SEAUNa OROUNTiS IN nBIIIima HE A. 01 Illy and ) months ■ Hsh on ' [Blands * * B of the und was 10 lino of us aouth- (1 to be, id wlieio ispeeting cussed in ut of the 10 20 1 16'8° to iipression nting in. 1, to the the lati-30 lis record ed above Majesty, ■ Pathfin- Pribilov art. itward of ;he catch lortion of ^" irted for Majesty, in which 1 he said in his di- l August, IV Islands e and 166 ^^ and that, out 20 or In liin cross cxaniiimtion ho was further ([uostionod us to his ii. :im, oxperiiMico in 1880, and ho told N[r. Lansing tiiat sonietinios ho wont to the west, or nortii, or cast, or south oftlie [slands, and the souls he found no thicker in ono ((uartor than in another. Later on ho exphiinod that in all of this sailing lie covered only the '* sea about the Islaiids." Captain McKiol, a witness called by Her Majesty, referring li. ii7i, to the " Mary Taylor" in 1887, exiiluins that ho worked in the vicinity of 56 north latitude, 171 west longitude that season, [0 and when asked how the truck of liis vessel compared one year with another he said that " the track this year will cover the year before," gonerally. Cuptain Moss explained that in 1887 ho sealed at about K- :i'|^ 169'30 longitude and o6"15 latitude. That ho worked from there north towards Ounalaska, und tho last ho sealed was about 20 miles oifOunulasku. That in 1886 ho sealed about the same place. That ho sealed six times in Bohring Sea, three times as master, and that he generally goes to the same place, namely, 56 north latitude and 169 west longitude ; that 20 he generally made good catches. Captain McLouii, a chief witness for tho United States, inH'ii, , . ,f . . . , liiH' Hi. bis direct examination said : — " I used to find the l)est hunting about sixty or seventy miles oft", or even ninety miles." Asked " Are you speaking of the I'ribilov Islands ? " ho answered " Either the I'ribilov Islands or the main islands abreast of them." Cross-examined in regard to the entries in his log, tho fol- lowing statements wore made, which indicate that Mr. McLean 30 who claimed to bo the best scaling captain from 1883 to 1889, thought it important to find out and keep secret the positions where big catches were made. {}. " Had you any object in not entering in the log the num- i;. ^x,, ber of souls that you caught ? A. Yes." WufM. Q. " What was your ol)ject ? A. " Hecause if you have a log-book and you made pretty good cutchos your hunters or crew may get hohl of tho book and take the positions out of it, and going on board another ship thoy would give it to them." 40 Q. " Why did you not want to have that done ? A. " Because it might interfere with my business, I wanted to go there myself again, and I did not want to have too many vessels around me in the sealing grounds." Respecting his operations in 1880, Captain McLean in his cross-examination stated : — Q. " Will you be kind enough to state again the position i!. no, you were in on tho 12tli July, 1880 ? '''"' '•"'• A. " This should be the' position ; about 55-37, that is where tho seals were caught and taken in. Q. " And the longitude 167-8 ? 50 A. " Yes, sir. i}. " Now, look at that and see in the year 1885 on that same day, what was your position ? A. "My position was latitude 55-46, longitude 168-30. Q. " IIow far apart are these two positions, about? 62 SEAUNG GROUNDS IN HEIIRING SEA. IIIU A. " Tliis 18 OH tlie l-2th July? Q. "Yea A. " Tliere would ho iiiuo inilos (litlbreiK'c of latiliiilo probably about 22 miles (lifforoiu'o of loiij,ntu(le. (i. What would bo the actual dilfereneo as tho crow llios'' A. " About 20 miles. (J." Take iho 15th Jul}', 188G, and say what was your position .' A. " Latitude 55-25, loni,ntude 1G7-57. Q. " I see you cannot ijet tho same dav in exactly in 188;'), 10 but takino; botwoeii the 12th aiul 18th of' July, 1885, how far away were you from the same position 'i A. "The ditferenee will be close on to (iO miles Q. "That will be the farthest? A. " Yes, sir. Q. "Compare any day in August that you like, take the iirstof August, wc will say, how does your position in 1885 compare with your position in 1880 on the 1st of August? A. "it would bo about 22 miles dill'erenco. (J. " Can you account for the lact. Captain McLean, whv it 20 was that you seem to have got pretty near the same spot in the same year ? A. " Do you ask me why ? Q. " Yes. A. " Because I used to want to go over the same ground. Q. " And yon were catching seals there ? A. " Yes, i caught them before and if I did not get seals there, I would go farther along. Q. " ]?ut you did fmd thoin before ? A. " Oh, yes. 80 Q. " And you found them in the same quantities, ilid vou not : perhaps better in 188() than in 188;') ? A. " Ves, sir, in 188(! 1 Ibund more seals on that dav. Q. " And all through the year di)rettv good catch in July. Q. " And you got some .seals in August, too ? A. " Yes, r got some in August. Q. " Taking all the entries of the position ol' your ship in the year 1885, is it not correct that you were sealing in 188ti pretty much near the same ground as in 1S85 ? A. " Well, in 1885, 1 mad'e a pretty fair catch, and I thought -*"' 1 would go over the same ground again and seal where I did well in 1885. Q. " Then you did place a value on the position of tlieshiji? A. " That is the reason I kept that in this book. Q. " And you followed did you not ? A. " In 1885 and in 188(). " Did you go on the same ground in 1887 ? cs. that out successfully for two \ ears (I A. Q. A. Q. A. ' Why ? "■ Hecause I ex|iectc-':. lie answered, "Yes." He admitted that he liad taken over '"" 1,000 seals ln'fore he was seized on the :25th of August, and he was asked again : — '' In what locality did you get that 20 additional number of seals in the month of August?" he replied, " Well, I got them in about the same grounil." Q. " Vou caught them about the same gnnmd ? A. "Yes. Q. " Yon kept working around in about tlic same ground ? A. "Yes, sir." In 188!* this witness was again in the sea, when ordered out n. his position was about 170 west longitude and 55 north lati tndc. ,'Vsked " What were you in that position for?" he answered, " I was there to look for seals because tiuit is the 30 sealing gi'ound all over there." (J. "Of course, and you went wheri^ you knew tlie sealing i;. ground would be? '"' A. " Why. eertuinlv." ••". iiiif 'A7. IIm.I. Tliis witness also stated that he had never gone to Behring Sea witiiout linding seals. (\iptain Miner, a witness cidled on the }iart of the United n. Mr. Slates, who jiad l)een .sealing in l.'^87 in i5eliring Sea, "" '"■ stated that he had " heard of good grounds, or of good catches i;. Ms, having been nuide entirely around the islands in i'!l directions ^Q from them." On being asked " (0to 70 miles oil' Bogoslotf bearing soutii south-cast. This witness was asked in regard to his sealing trip in 1800 I!. ViS, iin< and whether he went to the " usual grounds,"' he answered in the atlirmative and that he sealed "entirely around the Islands" Asked as to another occasion when scalinsr in Ueliring Sea, w'nat time ho reached tlui sea, he answered : — " I 50 forget the date 1 reached Ouiudaska, but 1 reached the sealing ground or began sealing on the loth of .August." imm 64 SEALING GROUNDS IN BEIIRINd SEA. n. liiil, liiir :to. line !l. K. IMIi, lini' L'li. U. 7-'l, Mill' 10»i. I!. 7l:;P, llllr .Ml. I!. 7:tl. liiir :;ii in. Charles llackett gives the latitude and longitude of his catch which corroborates the idea conveyed bj' the charts for 1889 and 1890. The Captain of the revenue cutter "Richard Rush," which made seizures in 1887 and 1888 was examined before a Con- gressional cunnnittee ; lie stated that the seals pass this locality in going to the feeding grounds nearer the Aleutian Islands. Referring to where the sealers hunted : — Q. " The hunters intercept the seals as they go to and from the islands ? 10 A. " Yes, sir, that is what I understand." Captain Hansen, a witness called on behalf of Her Majesty, an experienced sealer, testified that he hunted to the south- ward and westward of the l^ribilov Tslan •* about GO or 70 miles distant ; after that, a little to the east ; the direction was about north north-west of Unimak Pass. This was in 1888. In 1889, he sealed southward and westward of the Pribilov Islands. Speaking generally, in 1888, 1889, and 1890 he had fished somewhere about tlie same place. 20 Mr. Crow-Baker, in giving the latitude and longitude of the catch of the " Triura{>h " in 1888, corroborates the charts already referred to as showing the locality where seals are cauglit. Captain W. E. Baker, an experienced sealer, called on behalf Her Majesty, speaking generally as to what part ot the sea he fished in, said " the first two years I sealed mostly to the southward and westward ot the Islands from 60 to 90 miles." In 1890 he fished the first part of the season to the westward and southward of the Islands from 60 to 90 miles. The latter 30 part of the season from 40 to 00 miles east. Having been cross-examined as to changing his jiosition from time to time on re-ilirect examination. Captain Baker cxiilained that in 1890 tlie ilL^tanee between the extreme points where he lished tliat season was not greater than 150 to 200 inili'S, and that in ordinary years he ininted over a sjiace west north-west and south-west ol tiie I'ribilov Islands, I'overing a radius of 100 miles; and that notwithstanding that the seals change their so-calied liaunts from ^-ear to year " as a matter of fact they are always in Behriiig Sea somewhere annind 40 the Pribilov Islands." Cajitain L. McLean shows lliat his catch of isH.s was taken westward and southward, and westward uftlie Pribilov Islands. Heconsi."> l'. to r).V30." In that vicinity he explains, the most liivourable groumls are 50 found. ■f I :l SRALIXd ilHorNDS TN l!I5in!rN(i SEA, (J5 Cai>tiiiii Warren suys that it is a coiimiou tiling for the vessels to meet on the sealing grounds and he nanu's (|uite a nniuber that he saw in LS^d in !5ehring Sea. Captain Magncseii speaks of the sealing grounds as being about 5.", 1(1 or If, ami lti7. Well known to be a good sealing ground. Having established that the sealing grounds in Beliring Sea are well known and easily defined, it is proposed to point out how plentiful the seals were in those sealing grounds. TO Captain Warren has explained the advantage of sealers having the additional mouths afforded by the sealing in JkdiringSea for those vessels which before "l88U operated on the coast, and has stated (ha! notwithstanding the " Thornton " was seized in 188. Til 18S7 tliuro is evidoiirc rogardini:; tlie iiiovcnioiits of 14 vcsscIhi. TlicM-c lire only four casos, vi/ , tin' " Favorite," " VaiKlerbilt," " Hlaek Diainoiul,"' and " Mary Klk'ii," in wliieli there is not evidence of direct iiiterforence in tlio voyaj^e by the seizures then hciiiii' made. Of these four, Captain Meyer of the " Vaiidcrhilt," who was called on behalf of the United States, remained in the sea until the llth September. His last lowering day was the 2lHh of Ani,ni8t. The " IMark Diamond " left on the loth of August, an exce2»tionally early date, and thouyli the icasoii is not stated 10 in the evidence, it is more than probable that her lua.ster was iniluenced by rumours of the seizures. The " Mary Ellen " left the sea on the lllth August. She had then a catch of 2500 seals, of which 1530 had been taken in the sea and on the day before she left took 80 seals. Having regard to the evidence given it is more than probable that this vessel had heard of the seizures tlien taking place. llcr movements were doubtless regulated l)y a desire to save her catch from contiscation. Tlie " Favorite " remained until the 27th August, and 20 started lionie on tliat date because the vessel was short of water and could not continue operations without going to some port for a sup[Oy. u. p. H. p. lilin, liiir 10. |{. p. 1120. tin.' !.■). H. p. i;i.")l, llllr till. I!. 702. In 1888 six vessels are mentioned. The "Viva," and "Mountain Chief," remained until tlie 2iid and 7th of Septem- ber respectively as previously mentioned. Captain L. McLean on the "Favorite" sealed until the 27th August. The " Annie C. Moore " left on the 20th August. The " Juanita " began her homeward voyage on the 20th, in pursuance of instructions given to her ca|itain by her managing owner 30 before she left in the spring, wliich instructions were based upon information given by Mr. Milne, collector of customs at Victoria, that there would, be no seizure's between the 10th of July and 20th of August that year. The only other vessel mentioned is the "Triumph," the date when she left the sea is not stated. Her last sealing day was 20fh of August. ,\s none of the mend)ers of her crew could be obtained to give evidence, the statement of her catcli is found in the testimony i)f Mr. K. C. Baker, a part owner of the ship, and he had no knowledge of the reason 40 why she left the sea. \i. 721. In I BSD there is a record of 1(1 vessels. Of these there is direct evidence of ihterfereiue in all except in three instaiu^es, the "Viva," " .Maggie Mac '" and "Beatrice." With reference to the " \'iva,"' she was under the command of Ca[itain W. E. Baker; by the 21st of August he had made a catch of 2180 seals, and left the sea at that date. There is no direct statement that he had at that time received any knowledge of the seizures, but it appears that hesjiokea num- ber of schooners in -inly and August, and having reference to jq the movi'inents of this master in other year.s, it is not probable SEALINO SEASON IN BEIIRING SEA. 69 that lie would have returned at so early a date unless he liad some reason to h'ar that his voyage would he interl'ered witii hy the cutters, and therehy cause the loss to his owners of the very good catch which he hail made. The " Maggie Mac" left the sea on the 25th August, hut lier master is dead, and the nniuher of her catch had to he ol)taiii(!d from the witness, Iver, who had no knowledge of tlie time on which she hegan her homeward voyage. Tlu! " Beatrice" did not hunt after the 13th August, aa she 10 lost three canoes on that date and spent some time in looking tor them. She had a crow of Indians, and they ajipear to have hecome so anxious an account of the loss of their com- rades that the captain decided to leave the bea on tlie 20th. The year 1890 was a stormy season on the whole, yet out of the IG vessels mentioned in the evidence as sealing in that year, six remained until the following dates, vi7,.: — " Sea Lion " 14th September. "Viva" 12th " "Ocean Belle" fith " 20 " Juanita " 2nd " " W. P. Sayward " Ist " Tenelopc" 30th August. " E. B. Marvin " 31st " It is, therefore, estahlished that the habits of the seals, and the weather ordinarily jirevailing, would permit the vessels engaged in sealing to carry on operations until well into the month of Septoml)er, if it was necessary, in order to complete their catch. Further it appears that it was part of the plan of the owners 30 of the vessels seized in 1886 to continue sealing for that period. In the case of the " Carolena " it was proved that she was supplied with an outfit of provisions to last for a long continued voyage. The witness, Muiiger, says, in cross- examination : — "I knew that there was lots of provisions. The ship was full of provisions, piled up so that you could hardly get round on account of them. There were great quantities; there was lots of food." 40 And he also says : — " In the sea the captain talked of going home about the end of the month (of August)." in the case of the " Onward " Mr. Spring says : — "The instructions (to his captain) were to the effect that he should proceed to Behring Sea, and continue there as long as possible, and to be back some time in the month ofSeptember, at any rate to be guided in a measure by (Japt. McLean, on the schooner " Favorite," at that time they'had agreed to meet in Behring Sea." 50 Referring to the case of the " Favorite " lie says, lie does not think there were any special instructions given, us he took it for granted that Oapt. McLean being an interested party i;. iiii;. I!. |.. i;7i, lilU' III. i;. |i. li.-i.j. I{. |>. liSIt, Mill' 21. U. |>. S(!4, liiii- 30. I!. :>. l.'ill'J, liiii' (ill. 70 SEALING SEASON IN UEIIKI.Vtl SEA. H. 1 1. II PL', line r>r). K. p. 402. liiii' l>il. K. p. 4111, line 50. U. |.. ii;l', litli' ."lO. I!. |.. L'34. i;. 11, !iiM(, I!. |>. TiKi, liiii' l.'i. would remain as long as ii()s,siblo. lie is certain lliat iio and Mol.ean had an undorHtanding to that etibct. And Captain McLean, speaking of the voyage of that schooner, savs : — Q. " W^'aa it not your inrention to remain sealin.r for as lone as the sealing would he good ? A. " Yes, sir. Q. " And as long as there would be seals? A. " Ye-s, as long as I would he, justified in sealing tliere. Q. "And you had enough provisions to enable you to do that ? 10 A. \ es, r believe I did. Q " And you could have remained until the l.>^t of Sentem- ber. ' A. " Yes, sir, if the weather would permit." It is true that this witness when called on another occasion in his evidence in ciiief state.-*, when asked whiit he would call the end of the sealing season in JJehring Sea in the vears 1886 and 1887:— " About the 20th August I would consider the end of the season. 1 used to leave the sea then " oa But a moment alter he gives an answer rather incon,si8tent with that when he says : — "The weather used to be bad and we figured on getting hack about the last August and the 10th of September. We usually outfitted for that time. Of course we could ren)ain there for a longer time, but probably the weather would not justify us in doing so." Later on in his direct examination he says :— " I have been there as late as September. Q. " Did you have .my sealing in September? oa A. " Yes, sir ; we had some. ' (-1 "Was that exceptional, remaining over until Seiitem- ber? ' A. " Yes; unu.sual." During the cross-examination of this witnes.- a deposition made by him at San Francisco on February 1st, 18!t2, was put in, where in answer to the i|uestion : " When do vou call the season's catch over? " he said : " About the 1 1th September." Referring again to 1886, it is proved tliat Cai>tain War- ren's fleet in the Behring Sea that year consisted of the 40 ves.-^els: the "Thornton," "Anna Deck," W. D. Sayward " "Grace" and Dolphin." Speaking of his plans for remaining in the sea, he says :— " My intention was to have stayed in the sea until about the end of September, and taking the supplies 1 had I am able to say that there was iilenty to have held out for the full season. It was so arranged." E. I'. ADner, a witness called for the United States, speak- ing of the outfittiiig of the "Penelope" for the voyage of 1887, says: ' * 50 " I fitted out in February. I expected to make about an 8 or !i inonth.s' crui,-^e. That is the usual length for which I fit out for seal hunting." SEALINO SKASON IN BKIIUINd SEA. 71 Q. " Wliei) you speak of a nine months' tTuiBi', m it in Marcli you usimlly tit out? A. " No, sir ; wc UHiiiilly got in l)y OctolxT anyway. Q. " At any rate in this year, 1887, yon fitted out for that period V A. "Yes; I fitted out in February." lu the evidence of O'Leary, master of tiio " Pathfinder " in 1880, the following occurs : — (I. " IIow long were you provisioned to stay and how long li. |i. .'ii-'. 10 did yon expect to stay in the sea when yon went there? Imm- ii. A. " 1 intended to stay until about the Ist tieptcmber.'" lie then states that he left on the 4tli August hearing of the seizures from the scliooncr " Sylvia Handy." In answer to the question how long ho intended to stay in 1887, he says:— " I intended to ^tav until about the Ist September." li- \<- -'!«. •' ' li in. And explains that he loft on the 17tli August on account of getting too close to the track of the seizing cutter. And further on, in cross-examination : — 20 Q. " Is it not a matter of fact that yon came homo because u. p. -.mki, the weather was rough V '""' "• A. " No, no." Q. " And that you could not catch any seals because of the North-westers ? A. " Wc generally get good weather there in August. Capt. Bucknam, examined in the case of the "Ariel," says : — " We gencnilly get good weather there in August." Q. " You say that whaling vessels had told you, that there was fine good weatVier in Behring Sea in October. 30 A. "Well, I have heard it on whaling vessels, and I have heard it for the last twelve years." The evidence therefore instead of disclosing a general idea )>revailing among sealers that the weather would not permit thom to remain longer than the middle of the month of August, shows that witli reference to the vo:-sels seized in 188G, provision was made for a much more oxtendod stay, and that the voyages were l)egun with the determination to remain as long as the weather would [)ermit. With reference to the actual wouther of 1886, there is satis- 40 factory evidence that it was a I'avourabie season, and that ojierations could have been continued to as late a date as we liave a record in any year. Laclilan McLean says : — Q. "And the weather was very uncertain in 188(3 and 1887, was it ? A. " No ; 1880 was an extraordinary tine season." Witness liragg, of the "Mary Ellen" says: — Q. " Was that a stormy August or just ordinary? A. " Just an ordinary August." 50 Ramlase, who was on the " Theresa," says : — "I know wo didn't have any real bad weather for the year : n. \<. am, it was what I should call a good year." lim4i). li. p. 'Mi, Mill' ;<3. 'ii 72 iEALINO SKASON IN lIKIIIUNd ,«1;A. If. |i. :m>, I nil' "i."i. li. p. 17L'; lliii' 41). I!, p. L'tid, line M, i:. |.. ■jii.i. lilM' I. liiitur on lio oxplaiiirt tliiil t\uy Icll aliout llic i^otli Au^riist, oil aceoimt ofbuiii^ rihort of pruvUioiid, uml tliat they did not liivvo any bad weather going hoiiu'. It may he urged, tliat nearly all the vesdela loft the .sea in 1880 at an early date in the month of August. Thin eircuin- stanco is easily explained. Appended to thin portion of the argument is a talile, showing the number of vessels reporteil in the evidence as sealing in the years 1880-1 8110, in I'eliring Sea and the time ami circumstances under which they left. \\y reference to 10 this table it will appear that out of the 14 vessels reported in 1880, oidy two British vessels and one American schooner appear to have finished their season. In every other case the vessel was either ceized or molested, or had its voyage inter- rupted by some untoward event. Ihu-e also it is important to note that a witness called by the ITiiited States to prove a catch in that year was Captain Meyer of the '• V'anderbilt," and he states that he remained in the sea until the :5l8t August, and that his last lowering day was the SOth August. With reft'rence to the vessels which completed tlu'ir voyages 20 undisturbed, i^ appears that the "Mary Kllcn " left about the 25th day of August, but this vessel had by that time made a large cateb, and was therefore ready to return at any moment. Bragg says : — "The caiitain said the first north-wester ho would get he would stt'cr for home." And in re-examination, speaking of the weather on the day they began their return voyage, he states: — "To the best of my recollection, a little after daylight in the morning, the captain came on deck. The wind was to the westward an I he told nie to put the wheel up and set the mam go sail and keeji her off. He ga\e the course, wlTu'li 1 forget now, but, he said to set the iiku'i/ tuiimnsl slin/ snil and that night we were down the pass.'' (^ " What kind of a sailing brec/.e did yon have that day?" \. " All the wind slu' could stagger on with." (J. " A favourable wind ': "' A. "Yes." It . I |M(I, lilM' III. Tlio woivtluT (luriiii; 1887 was also t'avoiiral>lo for soaliiijj. McICicl, wlio wart oil tlio " Heatrico "' and startod lioiiic about the last of July, May.i it was tiiio wcatlier when he left. Mocs, who was on the "K'ate" and left the Hca about the 2i'ith Auf^ust, says tlie sealing season was not over then. La(!hlaii McLean, master of the "Favourite," had 14 lower- ing days from the 10th day of 'Inly, when he iiegan sealing, until the end of the month, and between the Ist and 2r)th August had !!• lowering days. K) The •' Ada " had 2!t lowering dnys from the Ititli .Inly to the 2.')th .August inelusive, and the little " Triuiniih," sealing muL'h further to tlio westward, hunted 11* days beginning on the Sth and ending on the 2.')th of August. The reported i rhes also of other schooners during the time in which they were allowed to remain on account of the seizures, is coiubisive on the point that during that [leriod at least good sealiiig wi'ather prevailed generally throughout the sea. 20 Tt is also clear that the weather of 1888 and 1889 was very similar to that of 1SSG and 1887. Ill 1888 there is not a groat deal of direct testimony on the if. i'.Vi.m. 11. -i-i -ii iiiii."iii. liomi, very few vessels being mentioned m the eviaence, but it is shown that Capt. W. K. Baker on tho " Viva " had 1:5 lowering days between the 9th and 28th duly and his boats were out 19 days in August. f : I 'li It. |.. liiir i;.".i. I!. I liiii' . 711, 1". The operations of the following vessels indicate tiie state of affairs in 1889. 30 Tho " Mary KUen " bad Idlowering days in August between the Ist and 25th when she stopped sealing. The "Ariel" bail 1:5 lowering days between the 14tb and 30th of July ; but of these the ItJtli, 1 7th, 19th, ilst and 24th were not full days. On the :50th she lost a boat and spent some time in looking for it; between the 5th and 18tli August i;. m.. iiui.'i, there were 11 lowering days; but the 5th, lOtli, ItJthaiid 18th were not full days. She left the sea on the 18tb fearing seizure. Olson, who was master of the " Anna Week," says that the 40 weather in July was fair, especially the latter end of it and that the whole of August was good sealing. Tho "Viva" lowered 21 days between the Utb and 30th of I July, and 1) da^'s between 5th of August and the 21st on which latter day the return voyage was begun. The "Juaiiita" was seized on the 31sl of Jul,\. She began sealing on the 3rd and between that and the 30lh had 17 lowering days. The " Favourite " entered the sea about tho 13th of July, and from that day to the end of the month had 15 lowering 50 days ; in August there wore 10 lowering days up to the 25(11 when she stopped sealing. « s— 10 I;. |.. 7i:i. li. liih li. I Kill. III. 74 SBALINfl SKAHON IN llEIIKIXd SKA. I!. ,.. 7M. llIM' 1(1. linr .'Id. ('apt. fox uniR. '• Sappliiiv " liml :.'l lowrriiij,^ iliiys in .liily Mwoeii the i^lli aiie(l witli tlio spiM'ial iiKcnlion thai tli.'y should ivniain in the ,„ .scii for the whole tiiiu', diiriiii;- wliirli scalinir c.nld l.o siiuccw- I'lilly promriitoil. The contoiilion of(ircat Britain therctoro, is, that in arri- viniralan .■stiiiiatc of tho catch, which the vchscIs nci/cd or warncil would prohal.ly have made if not interfered wilh, it should, a.s a .starting point, he .lutei mined that tliev would" in each case havocontini.ed. sealing under the favoiirahlo'condilioim ol_ weather, proved to have heen existing, until an near tho end ofSeptomlier as would have been necoa.sury to aeeou,plish a natisfaotory catch. SBAMNO 8UA80N IN lllillRINd SKA. 76 1 ' ! '■ •s y .5 "1 .5 a ^ ^ « * it' i s I e 3 - 51 k i1_ = i ft ^3-1 ^' -i1 i i # 2 i ^ 5 .1 ;j - 7. . T t ■ = ?i := I 'f f S r - '' " '' " ~ii-' - - li J I I 1 Ji ^ i" i i '3 - t; - « S ."i so « C ^ ■*-• a 2 « B O o Si 73 E- ^ 3 ?i I - J, I- 76 SEALINa SEASON IN BUllUINa SKA. 4 00 00 ■B .a .9 « 8 i I .9 o" 00 h i J: i ~ -; *3 3 ri ri — , - — A /. :> :: i"' ^^i -^ ■- r I i i' 3 .S ■- t3 0) 5yo be en 03 O) u C "> a> J3 w J 1 i' i S 1 !^ r r ' ' '" "~ ~ ""^ ^"~. "T - ■ i : ': : •^ : ^ 1- ■ c l» •» » &■ J; .H S = i — -— — '^^— ■^_?_^ _-<;__<_^H S VT V, fi .;.i S i^ ^ n- |£ SEALINd SEASON IN I!E1IKIN(1 SEA. 77 .■r l*^ ~ tfc *j s 5f ^ it V r V3^ ~ 5b I. — +j - X il, ^ u. ■ l^ 1 ; ■' 71 - ' ?i ?i J. J ^■ i. --^ " r. -r T. v: - — t- ^ X -: 1^ — 5i ? « -r »- ^ = -r ; C"^ M -^ ?i -^ X r. — i^ ir •• -?- > X .r I - I- -^ ro -p »-4 •— ■ M r-< "■ ■ -x ; " : 2 ! = ift is J X 4 ii d — i ri r. « ti ?t :*; '*. * ~ I. 1- - -2 I- ■/ i •= £ P ui X .; " ^ d Tig >EAI,IN(i SICAHON IN IJIiUKlNii tIKA. <« fcfj n •n 8 tl3 eS *(.^ — — T :/: ■^ 5 2 ij n ,■■ £ 'i i- I' •' 1^ 5, MI'7ril()|)F()l!('()MlM^TIX(; THE KSTI.M ATKI> CATCH. Ill I'stiiiiatiiiL;' tlio iiuiiibcr of skins wliicli would |irol)alily Iiavc! been taken liv tlir sclioonors seized or wai'iied in the dilleri'iil vrars, flie C()iriiiiis>ioiiers will donlilless iiaxc re<;ard to tiie inovc'nients of tlie otiier w.-sels wiiost' vova^Ts are mention I'd in tiieeviden<'e. In making this eon 1 1 larison it must lie lionie in niiml rel'erreii lu, a> a thai li.d hdiansni canoes did nut. in I he years rule, fake .!s nianv seals as wiiite men huntiiii)- in boats, it is sliowii that i. >ats took about one-tliird i lime 10 liiaii an ei|iial iiiiiiibia- or<'aiioe.s. Ii is |iro|iosed at tliis siasj;e of the ari;'nment lo ixaiiiiin' (lie testimony witii regard to tliti inferenees w hieli it is siilimitted, siioiild be drawn therefrom, ly tlie eoiuinissioneis in the ealcnlatioiis wliicii it is assiiiiM'd iliey will enter Ujion in ihc eoiisideralion of tliis liranch of tlie ini|iiiiy. it is ronteiHled bv (ireal l^ritain that in b^«(l tlie '• Marv Klleii" is th. u\i\\ vesse 1 of whieli it can be stated with certainty that she completed her \-oyaji'o without interfereiiee oi' aiiv kind. 20 The " Vaialerhilt '■ was also sealiiiu' until late in tl k; season year, but it is i|ui ti' clear from the evidenee ot tlie master that _ in her ease rhat he was well aware of the seizures which weri; then beiiiii' made. He now says that that eireuinstaiiee did not trouble him '.nucli, as he exjioeted tliat if seized the ( uni'i'iimenl of the I'nited States would fiillv .eimbiirse him tor his li Such a ■ilatemeiit cannot he accepted without a ;Teat deal of iiualiiiealion. In miy event nudetails of his ih ca tell are ii'.veii. lau' is ll lere all', record of the |ierf'ormaiice of the several hunters employed upon his vessel. There is. :M tbereloie, no means of detcrmininir at what lime he rcaehcd ihc sealinsj; ii'roiiiuls, or duriny- what period he continued to »l' ■rate there. l''or this reason the evidence lelatiiic- to th alili of ilie •• \'andcrl)ilt '" does not disci 'se any sniisfictory lata upon wliieh a ealciilatioii can be based. The record ot' the "* Sayward " is also incomplett' as has 1 leeii howii beloro. It will perliap- be ari;iiod that in dealiiii;- with the voya>i'eid" the ■■ .Mary Kllen, " some allowance should be made on aeconnt of the statemeni of ihe witness I >ra,i:',i;', that her catch — '2'6'.^^> 10 skins-wasan e.veeiitionaliy larueone. It may have so appeared to him, but a eomparison ol'ihe result id' her sealiiiL;' trip with that ol other schoo Hiers shows that the result of tl le voNiiye was no t as I'ciiiarkalile as he coiisiihu'ed it to b for iiir-tance, (.'apt. ."^liep ard, cxaii lined helore a larliameiit- aiv ("oni.nitlee on .Merehant Marine and I'isheries, >ays : — "(^). What is usually a fair catch tor a ve.sse! of lln^ deserip ti(ai ol those now being lilted out?" 7U li. is;ii;. ivl i so MKTIIOl) von COMPUTIXrt Till! KSTrMATRl) CATCH. " A. It viirios very inuoli iKfOi'diiig to Iht- six.e of the civw ; about from 1200, to"2500 s^als.'' "Q. Siiv 2000, would tliiit lie a fuir avorfigt-? "A. I would Hay 1800." The "Favourite" in 188t>, wllli an outfit of 10 canoes, although her voyage wat^ iuterruptt'dhy the eutter, took l':'.74 seals ln'tweou the 7th -luly and the 15th August. In 1887, the " I'athlinder" with a crew of 6 houts, captured 2200 hetwcen the 2!^th .Tune and the 17th August, and would doubt- less have added largely to the inind)er if she had not then been 10 frightened from the ground by her proximity to the track of the cutters. In the same year the " .Mar}' Kllcn " took laliO seals between the 18th July ami the IDtli August. The " Favourite" took 18:54 between -July 10th and August 2tith. In 1888, tin- " .Mountain Chief," with live canoes and a stern canoe caught I'OO from the 1st of August to the 3rd or 7tli of Seiitember. So in 1>, the " N'iva " caught 2180 with six boats, between tlic titb Jidy and tlu' 21-.t August, and in 18!i0 her catch was 201;') between 7th duly and 12th Soptendier with six boats. The •'Miiuiie'" in that yt'ar also gut UiOO with oq eight canoes and one boat bi'twceii the nuddle of July and the 2.-)th Autiust. l!.|.. i:;si. In that part of the argument which relates to the duration of the sealing season in Behring Sea, especial reference was ma^7as to ISSti. From the description which he gives ot his diHerent positions, it is clear that he was in the locality over whicii the cutters were cruising, and the reasonable iid'ereiice from hi.i statement that he tried " lasw ground every day " is that he did so to avoi Viva " maile a smaller caltdi, but upon ccmiiaring her rcc(.)rd during this year with that i>\' the same vessi'l, under the same master, in the two next siu'i'ceding sea- sons, as well as with what was accompli>hed by other vessels in 1X8M, it imiy lai:i\ he as^unled that there were I'ireumstancos comieeted with ("apt. HaUers voyage not nu'iitioned in the evideiu'c. which would render it unlliir to desigmite his as an avd'ayje catch. It is beyond iloubt that in 1SM>, every vessel engaged in scaling was interfered with either directly or indirectly by the METHOD Vi>\[ ((iMriTlNil llllC IlSTl.M,'. i Kli i^'i'Cil. HI Kciziiiv^. 'I'licrc is no direct slatonn'iit to tiuit rilVct rciiaiiliug tlic " MiiiTirio Mill',"' Itiil liii' tli(MH'as()iis iiK'iiliciiicd uiuler a jii'o- viouri iicadiiii;-, no a~~umii',ii)ii can I'c made niKin tliat i;i\.iuid. Tlio " \'iva "' siH'Tiis til, would aecoiniilisliin a year in which all the physical conditioiiB were snch as to facilitale a h ong and [M'osjieroiis voN'age tor evi'iy ^tdiooricr in the sea. It is, therefore, siihiuitted with contidonce that the >• Mary y well he taken as a leiiivsentafivo ship, and that UMi ma K tlie record of her operations in I8SG can he relied n]i furnish ih Inrmslnnn' a lair iiasis ii|ion wiiuli to estimate the nninber of skins which could ha\e hecii taken hy aiu' schooner well •JO manned ami cijiiipped in any ol the years in question. In pursuance of this pid[H)silion the toUowing additional infei'eiices from the evidence relalint;' \o that voyage are suh- niitted tor the consideration ol'ihe Comniissioners. 'I'he " Mary KUeii "' was engaged in sealing from the -Sth June to tlie iiflli AngnsI, ISStJ. h'ive hunters wei(i employed. In the month of .\iignsl these Imnters sealed on every day ^i- '■• i' '•' except the 5tli, tJth, IJtii, loth, Utii, Kith, I7th, 18th and :>-2nd'. There were also certain other days, namely, the lltli. lath, 1:. p^ lv, 1. SO :21st and 24th on which four of tlu' hunters were onl only part ofthetlay, hutinasmueh as the hunter .lacobsen worked all day on the l.'ith, and half a day on the 1 Itli. it ap|.cars that these days were not allogelher unlit for hiinrmg. The stern boat was also out oi\ the loth. The number of scabs taken in .\iignst by tin' itnrividiial liuiiterri is giw'ii in the o\idencc. and nia\ be ^ummari/cd as follows : — l)e l'"ries, huntiiiu' I ) whole iiiiv^ iialf ilV^ look •220 40 .lacohsen. 1') whole days, 4 halt days 17- • liilian, l(i \ d, |jorcn/.o. la do [ Dillon, U; do 4 2:'. I !t..8 In ibat nionili the steriidioat took 17. hnmiiig on lln' 1st, nd. Itb. (iiii. Mb. libb. l-.tb. I.Mb. I'.Mh and 2 1th. This nil nd>er is iK)t taken into account in the calciilalion u hich imincdialely toUow: 11 82 METHOD I'lill iHiMI'riIN(; TIIK KSTIMATEU CATCH. K-pi. I'll: I! |.. r3», 111,.- iri. Tlic |iriK'tic';il (li'(liicti(iii to he made iVnin lliesi' facts may bo stated thus ; — The "Marv Kllen "' liad .'i men wild were in tlie sealiiin' watoi'rf '24 <\u\s ill Auirii>i. Tliis wuuid he etiiiai to diie man tor 120 dayji. Hut there were -llA days in wliieli no Ininting was (htiie. Ii'aviiig tii'^i aetual worivin^' (hiys i'or one man. Diirinn' the.se (IS^ days, HoS si'ais were tai). oi! tlays would therefore rejiresent the days estimated to b lost by the " V irolena. Deduct from 124 the y:l lost days, tiie remainder is 71, whh'h mulliiilied hy 14 gi\es 11^4 seals as the take of the " Carolena " in August on the basis of tlie " .Mary KUen's "' cateh. It may be argued that it does not follow because the "Mary Mllen "' took a large numljer of skins, that another vessel, say the " Carolena." would have been e(nially fortn- 20 iro nate. It will he shown, however, elsewhere, that the " C; leiia " and each of the iither schooners seized, were at the very moment of rheir arrest, among the seals and were actually engaged in taking them in large numbers. In this eoimec'tior. the evidence of Caiitam Clarence Cox becomes of gii'at innioitance, (I. " ^'on well' asked hy .Mr. Warren as lo whether th :50 was not a goo;l deal of luck in this matter and ])ailieularly •hether there was not u goo' d d eat (leiii nded on the way the caiitaiii handled his men, and you said there was'.' A. Ves, sir. *l •• .Vssuming that you have a captain who knows how to handle liis men. there is not much chance about ii, is then'':' A. 1 consider the chances are wiiciji, r ilic captain stays |o among them and gets them or not. (4- "If you once find ^eals liic capraiii's duty is to get among rhem'r A. V^ t^ •■ If you do that, is there much ciiauec about it '^ A. No ( liuiice whatever. Q. " Why': A. It you >tay ainong ilu'iii you will get them. * * * ii. " Coining down iu did noi liml tiiem '.' A. I never dire than the total numhcr nf peojilc engaged in hui'ting the tur seal in every ]iart of the world." And al-ii to an extract from the ease of the United States before the Paris tribunal : — "Prior to 1870 all the fur seal skin.s, save a few thousand, r were maiketed and sold in (^hina, where the skins were .10 plucked, the commercial value beiui;- about five dollars in that country and something less in iMimpc, but, the supply being so irregular, the market price iluctuated, so that a cargo of skins was sometimes sold as low as tifty cents per skin, llnssia y, also received a [lortion of the sup]ily obtained by the J^ussian- f- American Company. A tew skins, howevt'r, were purchased in England by J. M. <)[i[icidieim and (.'(Unpany, and in the fifties, New York also received a supply from the Russian- American Compimy, i)ut it was not until the lease of thi' I'riby- loif Island to the .Maska Commerciiil Company in 1870, and ;>,) throngh the united efforts of that company with C. M. Lamp- son and Comiiany that the seal skin industry received the impetus which has built it up to its present ''ondition. At the same time, the methods of dyeing and dressing the skins were perfected through the same agency, and seal skins made an article of fashion in general use in F.urope and .\inerica, and Ix'came much more \akud)le as merchandise." •• In the present, as a result of these cndcax'ouis ano voii mean, .\lr. I.,ubbe, that the London piicc is the g' \cruing pric<' ? A. Yes, sir. ' >>. " \i)U mean (he prices in l,i>ndoii govern the uiarkel ;,(> value in N'ictoria? A. ^■es, sir.'" 83 l>7ii. IS?!). r.s. |s!i: ■ s. 84 VAUIK 01' SKA I. SKINS. K ISO:;. ls7n. li. 1S71. li. issi, Tlii'iT \V(MV several tiritis I'ligiiuiil in Injiiig skins iit Vio torlii, and prior to 1SS7 most of tlir |ii'lajic scalovs soM tln'ir skina to those buyers, luit in ISST tlie owiiri's oi' sealiny- vessels began to sliiji their skins direit to Lomlon. ami this |iraetiec beeanie nior(^ eoniinon eaeii yeai' It is sulmiiltoil thai in arriving: at \\i" priei' ol' skins the C'onunissionerr- shoiihl adopt tlu' nel price whiili rould jiave hcon obtained by shipiiiui;' to London. It is rjear that the sealers liad a riyht to shiji their s^-oods to the most jirolitable market, and when it is shown that they were in the hal>itot'10 doing so, it is not an nni't'asonablc jiresiimption that tliey ' would have sliipjied the steals eanght, and (o be caught, in the years in ijuestion to that markcM. i>i;i. For instance, Nfnnsie shipjied skins lo London in 1888, '[S^'^ and 18i"0. Warren shipped to I'^nglaml in 1887. Hal! and (ioepel shi]iiieil to I'aisi'land in 188^ and Richard Hall swore they intended lo do so in 1881). LnI)bo says : — " Q. In the year 1888, who, besides yourself was purchasing 20 skins in N'ictoria ? A. That is pretty hard to find out. 1 think then' were very lew skins sold here that year. They were all shipped by the owners. * * * With regard to 1889, there were very few bought hero that year." Prooeoding to consider the evidence with reuard to the iiriee obtained for each of the years in (pie.stion, it is claimed that in 1880 skins were worth 'S7 eaidi. I! 111. Munsie states that in the tall of 188(; he sold the catch of the " I'athtinder" to .losejih Boseowit/, ,onc of tlie Victoria l)uyers, for §7 a skin, and that there was no reason wliy he 80 should not have sold tlu^ eateh of the "('aroleiui"' at the same price. ITe was not cross-examined on this (pic-tion. Lubbe, in his direct examination, was aski^d as follows : — '• (1. Will yon tell us how many skins you purchased at A'ictoria in tlie year 188(1, and what was tlie avei'age priee paid? A. I(1.7'.i7 seal -kins in salt, average price, 84. 81)^." On eros.s-examination he was asked as follows : — "(J. In 1880 you have given us that you purchased ltj,7!)7 skins? A. Yes. "Q. r.nt of that only 2;5'.» were BehringSea skins? A. Yes." 10 " Q. What did you jiayterthose IJehring Sea.skins? A. 87.50. .\nd again : — li. rv.id. " (j. Wiiat piii-e were Hcssingei' and Company, (who were large buyei's ai Victoria) [laying that vear (18^0)? A. From SO.'aO to"§7.'" " Q. The coast cateh comprises a vvvy large jiercentage of grey pups, does it not ? \. Yes, sir." " Q. ("an you tell ine out of that lot of 10,7!i7 .skins, how many grey I'Ups there were? A. :J!t7"J " it was shown that the grey pup skins were worth very much 50 le.-^s than full si/.ed skins, about SI, 50 each. I!, issj. line .JU. If. IS'.lll. Illl. IK. VALUE OF SEAL SKINS. 86 For 1^87 the sum cliiimod is .?0.50. Muiisic says that in 1887 hn sold 2820 sln for the eases arising in 1887, he put the i)riee of the skins at 85.50, hut at that time he had no returns from his shipments, and thcretbre, inserted in tho claims, tho amount that some of tho Iju^'ors were olferiiig at Victoria, viz.: — >!5.50. It may l)e noted that George IJyrnos in the case of the "Triumph", 1887, claimed $8 per skin. ii;(. iM' l:<. S7I. 1S7I. '■ . m m 40 For the year 1888, the price claimed is $12.25 per skin. |. ishk. Munsie sold tho catch of the " Pathlinder," and netted .S12.25 in London ; see also his declaration in support of his claim for 1889, where the account sales for 1888 are inserted in full. In 1889 it was shown that the skins wore worth .?11.00f ; I!, isnn, see evidence of Munsio whore ho says: — "sold 2326 skins ex-schoonor "Viva", not received, §11.00|. In 1890 the same witness says, that skins wore worth i-. isc.,, between §15 and 816. •'""!• 50 In 1892, skins were worth $14. liiM't. SI'KCrAf, (T)X|)ITI(>NS AK1"K(TIX(} VAI.I'K (»F TIIK \i;s.sKLS. i;. |.. 17'-.. lilM Cll. [ii iirriviiiLC iit tlic sums tu Kr iillowcil iniilcr llic lii'iul nf \('sscl-< s<'i/.('(l, ilic iilt.Milinii (if tlic ( 'oiMinissiiiiicrs (Ills siiinMiiidiiiu' Ilic liiiildliiu' lie the IC SpCClill Cd lulili Vl.l is diivclcd t(i ll and iiri|uisiii(iii dt'tlu' sldps in (jiu'stidii. 1 1 is iidinitlcd timi in I lie y-<' ^ IHSd and l>;s7, a snddon and viM'v cxtciidi'd intci'tst in tiic^ scalinij; industry was a\va!<('ni'd, and many iici'soiis woro I'ound anxicui-i to (jiii,''aaid little iw no atlcnlidii to it. 10 Tins state dl'aiiiiirs was caused liv tlie I'eiidi'ts dt' tia which had atlende(l the vovaiii'^ ot' certain vc: sutross in lU'lirinu Sea in the years immediately iirt'cediuff who were I litis desii'ous dl' enira!. I.SSO Hit tl le iiersdiis lUi;' in the sealinn' occii|iation. were hroiiicht taeo to face, at that time, with a inactical dilli- ciilty ot'ijreat iiii|idrtaiu'e to them, viz., tliat no vessels snitahlo for tlie pur juiriKise were Idr h- in British t'oiiiml) Tl le result was that everyone wh.i was then in possession of a soalint;- seliooner f'oiiiul that his iirdpeity was in demand. For instance. wlien til Wll s lii'dUirht over roiii upaii, her owners OQ were almost immediately ainu'dachcd hy a w.uild-lie jiurchaser. wlio dli'ered 89,0011 for her, hut .\lr. ( so with every o These persons h;i iray rt't'iised to sell ; and hodiier at Viet ona. tlier owner of a sealing' etermineil to empldy llieir vcs-t'ls in seal- in>. iiid tlu'V were cdiisetiuently not in the market. Tiu' ship re(|niro(l enuii d have heeii huilt at V'ictor^a ; ii lint of fact nianv ot tlu' vcsssels soi/.e( d eith iieeii (n'iirinall\' c(Ui- stnu'ted or reluiilt at that port, hut there were many special conditions aflectiiiii" the imildiiiL;' ot' vessels there, which largely iiiereased their cost over what if might have heeii had the same g(j class of sliips lieeii const riicted in a phee where other eoiidi- tioiis prevailed. The witnesses called on liehall dl' (Ireat iiritaiu make this very plain. They all agree that lalionr was scarce and dear, $4 and -So a day being the ordinary rate ot' wages lor a ship- wright. The witness. Walker, who had an extended expe- rience in that hii-iiicss, says that in l.SHl'i, in N'ictoria, in conse- quence of the scarcity ol \v(U'k. .-Iiijtw rights had ja'ai'tically to 111' imported tor every joli ami left when the particular piece of Work oil which they were engaged for the time being was ^q linished. This fact resulted in a particular increase of expense wliioh is worthy dt'note. The witness says that in large places whore u quantity ol' shi[iliuilding is in ]irogress, ordinary <'ar[ienters, whose o.agesare much K'ss per day than that t)f shipwrights, may be employed to perform miudi ol' thii work u|ion a vessel 111 (ler construction. In \'ictoria, however, at the time in ijiies- lioii, when a builder ( iupld\ed a .shipwright, he was (ilili^'t'd ' 8tJ ' SHKCIAIi CONDITIONS Al'FKCTIMI VAI.Ul: OF TIIK VEKSKI.S. 87 tn l<('o|i liiiM at woik ('(iiil'miiall) ni' lose liis sfi'S'iccs iilld- f^'ctliiT. Till iis('([iifiict' wuH tlial thesi' sUillcd lalntiircrs lpert()rim.'cl not only wluit in'ita'mi'il jiaitiiMihirlv to flioir trade, l)iit also (lid all tlio work upon tliu sliip, in ovci'v iiistume the |{ |,. 1711, tiecdiiiil liir \\air<'s Ix'int;- iiicii'asrd aiTorduinly. Anniii, liiiiilii^r was verv I'Xiicii.sive, contiii!i' as uiiicli iik $\-l 1.'. !■■ iT". ' . Iin>- .VJ. jier thousand as coiniiarcd w itii !?*<, the in'irc at the |ivest'iit dav. Ail tastt'iii nil's were 1 in|i(irtc(l iVdin llie I'nilcd States and lo paid a iiiirh rate oC duty. It is true that ihcsc articU'S wen lor Hiilo in otlier parts olCaiiada, l)Ut inthoi^e days (■oniiniinication het\V(!OM British ('ohiiuMa and Mastcrn ('an;ida was rare and difKcnlt This inarl^i't was littk' known and in pracliie iu)t resorted to. Siiip ehandleis kojit no ('anadian goods in stock, and the result was that al»>nl :!0 per cent of the cost of a ship l; was madi' np of art ides ]iayini;' a duty ranuinj;' tVoiii ITA to 2o per cent. !■■ IT Au'ain, t'niin tin act tiiiit onl\ a IV'W vessels were huilt at sneli int"re(|Uciil intervals, tnucli I'xpense was incurred in matters f)t' detail which would not happen at all ninler ordinary circumstances. ' re.> h modi d t s were prepareil tor e\ery ship, 1;. |.. an an 1)V til inie was lost and expense ei tailed in prcpariiij mod CIS d moulds, and in waiting tor their inspection and ai>pro\al V prospective purchaser. When all this was(h)ne, siiitahh 30 pla>'es lor wcu'king out details had in each lase to he specially arranged tor, and generally all the preliminary stt'ps in con- nection with the I'oiistruc'ion were taki'ii under eircuinstances of eonsideralile inconvenience, and with much more than ordinary dillieulty an, vessels of the class used lor sealing could not have linn huilt at \' loria for less than about si. TiO a ton. i^:i iii:a InlH in:!; i I Tlii'relore, ('apt. Sieward. .Mun-ic, and otlicr> who \\ere 1;. |.. mi. desirous ol ac(|uirim;' vc^sel le'raii to cast bout lor a diU'ereiit market in which their jiurchas )iild he imuK' and IllM l that thev made HUiries at lioil those points. It iscert'.iin that by the course adopted they aci|uircd their vessels at a price li'ss than their actual cost would haxc been if huilt at Victoria. Munsie says it paid him to bring vessels ur(Uiud in lhis\va\-. 1;. ,, an 50 Sicward, in his examination, states that it would have cost more to hiiilil them in Victoria at that date. 1;. |.. I.- llll.' In. IMAGE EVALUATION TEST TARGET (MT-3) // ;^ .5.% ^*'. 4^ '^ 1.0 I.I 11.25 lit lU u 1*0 ■uut. 14 U4 ^Sciences Corporation 33 WIST MAIN STRUT WItSTIR.N.Y. 145M (716) 173.4303 I 1 ;\ I 88 i;. |.. 1(17. IIIM' II SPEOIAL CONDITIONS AFKECTINO VALUH OK TIIK VESSELS. Turpol, u shipbuilder of exporicuo, ..ny\u. ..n his trade at V ctona, stated that tho cost (,f procuring vesHoIs in the way reterred to, was h,9s by the vahic of the outfit at Last, say Tho fact therefore, that men conversant with tho shii.,,inir business and having tho means to pay cash for what they wante.l njter nuimry and consi.Ieration, decided to buy vessels in' A ova bcotia and to bring them aioun.l the Horn to Vi..toria at a very large cost and considerable risk, is, it is submitted, con- elusiv. evKlonce that vessels suitable for sealing purposes uuld ,o only be obtained at Victoria at pric-es which at lirs sigh, n.av appear to be high. ^ " CONCrSE STATEMENT OF FACTS RELATING TO EACH CLAIM. Under this heading it is proposed to summarize the evidence relating to, and to tabulate the ditterent items of claim proved in each case. IHHU. TUB " GAROLENA. Claim No. 1. The " Carolena " was a registered British schooner of 32 tons. The schooner was originally built at Port Franklin, in the 10 United States, and was registered as a British vessel in the year 1870, but although at the time of seizure she was an old vessel, as a fact, she was practically rebuilt in 1884 and was as good as new. This is shown by the evidence of Robinson, who states that r. p. ivj. "in 1884 he lenghthened tlie vessel eight feet, and increased her ' readth amidship about twelve inches, and that at that time they gave her new rigging and a new outfit ; and also a new set of spars." lie says further: "that when this work was done, the 20 'Carolena' was in pretty good condition ; that she was a nice handy little vessel," and proceeds : — Q. " Was she worth more than a vessel of the same length n. \,. m\. a new ves-sel ? A. " No, worth as much, anyhow. All parts that I know of her were sound." Q. "How old was she? A. " I don't know." Q. " If she was twenty-five years old when you lengthened her would that make any difference in her value. 30 A. " Not if she was sound." Q. " When you did the work on her did you also put on a a. \:>7. new deck? A. " Pretty near a now deck." Sabiston, in speaking of the alterations made to the n. p. .mki. "Caroleim" in 1884, says, about t\.-o-thirds of the hull had been renewed in the lengthening of the boat. The deck was also renewed in the same manner. She had to have new rig- ging, sails and spars, because the vessel was much larger tban she had been. She was in very good condition. 40 Q. "Well, would you compare her as an obi ship or as a new ship? A. " She was compared with a new vessel ; she was nearly all new." (J. " And you think that two-thirds of her hull was renewed? A. " Yes, sir, fully two-thirds. Q. "There was two-thirds of the deck renewed? BS— 12 89 ;P 90 TUB CAIIULENA. K. -Jill. Ilii« 40. U. I71K, IilH> Ik). I!. 17111. liiii Xi. A. "Yc8, dr. Q. " Any new ribs in? A. "The whole new part. Antl he tiirtlier sayn : — " Nearly two-thirds of the sheathing waa renewed, the deck house, and she hud now spars." So also the evidence of Turner, a witness called by the United States, is as follows : — Q. " And as a matter of fact, if you had lenethoned the vessel, and had put new frames in her, you would practically be making a new vessel, would you not '! 10 A. " "\ es, sir. Q. " And would not the olije''tion then he overcome? A. "That objection at all events. Q. " That would sultstantiallv be a new vessel, would sho not? A. " It seems to nie she would bo a new vessel. And further on, after expressing the opinion that ho rather objects to the lengthening,' of the vessel, the following question and answer appear : — (i. " And the person who had seen the work done and who had actually done it in that particular instance would bo a 20 better judge than you would i>e ? A. " Yes, sir, decidedly, if be was competent." |{. He liii.-S. l.V.i. liij. iiir ;ta. On the (luestion of the value of the "Carolena," therefore, it may be assumed that in 1886 she was practically a new vessel. The evidence of the witnesses as to her value, esta- blishes that she was in that year, worth at least 94,000. Munsie, says, that 84,000 was the fair value of the vessel, that ho paid for her in 1885, .*:{,800, and put repairs on her after he bought her; that after she made her spring trip in I88o, the Dominion Government chartered her for Dr. 30 Dawson, to make a surveying tri|> on the coast of Vancouver Island, and Dr. Dawson spoke of buying the vessel for conti- nuing that service. lie further says, the "Carolena" was in good condition when she left in 188f!, and that in that year there was a demand for vessels of her description, as the sealing interest was beginning to increase. RouiNsox says that in 1884 or 1885, in his opinion, she was worth >?5,000. Sieward states : — " I am not acquainted with the " ' Carolena.' " 40 (i. " But from your knowledge of vessels, take a vessel in 1887, suitable for scaling, and of the tonnage of thirty-two tons or thereabouts, would you consider |4,000 a high or low valuation ? A. " I should consider that a very reasonable valuation, considering the experience I had afterwards in buying vossele. I will say that in 1H!»1, I paid 1^3,200 for a vessel about thirty years ol»l." William Turpel says : " I know a little about the ' Carolena,' if she was as gocjd as they say, I should think sho would be 50 worth about «4,000." TUB CAROLKNA. 91 Walker says that after tlie "C'aroleiiu" was longtliciied, u. 177, ho moaaurcd her for rej^iMtratioii and made a tlidrougli ex- amination ; she had been ropnired and simu' altcratioiiH made. " I thinic she wan made lurijcr ; I am pretty sure there was something in tliat line ; when I hi>i;;aM to meamirc lier, she was fitted up very nicely. I think she wiis then in the hands of the pilots liere, anil was extra well fitted up at that time, llcr eabin was very nice. She was fitted up specially oil account of the pilots who used lier as a jtilot boai. ft 10 was just after she was fixed up that I measured lier. I could not say much about her lines. She looked very well above the wator line. She had a very good deck, there was good work done on her the time she was repaired." Q. "From your knowledge of the 'Carolena' iiiid your know- u. ith. ledge and experience of sjiips and the construction of them, what would be a fair value for that vessel when you saw her? A. " 1 should say «4,000. Q. "Could you have built a vessel like the 'Carolena' at that time for that amount ? A. " Not with everything on board of her : anchors and 20 chains, and everything of that kind." Alexander Watson : Q. " Had you any kind or form of opinion as to her vahte ? it- "<«. A. " Well, I could see what the vessel was like, but don't '"" '" know as I formed any oj>inion as to her value at that time. Q. " But from the knowledge that you then acquired of the vessel what would you estimate her value to be then ? A. — Of course, the value varies, but I can give a general valuation ; it would be aV)0Ut $4,000, or perhaps a little lower, but somewliere about that, I mean her market value." 30 Orlando Warner states that the ves.sel would be worth in n. mn, his estimation $3,800, or $4,000, just about there. ''"" '" John Sabiston says, opeaking of the "Carolena" alter she u jki. was lengthened, it would have cost $o,000 to build her aa she then was. J. D. Warren, a num of great experience in sealing matters, it. •j.it. says he knew her when she was in possession of the pilots, had seen her frecpiently, and is able to speak of hor ritrging and build. She was a very good vessel, small size ; oi\e of those sharp built seagoing models. She was considered a very good 40 sailer. He further says that the pilots spent a great deal of money on her in 1884 ; they put her on the slip where they cut her in two, hauled the two ends apart, and built a section in between. He knew the "Carolena" in 188(}, was aboard of her in that year and would conaider her as she then stood ready for sea, worth $4,000, and that would he a fair value. Charles Spring says he knew her and considered lier worth li. jii, 13,800 or $4,000. In 1880 her hull was valued for insurance '"" '" purposes at $4,000. P' V '■■■. Rfl The " Carolena " at the time of the seizure was owned by |{. !i7. •'" liiif IL'. William Munsie. ■ - la 92 TUB CAROLBNA. .iiii' 10. H. :wo. K. .W, lini' ;I4. K. ;ti!i. lih.' II. K. '-'iw, lilli' to. K. L'liH. I!. :.'ii7, line 12. U. •jr.'.i, iilii' 41). Witli rogani to liur c(|uipiiieiit lor cntchiiig suuIa, attuiitioii is cullod to till- tiut that tlio Imntori* on bounl tho "Caroleim" wore picked ini'ii, probably amongst the best iuiiitcrs engaged in the business. C'otsford states that ho himself was a particularly good shot ; that Xed ShioMs, another hunter, was a very good shot ; Jos. Dupont, anotlier hunter, was a very good shot ; and tlnit McConuhey, the fourth hunter, w.tsalso a good shot, but not so well accustomed to the canoe as the others. Several other witnesses speak ot'the hunters on the Carolena 10 as exjiert Imnters. It was suggested that the " Carolena" being maimed with white hunters using canoes, her equipment was not so good as if she had had boats manned with whites, or canoes manned with Indians. Several witnesses were examined on this point and it was shown that as a rule white men do not handle canoes as successfully as Indians because of want of training. The evidence is that in the case of the " Carolena " the hunters were experts in the management of canoes, and were equal to any Indian in that respect, and further that if white men were 20 accustomed to them, canoes so manned were in some respects better than boats. Cotsford says : — " So far as the canoe was concerned, that did not trouble " me at all. I was just as much at home in a canoe as any- " where else I have been accustomed to most all kinds of " small craft ; racing craft, light going boats and canoes of all " kinds ; anything tluit will float on the water." " Sheilds was about the same. Dupont was not as handy as " Sheilds in a canoe, but he seemed to be quite at home in a 30 " canoe for all that. McCoiudiey was not quite s"< good in a " canoe. lie did not like them (piite as well.' * * * " In some respects, canoes, if properly handled, are better to " hunt in than boats, as they cover more ground." \V. D. liyers says : — " A canoe manned with two white men would be about " equal to a boat so far as covering ground is concerned, IVo- " bably the canoe would have a little the best of it." Again he says that a canoe will stand as much sea as a boat and hunt in Just as rough weather. Bragg says : — " Others things being ecpial the man that covers the most 40 " ground will get the most seals. I think a canoe would go " farther iii a day than a boat with two good men in her. If " the canoe was rigged with rowlocks and oars, two good men " in a canoe would go over more distance than a boat with a " boat-puller and steerer." lie also says that the hunters on the " Carolena " bad a good reputation, lie says again : — " Canoes will stand rough weather," TDB CAROLINA. 98 After Hoaling on tlio couHt in the gpring of 1886, the " Carolena " left in tho nmnth of Juno fully equipped luul provisioned for ii Healing voyage in Huliriiig Sua. She liad four canoes and a Btcrn-boat. Her crew connigted of a maHtor, wlioac name was Janiea Ogilvie, and a mute, Jainea Blako, and a crew of four hunters and live seamen. It was intended that she should remain in Itehriiig Sea as long as possiliie, at least until after the end ol August, and she was fully equipped and provisioned to remain for that period. 10 On the 1st day of August, at ahout P. M., whilst in Hehring Sea, at a distance of ahout 65 miles t'rom the nearest land she was seized hy the United States Revenue Cutter " Corwin." At the time of sei/.urc she had on hoard G85 seal skins, 12 grey pup skins and one hair seal. The facts relating to the seizure are detailed in a report dated 7th August, 1886 that Captain Ahbey made to the Secretary of the Treasury as follows : — "OnSunday, August 1st, 1886, while cruising ahout 65 miles " south-cast of St. George Island, the British schooners 'Thorn- 20 " ton ' and 'Carolena' were found with boats down engaged " in getting fur seals, as each boat was taken in tho act, and " had freshly killed seals on l)oard, tho schooners were seized " for violation of section 1956 of the Revised Statutes, and " taken in tow to Ounalaska." And again in the log of the Revenue Cutter " Corwin " the following appears : — " 7.30 P. M. Stopped rod seized the schooner ' Carolena ' " of Victoria. Took all arms and aniniunition on hoard the "'Corwin.' Position of the 'Carolena,' when she was seized, 30 " Longitude 168^ 10' west ; Latitude 55° 30' north." At the time of seizure she was carrying the British flag, and was on good sealing ground and had good weather. John Cotsford says: — " We were all day after the seals on " the day when we were taken. Wo were catching them. I " had some in my canoe, and I believe the others had also. I " think Ned Shields had the most. I think that he (Shields) "had thirty-four, but I am not sure ; I tnink that is the " number ho had. I don't know the number I had, but I " think it was under twenty. I consider thirty-four seals as a 40 " ^'*"'y goo^l day's shooting for one boat. Twenty is a very " good day, and tifteen is a good day, too. He jiroceeds : — " I think we were scaling the day before, and " on the day before that too. We were tlien in the same place. " We were becalmed three days before we were seized, and " we caught seals every day ; we were doing very well We " had not finished our scaling that day when the seizure took "place. We would have gone on more, and had a fair chance "of catching more seals." And again he says : — " We caught 76 the day of seizure." g/j This is corroborated by the log of the " Corwin," where it is stated : — "The British schooners ' Thornton ' and ' Carolena ' were "found with boats down engaged 'n killing fur seals, as " each l)oat was taken in the act and had frostily killed seals " on board." K. i:u, liiK' 10. '■'a. 1{. :m, liiii- 10. K. ;i!i:t, linn :<1. 1 f - if 94 TUR CAROLINA. Seo also evidence of J. II. Doii^laiw, u witnosa examined in the proBecutiun of tlie "Cuiolena " at Sitka, wlio says : — R- M- " During this season from May till November, the fur seal " are plenty in the waters adjacent to the I'rilnlotf Islands and "are migrating to and from these Islands, and uro at all " times very plenty Iwtwccn [Tnimuk Pass and said islands in "a track aboui 30 miles wide, which seems to bo their high- " way to and from said islands. The schooner ' Carolena' ami " her boats when seized were directly in this track. I was present " at time of seizure." From this it appears that at tlie very time of seizure, the "Carolena" was on good ground and was making large catches. 10 H. :t'.ii, liiK' 10. A\>. ••ir':w u. 382, After seizure, the "Carolena" wos towed toOunalaska. On arriving tlicro the canoes and boats were taken ashore and never brought back ; the master, male and crew remaining on the schooner at a short distance from the •' Corwin." They were, however, told that half the crew could go ashore at a time. Alter having been kept nt Ounalaska for abount ten days the crew of the " Carolena " were sent to San Francisco 20 on the American steamer " St. Paul." H. :>K<, At Ounalaska a considerable quantity of (irovisions were transferred from the " Carolena " to the steamer " St. Paul " of which no inventory appears to have been taken by the United States authorities. The crew were put to a consider- K. loa, liiiu 2. able expense in going to San Francisco, and also whilst at San Francisco, and in going from there to their homes, part of which was paid by the owner and part by themselves indi- vidually. The master and mate were taken under arrest to Sitka and 30 there on the 25th August, 1886, a criminal charge was preferred agninst them for having killed fur-seals within the limits of Alaskan territory and in the waters thereof; on the 28th August were arraigned, pleaded not guilty and admitted to bail on their own recognizance in an amount of f 500 each to stand their trial for said olfence. James filake was tried on the 6th September before a jury, fo Mid guilty and condemned to 10 days' imprisonment. He retained a counsel for his de- fence at a considerable expense. .Tames Ogilvie after he was admitted to bail and before the 40 day of trial, wandered away into the woo Is and was afterwards found with his throat cut. The " Carolena," her tackle, apparel, canoes, boat, cargo and furniture were, on August 28th, libelled in the United States District Court of Alaska at the instance of the United States District Attorney. Her owner appeared by counsel, and after trial the vessel and everything seized was, on October 4th, condemned and declared forfeited to the United States. The seizure having given rise to the diplomatic correspon- 50 dence previously referred to, the United States Government, on January 26th, 1887, ordered the vessel to be released. THR CAROLINA. 96 Tliis order not having been o1)eycd by the United States K- ion, Marshal to whom it woh addressed, additional correspondence toolc place, and it was not until after December, 1887, that tlie owner was informed by letter of the United States Marshal that her release had been ordered. The vessel had, in the meantime, remained uncared for on the beach at Ounalasku and had become a wreck. Had the seizure not taken place, or had the vessel been restored in time, her owner would have used her for the sealing 10 in 1887, both on the coast and in liehring Sea. Her Britannic Majesty claims the following damages as resulting from the premises : 40 Valiiu iif VcaiMil 9 Flag Knur CttiiiK'H ami initHt Oiiii liiint Nniitiual iiintniiiientii Ciwli (<>Kilvii') Hix aliiit Koo" »t 9ri<) KivpriHcHiit*;*! Ifcdywi'ii liill WilloHgliliy t'liirk, iliiirtcfH at Sitka IiiBiiraiico .1. D. Wunt'ii, i'\|»'iiNi'H to (Htitwa, putting in cluini . . Tinin and iH-rsKnul t'X|H'nMi»s (if tiwner . . Twu taiiksi for witter ami laljimr |iiaiil liy Minmie Kxpt^nsex n'niaindcr of cr«'W, nay Chronometer Say one-lialf hIi>|> chest Four gaffs at J2 Two 8|M)ari) at 93 Rstiniatwl value uf iiroviHioiis and anununition wliioli iniatwl value uf iiroviHioiis and anunu would have lieen left after a full voyage, Hay. Artichw cimtainek (ilacu). . Articles contained in voucher No. 4 li. chargeair» rowlocks 2 60 Two cuni|ia8»es at $3 GOO 4,000 00 12 00 24K aiM , IH, c'mrtH, Ac '■!i>, do 4'-', oiiP wt iflomliriff UoN, W,L'5; liiuxii hIii'Hm, oiio-lmll' vnlii.', $:>.. llo 4S, two (loz. fiyiiicli kiiivfM. . . Out' luiir HwiTpa On«i.tiokiii|{i Bc' .' aw 00 Number of xvhU on Ixiird of v.s».l « hen sii/.«|, OHfi ut *7 4,7ni«.H and hardxhip of cri'W, !l niin nt $500, ..nch. . . . 4,fiOO 00 For illi.jfal arrcHt, iliti iition, iin|.ri«)nnicnt and other harilHlii|i, of .la « ( t^'ilvir, Slastir of "Carolina ". 4,000 00 Kor ill..)jal aiTi'st, d.tintion, InipriMOinunt and other narilHhi|>, of .laniih Hlake, mate of "(Jarolena " 4 000 00 938,(I8!» •£, Tnterent on all al)ove amo>int» at the rate of 7 |H-r nut from the date of liisn until time of |iiiyuient. 10 20 1886. TIIK "THORNTON'." Claim No. 2. The "ThoriitDii " was u ro^'iHtorofl I»ntiHh sclioiincr. T1k> rcgiHter ot'tlu? nti'iirii Hi'liontuT '•Thornton" sIiowh hIio .\|.. ii. im. was first r('j?iHtore fi'ct 2 iiiciii's broad, 5 fi'ft I iiuli in depth ; her rogistercfl tonnage was 208. space for steam power, reduced the net registered tonnage to 22-30 tons. Cajitain Warren bought the vessel in 18t)4 at the rate of K. !tin. $1,800. She wns turned into a schooner in 1877 ; had a white oak frame, natural crooks, and a bottom of ceilar planks, the rest of the material consisting of Douglas fir. 20 After making a trip as a schooner she was practically rebuilt and made a new vessel, fastened with copper from the water line down. 8h<' was also coppered. Kxclusive of Captain If :»>:<. Warren's «)wn time, which ho gave in supervision and work, the expenditure for rebuilding the "Thornton" amounted to $3,500. She was overhauled every season carefully. Cook, a ship- u. s-j-i wriglit and proprietor oi" shipyards tor many years at Victoria describes the work done in the rebuilding, and the care with which it was done, and states that when this work was com- 30 pleted she was practically a new ship. Cook values the ship in 1881, without her steam power* n. smi. at about $5,200. He testities to thecare taken of her by Captain Warren, and that the vessel was in as good condition as ever in 188G, when he last saw lier. Walker, shipwright and jiroprietor of shipyard, valued '«'• "*•'" tlio vessel in 1886 at §6,000, and he festilies that in that year she was in good condition. Warner agrees. K. sm. In 1881 auxiliary steam power was j>laced in her at a cost \i.:kk>. 40 of $3,000. Tliomson, Inspector of madiinery and boilers for tlie province i;. us?. of British Cohnnbia, produced the otKcial inspection record of this vessel, and explained that the nominal horse power being (1.21) for purpose of registration, rejuesented a real horse jiower i;. .wi. of from 13 to 15, and having read the descriittion of the boiler B8— 13 07 Ml yili i\ I'll 08 THK THORNTON, It. fi'.m. I! 'M It. |i>'.>l |{. nur. K. ".f,t2. n. 10J8-21I. li. '."II. li. '.h;:.. I!. ii;|ii. I!, '.w.. and c'lijfiiio in tho rwonl, jjavo tlio »)piiii()ii tliat it would liiivo cost iVom if'J.tiOit to !*2,70() to construct tlieiii. Awkoil iiieroHs cxaniinalioM wlii'tlicr lie would say that tlio boiler and on^ino luiviiijj liocn in us.-, would hoII lor anything; like 7A jkt contort' i*'J.70i», lioniiHWorcd. " I have no douhl in the world it would." Asl\>"l his ronson lor that he ixplained thiit t'roni the report it would appuu.' that everytliinjj was in cxcollont condition. (lrant,(hiet'eniiint)ei ot'tho (Jovornniont stcaiiHT "(Juadra," ciirrolxiratt'd 'i'lioiii«(in'H ntatenient. lo Mullen, for neven yeais inanaijer of the Alhion Iron Worku, who had practi'al know!od;ri'ot the huildinj; of nuichinorv, and tho cost of engines and boili-rs from 18H(I to 1M!I2, Htates that it woidil lie worth !?:J,!iri0 to put the engine in the "Thornton," exclusive of the carpenter's wiuk. (iiay, the owner and jiroprietor of tho Victoria Machinery l>epot, and inspector of hoilersand machinery forthe CJovern- ment in 1S82, havinu' before him the inspection record of the "Thornton" already referred to, testities that lie personally inspected the boiler and engine of tho " Thornton " ; that the 20 record was in his handwriting;, and that the cost of putting the boiler and engine into her would be l*2,t!00, that would represent siiuply the cost of putting the engine and boilers and necessary machinery in place; it wtnild not inclndo any carpen- ter work in connectioii with it. Lewis, some time agent of the Department of Marino and Fisheries at Victoria, and marine surveyor for underwriters in San Francisco, produced the survey of the " Thornton " made by hini in 1883 for the insurance compau}'. From this rep rt, corroborated by Lewis on the stand, it appears that in iJO No jmber, Issi, the '• 'Ihornton " was reported sea- worthy and in good condition. lleex])lained that this report signitied that she was in tlrst-class coixlition. Cavin, shipwright, surveyed the "Thornton" in 1883 for purposes of insurance ; saw her in LsHti ; observed no difference between her in that year and in 1^83. Values her at between ^5,000 and .00, reported to the chief treasury agent of tlio I'nitoil State.-* Oovornmeiit nt tlio tS<>al Islands tiiat the vesst'l at that time wuHinndilaiiidatedand ruint-d condition. Ifc further rc|M)ri.t: — n :hiii. " I ahoidd think when new that ??7,000 would he u lair jirice for hor." It is claimed that ?7,000 is a fair valuation under the cir- 10 cumstances for this steam schooner at the time of hor sci/iirc. Hi' fa-' m Captain Warren nnmaged a llect of sealinjf vessels in IH80, composed of the '•Thornton", " W. I'. Savwanl ", " ;\nna Heck", "(irace" and "Dolphin". All these vessels were engajjcd in coastinj; and sealing in 1s82. In 1H8;{, the "Anna Heck," " Thornton " and "Sayward" were so enjjaged. In 1884 he had the same five out scaling: in these years their sealing operations ^^ r" conliiied to the coast. He super- intended the fitting out ol' the vessels on all of these occa- sions ; lie thoroughly nnderhtood outfitting and always took 20 care that tlicy never ran nliort of provisions. In 1886, Warren W ■ li out the live vessels named for sealing, as well as the " Hustler." 1 lie " liustler," however, did not go in(i> Ik'hring Sea. Four m the live vessels named returned safely to port at the enci ot'tlie sealing in lS8t), without having been actually seized ; hut having heard of the seizures their voyages were seriously interfered with on account ol fear of being seized tltemselves. Tlic "Thornton" was seized in that year; she was fitted ij. ■pn;. out for tlie coast sealing in tlie spring and Warren supjilied 80 lier for the Behring Sea trip at Ciuyoquot. The amount of rirovisions actually put on board her there, namely, about $533 would not represent all that be proposed to put into the "Thornton" for provisions that season; he had arranged to take and did take extra supplies on board tlie " Dolphin " to ^ ,,„^ give the "Thornton" in Behring Sea, the latter being a small vessel and cramped for room. He arranged for a place of meeting in order to give them the additional supplies ; his custom had been to work his vessels so that they could assist each other whenever required ; they hunted on the coast 40 together, and they entered the Heliring Sea about the same timi'. lie intended to renuiin in Behring Sea until the end of u, . H. i»6. Tlio "Thornton" sailed on lier Bolirini; Sou trip on the 27th May, she c-arrietl lour sealing boatB and a stern boat, hIic reaihed IJohring Sea, July -nd, began sealing July 4th ; eontinued sealing until seized. li.iil. !w. On the Ist August, when the boats returned with 3'^ seals the "Thornton" was seized by the cutter " Corwi" " ; an officer was put on board, arms and anmiunition were taken and the British Hag was ordere|>. It. IIHI. August I2tli. Thoy wcro orderod to get their grub on board the cutter. August 13th. The schooner "Thornton" was stripped and lett without a watchman on board. From August 15th until August 24tli, the captain and mate were on board the " Corwin," no permission being given them to go ashore. August 25th. The master and mate were taken on shore and brougiit before the court, charged with having violated the 10 laws of the United States in sealing in Alaskan waters. The a captain retained Mr. Clarke, an attorney, to act for him in his case for $500, giving an order on Captaii\ Warren for that amount. On August 30th, they were tried by a jury; on the Slst, A|.p. it. sd. on a verdict of guilty, the captain was lined §500 and sentenced to 30 days' imprisoimient ; the mate $300 and 30 days' imprisonment. Referring to this. Captain Abbey's report Sept. 22nd, 1886, to the Secretary of the Treasury says: — '"The masters and 20 mates of tlio seized sealers were all criminally convicted and sentenced to various terms of imprisonment and fines." Tlie master and mate were in jail from the 1st to the 30th September, when they left Sitka in the " Idaho," arriving at Victoria on the lOth October. During their detention at Sitka, they were temporarily allowed out of jail, accompanied by one of the marines as a guard ; they were not allowed to go out without him ; when they were released from jail no provision was made for them and they were penniless; the mate had to sell his watch to get something to eat. 30 Captain Warren paid the passage of the master and mate, amounting to §100. The crew were sent to San Francisco by the United States authorities on the " St. Paul," No provision was made for the master or mate for sleeping on the cutter ; they were given neither buidc nor hammock. The "Thornton," her tackle, apparel, boats, cargo, and furni- ture were libelled in the court at Sitka, by the United States District Attorney on August 28th. Her owner appeared by counsel, and after the trial the pro- jQ perty seized was on the 24tii October, 1886, condemned and declared forfeited to the use of the United States. The seizure having given rise to the diplomatic correspon- dence already referred to, the United States Government on January 20th, 1887, ordered the vessel to be released. This order not having been obeyed i>y the United States Marshal to wliom it was addressed, additional correspondence took ploce and it was not until late in 1887 that the owners were informed that her release had been orderod. The vessel had, in the meantime, remained uncared for ou \i. n i. 60 the beach at Ounalaska and had become a wreck. Had the seizure not taken place, or had the vessel been restored in time, the owner would have used her for trading ■il I!. '.ini. K. Kill. I!, nil-.'. Ai.|.. I!. Sll. K. i>; I ,1 '-1' |{. '.Mil. I!. Irtlii. K. '.111. K. !KJ7 .■<. It. IIKI. li. :iii;. I{. KISil. i;. ■Ml-,. .\|.. 1!. SI. 102 THE THORNTON. in the winter and for sealing both on the coast and in Behring Sea during the year 1887. Iler Britannic Majesty claims the following damages us resulting from the premises : .? 7,IWH' (II) 12 (K» VM 10 21' IK) 210 00 9 no r.'f) no 4;t'.i 'M N'aluf (if vcs.11'1 . Kl'W .'t lilli's, (Mmlins) at .'<4r>.70 1 KiH.. ♦ '» >lu)t ^'inis at !. in Invi-ntcpiy nut |iici|»-ily lii-lunffiiii; tu the >lii|i, nn Ix'aril at tinii' 111 si'i/ni'i'. I'Ntini.itcil vain ■ 1 if articli s h liiclj wii(Ml.iiilit!i>s(in luiaid iMit wliiih rannul niiM hf siK'i-iliially i itiuniil . . . Kxtra»\iit of .sails 4 ai'uliii),' lioats Watir t'lwk.f Cual Water tanks Pri'Miiuni of insurancr paid lii-ciilinjr (Nist uf ilcfciiii- at Sitka I'as.sa;;!. niniicy fur niastii ami male Ti-c Ui cuiinsil, anil fm- dtli.T li'K'al cxiicnscs in lunnci'tiun witli till' pnpaiatiiin uf claims 'rravilliiij;, hiitil and ntliiT mri'ssary c.xpiiiBi's in run- ncrliiin with till' »aid .sciznrr and i-l.iinis Kaiiiinus rif "Tlriirntun " for iimslinn anil Imaidintf piiipiisis fur ;t ninntlis at .S'liHI I'lvpiiisi's and liariMiips .if cnw, K) nirn at .S'lOO carli. . . . (i,."pOO 00 200 IH) ;fo7 (M) (>(HI UO 12 00 20 (Kl !M) (K) 410 00 40 00 500 (Nl IIH) IN) 7."iO 00 ,000 (K) '.l(K) IK) In:! skinv at .■'7 laili, ai'lilally siMzi-il r..dan,'iist 1st tu ll nd uf that numtli '.l!M .skins .al ."^7 lai-'Ii , lOsiiiii.itiil ci.asi and lli'hrint,' i^'"» I'atil.fs fur thr yiar ls.'<7 (i„.| vahir ufi 2,.S2I 00 K.ir illiwd arri'st, diti iiliun, imprisumnrnt and uthiT haril-hip^uf Captain I Mil till riisi.|i, niasliruf "'rhurii- luii " and lAiiirisis iiuMiiiid in luiisi'ipiiini. thi ri i.f., 4,iilltl nO Ditluas tu Harry Nurn an. iiiati' and iiiKinicr uf tin' " Thurntiin " 4,1100 IHI ?ii2,iii;t 04 10 20 30 Iiitirisl 1.11 all aUni' aniiiinits at till' r.itr uf 7 |«r nnt pii aiiiiinii fi.iii' ilati- c.t I iiitil tniii' i.f paynii lit 1886. ■ *i {': ,1'.': THE "ONWARD." Claim No. 3. The " Onward " was a resifiBtcred Hritish schooiier, of 35"20 \i'- iv mi. tons gross. After scaling on the coast, slio left Kvnquot in the beginning i!. s-mi, of June, full}' equipped and i)rovi8ioned, on a sealing voyage k'ncV to IJeliring Sea. ,';,„:^';;'J; According to Marketicli, she had eight canoes and a stern li. 71. lin. .tc. 10 boat, a crew of 20 men all told, 4 white and IG Indians. It, however, appears from the Record of Proceedings, at Sitka, \|i. w 711, and otherwise, that there were 9 canoes and 18 Indians. Daniel \'|',. |i ,-,.-,^ Munro and John Marketich were respectively, master and '|';"'.sii-' mate. ''"'"■ Before her deiiarture, tlie master had been instructed bv " >*''•>. the owner to continue scaling as long as possible, to be back i;. sn'i,' some time in September, and to be guided in a measure by "" "" Capt. A. McLean, at that time on the schooner " Favourite". The " Onward " commenced sealing in Behring Sea on the li. 711. lin. v. charge of the schooner ; the arms and ammunition were taken on M' ',• '■'• board the cutter; the master, mate and crew were ordered down into the cabin and hold, and the vessel was towed to Ounalaska. On arriving ihere, the canoes and boat were taken ashore 1;, 7.-. ai d never brought back, the master, mate and crew remaining on the schooner at a short distance from the " Corwin." Tiicy were, however, told they could go ashore tour men at a time. 40 After having been thus ke[«t therefor about 10 days, the 1;. 7:1. mate was ordered t; take 10 or 12 days' provisions troni the " Onward " for himself and the crew, and to go aboard the schooner " San Diego " also under seizure, which was done. ii. >'m, l*rovisiiiiis were also transferred from the " Onwai'd " to the American steamer " St. Paul " at Ounalaska. 108 'liii 104 THK ONWARD. K. -«. It. 7U. K. K!i:t. I!. S'.H A p. II. liiii- ;w. A|.. II. hill' III. A|.. 11, li. 71. li. .ssil, liiii .•< A|,. I! I!. liT. H. KA liiii- I'.'i. liii. III. I!. Mi:t, lini-.'pil. Tbey were tlien taken from Ounnlaska to Sitka, a 12 days' journey. The accommodation tliey had on the " San Diogo " was very poor, she was old and leaky, and about 80 men had to sleep on their own blankets upon the lloor in a small cabin. At Sitka, the crew was set free and a few days later, all, but tlie master and mate, were taken to Naiiainioby the " Corwin " and put ashore at 5 o'clock I'.M. without auy r upper, or any thing else. From there, they had to find their way to Vic- toria, as best they could, and one of them at least (TFarkin), 10 had to leave bis bag and bed and what he bad as security for his passage. lie did not arrive at Victoria until the 2r)th September or tlie 1st of October. The master and mate were detained under arrest at Sitka. •"'-'. On August 25tb, a criminal charge was brought against .(.«. them of having killed fur bearing aninuils within the limits of Alaskan territory and in the waters thereof; on August 28th they wt re admitted to bail on their own recognizance to an amount of §500 each, and finally, on the 6th of September, placed on trial before a jury, addressed as robbers by the 20 M\ 7. judge, found guilty and both condemned to 30 days imprison- ment, and in the ease of Capt. Munro, to a fine of §200 in ad- dition. They were tried separately and both had to retain counsel at a considerable expense. When released, they both bad to find their way home as best they could. The " Onward," her tackle, apparel, boats, cargo and furni- ture ,vere on August 28th libelled in the Admiralty Court at Sitka by the United States District Attorney. 30 Her owner appeared by counsel and after trial the property seized was, on October 4th, condemned and declared forfeited to the use of the United States. The seizure having given rise to the diplomatic correspoiul- ence previously referred to, the United States Government, on January 26th, 1887, ordered the vessel to be released. This order not having 1 eon obeyed by the United States Marshal, to whom it was addressed, additional correspondence took place and it was not till Decemlier, 1887, that Charles Spring, as owner of the " Onward," was informed by letter o*" '"^ the United States Marshal that her release had been ordered. Tiie vessel had, in the meMiitinu', remained uncared for on the beach at Ounalaska and had become a wreck. Had the seizure not taken place, or had the vessel been restored in time, her owner would have used her tor sealing in 1887, both on the coast and in Behring Sea. The "Onward" was built in 1871, of Oregon pine ; she was galvanized fastened, a good sailor, well kept, put on the ways on several occasions, for the last time in 1 886, when she was in first-class condition with brand new sails. 5Q Chas. Spring, her owner, values her at least at §4,000 in 1886. lie says she was fully worth that and ho would not have sold her THE ONWARD. 105 for that sum at any tiiiu! durint; 1886. II. J. Cook, an ex- it. sniv perk'Hcotl sliiii builder and owner ol' ways at Victoria, wlio re- paired the "Onward" in 1878, 1881 and 1880, estimates her cost at between UMO to Sf5,000. Oilando Warner i)lace8 the same value on the ship. i!. «.v.. Samuel !Sea, also a ship builder of largo and long expcri- it, .s.Mi. oneo, who was familiar with the "Onward," values her hull, spars, sails, stern boat, anchors and everything of that kind at about $4,500. 10 Alexander Watson, jr., values the vessel at $4,325 to $5,000 it. m.-,s. without her sealing outlit. Walter Walker places the value at $4,000. it. .-c'l. Her Britannic Majesty claims the following damages as re- sulting from the premi.ses : — Valu.- iif Vf»s<-1 *4,'*»» 'XJ I'liiiiimi] .if iiisiiniiiic- |i:ii.l. :i4(l (HI |{. Will. .\iiiiiaiiiH>ftl .*iS . L'.VJ IKI U.WA TwvUf KIlllH 111 *_'■> WKt ()tl I!. Siiins, atiiinuiiitinn, ship clinnd- Iny, It".. ii'iiiaiiiiiiK nvir at iiiii nf mcliiiai'V viiyaj,'i' 2IKI (Ml K-tiiiiatiil viiliir lit' ailiilis ivliirii wiri- il.nilitliss nil iHianl vessrl, liiit wliii'li caiiiiiit )«• s|k ritiiiillv mill- tiiiniil •.•(HMIO Oist.if cluf.-iifi'uf Sitka "lUO 0(1 l{. STII. l'iissii({i'i)f Capt. .Miinrii otMK) I!. STII. 80 ilo .luhii .Marliiticli 42 00 It. 7l.\ .\liiiiiy giviii til Imliaiis 1.5 00 I'aiil ('apt. Wan-fii in niiiiiiiiinii «iili tliv pn-i'iilalinii It. S71. i.f till' i-lailii at (lltawa l."'-' Ml liily.aV uhaiUfi' 1,(KMI (Kl It. S7I. I'lOiiiialispfii-fi. :<(r(i (10 H. .S70. K\|Hnsr» ami liaiil.sliip- of iii«. -J ii at -a\ <><»> lil.lHIII IKI lAiiir liiiii at -x? '.'.SOO (H) Italiiiu'i' cif catili fill- tliiii'iiiainili'iiif tliiMaMiiiiif lSS(i ; (iiiiir liip> nf Miinr.i, iiia-lii of " < Inwaiil," anil fin i'\| iiisi'.s iiii iiiifil ill r'iii>ii|m'mi- iliiiii'f ■ . SI, mill (Kl I'lir illi'xal aiTi'Ht, ilitriitii ii, iiiipiisniiimiit ami utlirr liiiiiUliilw iif ■liiliM Maiki'liili, iiiatiiif "OnHaiil," ami fill' I'xiHiisi s imnrii'il in lon-iipii'ini- ilnn .if. I.imki ml (.j> Inti'ii'-t .III all all.. v.- ain.iiiiils at tli.' lal.- ..f 7 l"'!' r.iil \■■ 1 11 P ■ 4 ■ \ i' "i t m in ■',1 k F^ 'mm 1886. TIIK " FAVOURITE." Claim No. 4. li. I»i2, llii<'4l>. H. l»i'.>. a. i;«t', Mill' IK). K. 1304. iiii<':ti. Ap. IV isti. The " Favourite " was a rogistorcd British schooner of 80 tons gross. Towards the end of May, 1H8»!, tlio " Favourite " sailed from Victoria, B.C., bound on a sealing voyage to tlie North Pacitic Ocean, and Behring Soa, fully eiiuipiied and provisioned. Ifer provision hill amounted to ? 1,1 (JO. 34, and the slop chest to $255.01. 10 Her master, Alexander McLean, was instructed hy the owner to remain in Behring Sea as long as the weather would permit. She carried a crew of '26 men ; G white, and 20 Indians, 10 canoes, and one stern boat. In their answer to the claim of Ilcr Britannic Majesty, the United States Government admit "that on or about August " the 2nd, 1886, at a distance of 115 miles from the nearest App A. i;<. "land, the 'Favourite' was hailed by the United States " revenue cutter ' Corwin ' and warned to cease scaling in 20 " Behring Sea and ordered to leave Behring Sea ; and that the " ' Corvvin ' was a public armed vessel of the United States "acting under instructions of that Government, to seize all " vessels engaged in killing fur seal in l^ehring Sea, after giving "due notice; and that the 'Favourite' when warned and " notitied was engaged in fur sealing or prosecuting a voyage for " that purpose, and that the action of the said ' Corwin ' in so "warning and notifying the said ' Favourite' was ado[ited by "the Government of the United States." The warning took place about two o'cKx^k A.M. gg The "Favourite"' commenced sealing in Behring Sea on July the !Hh, and at the date of the warning, she had 2151 seals on board, 5i)7 whereof had liecn transferred from tlie "Onward." The following extract is taken from the log of the " Fav- ourite" under date August the 1st : " Midnight, an .American "steamer spoke us; she had three schooners in tow and gave "us warning from sealing in Behring Sea. * * # This "day ends with tine weather and light north wind. Latitude, "55 17: Longitude, 168 17'. ^^ From July the !(th, when the " Favourite" commenced seal- ing in Behring Sea until the night of August the Ist, when she was warned as above, 24 tla^'s, she remained practically in the same position and took 1817 simiIs, an average of 75J per day. She evidently was tempted to continue sealing on the same gn)und on the 2n(l and 3rd days of August, and her lOG |{. l.fjr,. THE FAVOUUITE. 107 catchcfl for these two days were 118 and 142 rospeetivel}'. She then commciiced to change ground (no doiiht to avoid tlio cutters and save tlie large catcli she liad already made, and the 607 skins she had of the "Onward,") and lowered only 'wo days afterwards, viz. : on August tlie 10tli,wlii>n she took 125, and on August the 19th in the Pas^, where she took ♦J2 seals. The "Mary Kllen " and the " Vanderl>ilt " were scaling in Hehring Sea in 188G; the former untd August the 25th, and the latter until the liOth of the same month; the last lowering 10 day heing the 29th. Tlio " Mary Ellen " with four l)oatH and the stern boat, lowered her boats after August the 3rd, with the following result : — On the 4th, 6 seals ; on the 7th, 92 seals ; on the 8th, 60 seals; on the 9th, 82 sea's; on the lltli, 18 seals; on the loth, 25 seals ; on the 19th, 141 seals ; on the 2l8t, 58 seals ; on the 23rd. 37 seals, and on the 24th, 30 seals, Alex. McLean, examined as to how long he had intended to remain sealing, says : — 20 Q. " Was it your intention to remain sealing for as long aa a. y.m, the sealing would be good ? linor.i.' A. " Yes, sir. Q. " And as long as there would be seals ? A. " Yes, as long as 1 would be justified in sealing there. Q. " And you had enough provisions on the vessel to enable you to do that V A. " Yes, I believe I had. Q. '* And you couid have remained until the Ist of Sep- tember ? 30 A. " Yes, sir, if the weather would permit." It being shown that the weather permitted his remaining at least until the 1st of September, it is submitted that ller Bri- tannic Majesty is entitled to claim for the catch from August the 4th to September the 1st, 28 days, for which HoO skins in excess of the 187 taken on the lOtii and 19th would be a very low estimate. As in other ciises, legal and other expenses were incurred in u. i.y, preparing and presenting this claim, prior to the appointment '"" '" of this commission. hi;' tv 40 Her Britannic Majesty claims the following damages as resulting from the premises : — Value of estimated catch as above,800 skins at§7.00 §5,600 00 Proportion of Capt. Warren's expenses at Ottawa 152 00 Belyoa'sbill 250 00 Time and expenses of owner 200 00 §6,202 00 ;")0 Interest on all above items at the rate of 7 per cent from date of loss until payment. .^m F TT^f^^^^WP 1886. "THE JJLACK DIAMOND." Claim No. 5. On May 28th, 188(!, iiistnictioiiB were itiaitcd by tlio United Statcrt TrcaBury Depnrtment to the Commanders of tin; Revo- nne Cutters directing tlietn to seize all vessels aealini^ in Behring Sea, which inatructiona wore carried out during the suninier of that year. In further pursuance of the determination of the United States to prevent sealing in Behring Sea, the following letter 10 was written from tlieTrcasiiry Department on the 6th of March, 1886, to the Collector of Cuatonjs at San Franciaco : — r.s <«, 103. "Sir : — 1 tianamit herewith, for your information, a copy of a letter addressed by the department on the I2th March, 1881, to D. A. D'Ancona, concerning the Jurisdiction of the United States in the waters of the Territory of Alaaka, and the preven- tion of the killing of fur seals and other fur-bearing animals within such areas, as prescribed by Chapter 3, title 23, of the Eeviaed Statutes. The attention of your predecessor in oflice was called to thia subject on tlie 4th April, 1881. Thia commu- 20 nication iaaddreaaed to you, inasmuch as it is understood that certain parties at your port contemplate the fitting out of ex[ie- ditions to kill fur seals in these waters. You are requested to give due publicity to such letter in order that such partiea may be informed of the construction placed by thia department upon the provision of law referred to." No doubt similar letters were written to otiier Collectors of Customs It is certain that knowledge of the instructions was imparted to the Collector of Customs at Ounalaaka. Ap. "II • p. :t7ii. K. 17.".ii, line miM). I{. 17.V, line .')5. I!, ir.'is, liiii':i know what were the vessels that were seized V A. " No sir, I did not. Q. " Were you told ? A.I think I found out when I came 30 back to the west coast. Q. " You were told that two or three schooners had been seized? A. I was told that there were three schooners seen in tow of tlie cutter. Q. " What time of the day was it? A. In the evening. Q,. " What iiction did you take then ? A. I started for home. Q. "Why did you start for home? A. I was afraid of a seizure. Q. " Had you an)' other reason to leave the Behring Sea ex- cept that of being lifraid of being seized ? A. No, sir, I had 40 no other reason. I!. i7.-.r. lini' :ilMHi. I!, i;:.;. lull' IK. At the time of leaving he had taken 763 seals in the sea. i;. 17:17, After leaving Behring Sea, ho lowered boats near Shuniagin '"' !.'7' and sealed but did not make any catch. The vessel lost the iiu. 10. ' remainder of the sealing season following the interruption above referred to. Legal and other expenses were imnirred in preparing and presenting the claim prior to the appointment of this Commis- sion. Her Britannic Majesty claims the following damage as result. 50 ing from tlie premises : Estimated catch for remainder of season (9 canoes from Aug. 4 to after Sept. 1,) 1,491 skinsat$7... $ 10,437 00 Legal and other expenses 250 00 Interest on above items at the rate of 7 per cent from date of loss until payment. $10,687 00 ■ -■ .m i'j'i t; : : 'iS ' 5'" ill 1887. A|>. li. Kill, u. ii;f.'. I!. llJCt. U. ItT'.l. li. :i.s(i. li. mi'j li. ItPlH K. vm li. !I7!', hii ■•2i. K. inw, li. llIKi, li. llllMi. U. Iii;i7. TIIK " W. I'. SAYWAUD." Claim No. »i. The H'^istiT ot tliis vossol Hhowa sho wiis built in 1882, at Vil'toriii. Ilcr length was (JS t'oet, i)rca(ltli, 21 feet and livo- tontlis; ilejitli, 7 feet and two-tenths, llcr registered tonnage was (J4"ll gross. Captain Warren testified : — 81ie was built in 1882 of Douglas pine, her keel being hii(i in 1881 and tho vessel finished in the spring of 1 882. She was well built and cost about $7,000, hull, 10 rigging, Ac. In 1887 she had depretiated very little in value ; she had been well kept uji ; each year she had been hauled up, cleaned, painted, coppered, bottom painted, to[> and sides painted : she was well cared for right along from 1882 to 1887, and had a new suit of sails in 188v), on<> new sail in 1887. Walker saw the " Sayward "' building. Iler carrying capa- city was 110 tons dead weight. In her construction there were used natural crooks, Douglas pine and she was trecnailed. McCollough Smith describes the building of the "Sayward " in the ship yard of one of her owners. She was a particularly 20 strongand well built vessel, his estimate of her value wa8!j7,600. Lewis surveyed tlie "Sayward" in November, 1883, found her in good order and seaworthy ; fastenings, copper below, iron above. Walker saw hor in 1887 after being built; she was worth about §8,000, and in 1880 was worth close on $7,000 ; she was well taken care of, and there was very little depreciation. It is claimed therefore that the " W. V. Sayward " was worth at least $7,000 when i^eized in 1887. She left for Behring Sesi May 16th, and was outfitted for a 30 full season, to stay until October if necessary. She carried the British flag. She had 8 canoes, 1 boat; 21 hands all told, principally Indians. Her master was CKeorge K. Ferey, and Andrew D. Laing was mate. She entered the Behring Sea about the Ist and was seized on the 0th July by the United States cutter " Rush." when 50 or 60 miles from the Pribylov Islands. The " Sayward's" coast catch for 1887 was 1 114 skins. They wore shipped to Victoria before she entered Behring Sea. She had 485 sealskins on board at the time of her seizure. 40 The cutter towed the " Sayward " to Ounalaska, and after some delay the skins were taken out of the " Sayward," she was towed with the crew on board into the Pacific, by the cutter; a cpiartcr-master of the "Rush" was placed on her and the crew was ordered by the captain of the cutter to pro- ceed to Sitka, where they arrived on the 24th July. The United States Marshal ordered the master and mate of the " Sayward " to go up to court ; they were then bound over to appear on arrival of " Rush," and were tried in Octo- ber, after which they were told to go about their business. 50 110 80 40 50 THB W. P. 8AYWARD. Ill Wliilo waitiiijf for trial t\w mute- jjot Icavo from the court to go to Victoria on liiw parolo to roturii for trial. This trip cost the mate i^lOO. In Sitka the iiuiHtur and mate lived in tlie jury room, Lning says : " We could go about Sitka no loug an we behaved our- selves." The vessel, her tackle, apparel, boats, cargo and furniture, were libelled in the United States District Court at Sitka by the United States Attorney. 10 Iler owner appeared by counsel and after trial, the property seized was on the 19th da}' of September, 1887, condemned and declared forfeited to the use of the United States. The "Sayward" was in May, 18H8, obtained by her owners after giving a bond conditione»l'l Sinip^Mii tn \'ii't(ifi;l liilvill's 1 liiilV's II. m>n. II. llll.->. II. |il!«t. .\|.|.. 11. rjs. if. 1 1 17. I!. '."Mi. II HI. 80 ( h\ iifv"-- iA|»n^f^ l*'\|"'iiHt'^ iiicui i*i'kinH >>n ioanl al tinii' > on l«iar.l -lii|i, iti'ni' iniiHi«>ililc li (nut rc'tniiii'ih 40 Haliuii't'iif catili fill- till' ri'inainclir cif tlii' sraMin ; linlit niiiiii« and 1 l««it frmn -Inly !l t'lSiptimlx r l."i, lHs7, 2,'.ll'l skin-, at ■•<(■.. fjll Kritiniati'd riia.st cati'li fm- IHHX, 1 I.. * I'XpCllHCW 60 . til ii«nir liy irasnii nf ilitiMiliim in 1."W7 and l.s,S.s, u hiMi. it ill iiwni'i'V imssi-.s^inii. >lii' uuuld Iiavi' U-in riiastiiij,' NhwiiiIht, Diri'inlni- and .laiinaiy Ki)r illftfal anrst, diti'iitiiin iiM|ii'isiiiniii'nt and iitlii'V liardsliiph (It I "aptain Kn-i-N', and i-\[M'n^i's iiu-niri'd in fiinsi'iini'iu't* tliri'titf ... I''ii' illi'^al an'i'. Lainj;. niali', and i'XIh'Ii.si'n in- fui-rt- ' ill .-oiist-ipi(-ni'- tlii'M-iit PJ (»0 to ?<8.000. I!. lo'M. CJeoriie W. Cavin rebuilt her; in the rebuilding she was cleaned. All the burned and bad wood taken away, her 40 staunchions replaced, and everything about her made new, so that so far as her top was concerned she was a new vessel. She represented then $0,000 to §7,000. All the old iron fittings and iron work aiiout the ship wore re|ilaced. The value of the "Anna lieck" Just given is exclusive of her machinery. 112 10 50 slu[i : TIIK ANNA IlKiK. iia ,i'\vm Hiirvt'vi'il till- ■• Anna lU-i'k " in |sst fur tlic piir, iisc i; imi 1)1 iiisiii'Miii'i' aiiil i'>'|Hii'U'il till' tliiit' tile. W aiiicr valiii'il tin witliciiii lii'i' oiillit or iiiarliiiiiTv at liditi s;>.(itiii i,> sc, uOO wlu'ii slic wai rclaiilt. Uii'lianI r>i'iiii('lt, xliiji liiillilcr, liclpt'il t<> rfl)iiil(l licr ; tlio wor k ill >iii' was lirst rlasH. II' wax iiiai I" a si'l tliaii lufuri', I'lxfliisivi' ol i'iij^iiu>, macliiiitMy ami n-jiairrt II' wa- Will tl. ?? 10 Tlioinsiiii, in li. (HI, ■Inr 111 roiliu'cd tho ollu-ial iii'n nlnl I! 'I'M. iiiMp I'tiiiii 111' this vc-^sil niiiili' ill iss,"i, fruni wliidi it a|i|ic>an'i| llial slii> I'liiiiil iiiako )! iiiii<'s an li'iiir iiinlcr strain ainl thai litT iiiacliiiicrv was in I'aiilv mioij in-.K r ; liot'X|iiaiiii'il that whili'tlio |. .i,,, r.^^i-icrcil hiirsi' puwcr was iiiiininai, her actual hnrso imwcr wouiil he alidiit \b. lie valiicil llichiiilcr, \(',, of this vi'ssi'l at fiitin *-,t!ii(l 111 !i5-J.T' i"i' Amlruw the Hriiish lla^' \\as living on the 40 sehoonor. An olHoor oaiiio on board, took the ship's jiapers and towed her to Oi nalaska, one otlioor and two men being plaootl on board from Mie oiitter. Olsen giving evidenoe says: — il was a ealni day; smooth i;. mi.; water. Tl loy rernamo( 1 4 lavs at Ouiialaska, when th oaptain ot tin A una Beek as ordered to go on biiar d tl 10 seliooner "Challenge," a small Amerioan schooner which had )oon so izod : the mateand full crew were ordered on board with him by Caiitain Shepherd of the "Rush." On this small vossi'l," the •'('lialleiige," llioie was a full crew belonging that SO ship : the •'Challenge" was hauled alongside the "Anna B S — lo \ 114 THB ANNA UBCK. It. 1011. |{. 1041. App. n. i.-.i. App. B. 1,M. Beck" aiid Bome of her provisions were put into the "Chal- lenge," by order of Captain Shepherd, who told them to help themselves and take what was necessary on hoard that ship ; no provision was made for the comfort of Captain Olson, for the mate or men, they all slept on tlie cabin Hoor of the " Challenge." Some Indians also slept in the cabin — 12 or 14 men slept in this cabin. The cabin was about \'2 feet long, and 8 feet broad. There were tables in the room. The floor was very small. The passage to Sitka took about 13 days. The Indians were given provisions and canoes and a boat 3 10 miles from Sitka, where they started for Victoria, a voyage of about 700 miles. A quartermaster named Lawrence had charge of the "Chal- lenge," from Ounalaska to Sitka. The crew of the " Anna Beck" remained on board the "Challenge," at Sitka, lor two days when the deputy marshal intbrmed them they had to appear before the judge ; they were bound over to appear before the judge and sent back to the " Kush " in charge of the United Stiites Marshal to await trial, and after this the nuister and mate were in charge of the marshal and slept in 20 the jury room. They slept on the floor in their own blankets, and remained in coniinement until the 10th or 12th September; they were released from ini[)risonment and got to Victoria about tiie'20th September. T.'ie " Anna Beck " had 337 seals when seized ; mostly caught on the voyage to Behring Sea outside tlie sea. The ship, her tackle, apparel, boats, cargo and furni- ture were libelled in the LInited States District Court at Sitka by the United States District Attorney. Her owner appeared by counsel and after the trial the pro- perty seized was on the 11th October, 1887, condemned and 30 declared forfeited to the use of the United States. Tier Britaimic Majesty claims the following damages as result- ing from the premises : li. IIMll I 11. nil. App. II. no. VmIu.' of \. smI. I.Ul I'f siuris nil lid.iiil till' sclicKMirf " .Aiiiin Hi il; " « lini -li/i'd, sii f:ii' a-^ lln- iMplaiii r.iii n'cnlliit Sl..p i-li,.>t 1 liiiiUs Wnt.T r-M.\i: •I >lli.t t;llM- < illll illipl<'ll)i-nt> .-mil tnnis . . Si'.-ilih^; l.oiii ami .lUitit ('.H.liiiii,' ninp' ri')'Uiniiii t>i iu>iit':Mi<'(- p.'iiij Wohiiui! K-'tiiiiatfd \,'i1iii>iif ai'tii'li's wliii'li wiTcddiilitli'ssnii l> ani lint wliii'li caiiiiiil li' spri'ilii'ally iiii'iiliiini'il l'a--at;i' I'f nia.^li Ta^sMp- tit iiiativ .■< S.dOII (III PJ 11(1 01 'ill KO O.'l (Ml Ion on III on |i;ii 00 l.'i 00 i| OtI 110 IHI 7."i on .'i7L' L'-'^ W oil 'Jon on .'ill on ,~iO IHI ('iiiiiiKrI anil 111 III I' li'jtal rvpi'iixis In aii'l alimil llir claiiiis arising' imt lit till' .-^lizuii' I'lis. iiiiil (••.piiiM'~ ill I'liiiniTii.iii witli ^lu•|| .sriziiii' ami I'laiiiis r.n no 40 50 n 10 TUB ANNA liKCK. « la.lKKI (M) Kvpillsrs ;it Sitkll .. . |M,I III) :W7 skins at ifllM incli '.',l!l(P "lO .Inly •Jn.l t„ ,S,.,,t. i:.,l,. ISS7, ;Mxk. .ki„, „1 >,,{Z ' ,,,.„,, „„ l»nM.,,m.„nv,|,„n,ns,.,„„.,„.,.,l„. f .\ ,,„„„„„ l>itt..as,„K,.,.f.,,,„a„.„f,|„-A„„an,.,.k" .,. ,„„ "i I, III III IIS Inlrivsi ,,,1 ,,11 tl„. mLov,. ,i,ii,,mi(s Ml th,- nil,- ,,f 7 ,„.| c'lii !„.,■ aiiiiuiii fn,i„ ,lat,, ,,f !,,>> iiinil |,,iyiiMMit. 115 I lil'L 1 1 iS 18^7. K. lH.v.t. liiii' lili. It. i.'ari)ing that they were ordered to 1" Sitka and dei'lared they would not go, and to avoid further trouble the imister came to Victoriii instead, arriving thereon the olst, August, 1887, at al)out 7 p.m. This statement is corroborated by the joint declaration of William Thompson, mate, and Charles Petersen and Pidward Hodgson, seamen (all of whom have since died) taken at Vic- toria on the 1st September, 18"'7, which was also received in evidence. The certiticate referred to in the declaration of the master is dated August 6th, 1887, signed by L. G. Shepard, Captain 20 United States Marine, and is in the following words : — "This will certify that I have this day seized the British "schooner 'Alfred Adams,' of Victoria, British Cohuid)ia, "Capt. W. II. Dyer, master, for violation of law and have " taken charge of his shiji's paiiers, viz. : regiater, shipping " articles, clearance, bill of health and log-book, also her arms "and seal skins." The report of Capt. Shejiard to the Secretary of the Treasury at Washington, detailing the circumstances of the seizure as al)ove, was also put in evidence. In this report he says: 80 " When boarded she {i.e., the schooner) had fourteen roduced the I'ccord ot the inspection of the 10 " (irace," March, ISS;"), showing she could make o miles an hour under steam; good sca-worthv (pinlities, fairly good engine, good tost ot boiler, actmil horso jiower 25; valued the engine and boiler in ISS,") at §:3,50O. lie produced also the record of inspection ot the " l)oli)hin " November, l8.Su : under steam she could make 4 nnles an hour speed. A good boiler one year old, and engine; dupli- cate of the " (trace's.'' .\[r. Gray put the cost of the boilers and engines of the "Grace" and " Dolphin ■■ at §3,1 i't» to $:!,200 including the 20 cost of putting thom in. It is claimed therefore that nndoi the circumstances the value of these vessels when seized was in the case of the "Grace " §12,000, and in that of the " Dolphin " §13,000. The " Grace" littod out tor a lull Uebring Sea voyage, to .stay until October, if iioccs-ary, and on .May 2l3t sailed from Olayquot bound north. W. Petit was master and II. Xorinan was nniti'. She carried 12 canoes and one boat. Ilor crew consisted of <) while men, 24 Indians, and a Gbinoso cook. It. IM'^ On .Inly l7th, l.'>s7, she was soi;',ed by otlicors ot tlio cutter 30 "Rush" at a distance of about '.'ti miles from the nearest land and with her crow taken in tow to Onnalaska. On July l.Sth, 18s7,thc comnuindorof the " Hush " repcu'tod to the United Slates .Secretary of the Troasui'y, the seizure of the steam schooner '•i^,. tons register, of Victoria, \i. C, \Vm. IVtit. master, and •!. D Warren, of Victoria, H.O., 40 managing owner, and found Inr to be on a scaling voyage. Had been ton days in the Hehring Sea. and had 7li!i seal skins onboard. When boardeil she had iwehc eanoos and one boat out hunting seal. Saw one seal shot and taken into the hnat while we wore near her. Counted rJsoalslaken on lioard the schooner IVom one canoe and all the eanoos contained more or lc...s.. ;ind two breech loading rilles and ammunition f n same, for siolation ol section llt.ji"), 50 U.S., and section 4, l',.\ccntivo order .\'' "-''• " Riiah. " The " Graoo" carried tlic IJriiisli tlatj. On July 18th, at Oninila^^ka, all lii'oai'ins and ainmtiiiition were taken from the " Ci-ace" hy tlie otHcers ot'the cutter and arnmircnu'iits were ina(h' to send lier to Sitka. On finly 19tli tiie cutter's crew took oft' 7ii!t sealskins ami 4 i;. nti;anri lU sacks of salt from the " (^race. " ""'^""' "'•"'■ C)n July 2()th the •• (irace " was taken to Sitka in charji-e of a I'liitcd States Marshal. On his arrival, August 1st, the master was handed over to i;. n:;;. the custody of tlie United States Marshal. No one liad particular charL'^e of the provisions after arrest : |> 1 1 m the men heliiini; themselves generally, auil the United States .Marshal himself also took certain articles from the scliooner. The .Marshal, on .\ugiist 7th, ordered the Indians to leave u. iin;. the schooner, and they went on shore; on August 8th they 20 were ordered hack on the schooner. On October tho 4th the " J\ush " arrived at Victoria with l!. iiir. some of the Indians and a number of the white men ; the master and mate who had been under arrest were released on Sep- tember IHh. The " Grace, " her tackle, apparel, boats, cargo and furniture were libelled in the United States District Court at Sitka by the United States District Attorney on the 13th September, Ai.p. r... i:;*. 1887. Iler owner appeared by counsel and after trial the property 30 seized was on the 11th day of October, lsS7, condemned and declared forfeited to the use of the I'nited States. " UOLPIIIN." ■' :t: lill i tM The "Dolphin" left Victoria on May 16th, 1887, after i;. nci. having littcd out for a full season's voyage in liehriiig Sea — i;. ii;m. till October if necessary ; Warren, master ; Uoily, mate ; lier crew and hunters consisted of 7 white men, (1 white hunter), and 2t3 Indians ; 1:5 canoes, 1 boat. She carried the British Hag. "• "i.". On the l-:th July the United States cutter " Rush " seized 40 the " Dolphin " at a distance of about 40 miles from the nearest land, took her arms and auinmnition ; put an ofHcer and two men on board in cliarge of her, and ordered her to Ounalaska. On July 18th, 1887, the commander of the " Rush " reported to the United States Secretary of tlie Treasury the seizure of the steamer schooner " Dolphin. " as follows : — " Found her to be on a sealing voyage. The vessel had been three days in the Hehriug Sea and had 618 seal skins on board. Ten canoes and one boat were out hunting seals at jO the time. From the canoes 12 or more dead seals were taken li s — 16 11 IP rannBBW '!^^ 122 TUB URAOE AND DOLPHIN. on board the acliooiier while wo were near her, and tlireo skins I'roni seal rocoiuly l^illed were found in the boat. " Seized the vessel for violation of section 19r)6, l{. S., and transferred her arms and aninninition on board the *' Kuali " viz. : 4 brooch-loading ritles, 2(i brooch-loading sliot-guns, 10 nnizzle-loading shot-guns, 1 bomb gun, 4 revolvers, ;^404 rounds uTumunition for breech-loading ritles, 250 rounds ammunition for shot-guns, 4 kogs powder, 50 lbs. shot, and other small ammunition." On the l;5tli July the United States authorities at Ounalaska 10 took 1(18 seal skins and fl sacks of salt from the "Dolphin." |{. iii">. She was then sent to Sitka in charge of an otHcer and arrived there on the yist .luly. With the knowledge and consent of the United States ofHoer in charge, and while tho vessel vas on hor way to Sitka, four of the crow left in one of the •' Dolphin's" boats for Fort Simpson. K. 11 Hi. The marshal, on August 7th, ordered the Indians to leave the schooner ; they went ashore ; they were ordered back on the vessel on August 8th. 20 1!. 1117. Tho master and mate having been under arrest were released on September 9th. The " Dolphin," her tackel, apparel, boats, cargo and furni- ture were libelled in the United States District Court at Sitka by the United States District Attorney on the 13th September 1887. Api). r.. i(!ii. Her owner appeared by counsel, and after trial, the property seized was on the 11th day of October, 1887, condenuied and declared forfeited to the use or the United States. Her Britannic Majesty claims tho following dainages as go resulting from tho premises. In the case of the steam schooner "tirace" : I!. ii:tip \i.|i. r.. iL'ii. Viilni' iif M'ssi'l s|:.>.(KHi no I'laK y>oo .... W) on IL' wiiti'i- (•••isks ;«t (10 I'J IfUlls ISO 00 .■ti-iH- ... ..... . . 77 :")« CalilUMl .'lO (HI ( lllTl ttiiils 11 (HI •Jl„,„l^ 2."ill 111! ClLlli ,S|.1\C 7."" (H» In^MV.-iiici' .•<4S 7."i l'..■a.lin^; ad 00 I'Ntiiii.'iti'il v^iliii' iif arlicli'H wliii.'li wci'i' ilniilitli'^s ini IhkmiI tiji vi'^^il liiit wliicli riiiiiiiit lir s|»vilir:illy iiii'iiti>iii<"l lv\|irii>i-s anil liai-tNliip.s ttf rtfw "f Xi riirn at. ."S'HHI each I'a.-siKi' iif nia>li'i' anil uii'W l.c'Kal f\pi'ni-c's Tiini' anil pi-r^niial i'.\|.i'nsi's ■-'."ill IKI |l'i,.'Klil III) ^IKI III) S,'i(l IHI iTill (1(1 40 ; I 10 20 30 40 TUB ORACB AND OUI.FillN. 128 Tlili ~kiii>. at Sli .Ml cai'li x I.H'.W (Ml liiilttnci' III' >nli'li Inr ilii' I'i'iiMiiiili'i' III' llii' siaM'ii, IL' (.1 >, I lmat,.liil.v ITlli liiSijiirnilii r ITiih, 1S87. li.miil akiii-.il sri.riti 1!I,."kki ihi I'm' illi K'al airi'st, ili'ti'iitiiiii anil ntlii r liaiilsli{|is ul' Cajilaiii I'llit of till' "(iraci'" Hill cxiicnscs iii,uiifil in immc (|nino' llnniif I.IHHMMI Kill' illi';;al arri'^t, ili'li'iilliin ami utiiir liari|slii|i» nl' inati' uf "tiraci'" anil I'xiH'iHi's inrnrri'il in cini-'riiiii'nci' iliiii'iif I.ikki iki Nil. Ills ■_>:, liili'i'i'Nt nil all Ilir aliiiM' ili'm-* at llii' ratr ul 7 |»'i' nnl |iit aniiiiin finiii itii* ilati' nf t<>>s until jiavnu'iil. Ill the caao of tlic steuin scliooiior " Dolphin " : \'alni' nf vr.ssi'l .'f ailii'lrs wliicli wcii' ilmilitlrss im Uiard Imt wliii'h I'aiinnt Iir siirciliually Mirntinni'il I'A|»'iisi's ami liai'ilslii|i» uf rifw nf It;! nii'ii at sTilHI rarli. {'assail' uf niasli'i- .mil c'li'W .. Lrgal f.xpi'iisi's , TiiiH' ami i>t*rsiinal i'\|M'iist.s t'.IS skins at .?!>. Till 12 IMI lllll IKI ' (N) 75 m M 00 722 71 •.'."i(l I" Ili.'idO Ih. HIMI (III K"iO (10 2.V) (Ml 4,017 (K) Italanci' uf rail li fui' tlir iiniainilii' uf tlir simmhi. Hi lanurs, 1 liuat, 12lli .1 mIv tn Sr|ilinilii-r l.'nli, IS,'<7, ;t, |ll(l>kiiis at •'<(i.."iO 22.100 00 l''iii' illi'Kiil ari'i'>l, iliti'iitiun anil nlliir liarilsliips of Captain.!. II. Wani'ii uf till' " l)i l|iliiii," ami espin.'^i's imiincil in I'liiisniiii'mi' tlii'i'i'iif 4,(KKI 00 Kill' illi'iral ari'i'st, ili'li'iilinii anil nllii r liaiiUliips t,. mati' nf " |)nlpliin,":inil t*.\|i*'nsi-H iiKiU'i'ril in rniisi'ijiu-m'r tliiTi'iif. I.IHIO (H) *r,s,s: If. IL'IL". li. rsr. H. 7H7. 1{. U'Slf. K. 7S7. H. l-.'l.-i. lill.' -Ml. i;. iL'i;t, lin.' -J.".. I!. IL'II, liiU' 111. K. 1227 !t li. 18111. i;. 7^7. li. 7s,><, li. 7.><."<. li. 7.W. li. 1211. Ill ,■ 1". li, 7SS-!P. li. 7s'-i li. 1211-., ilir 2(1. li. 7:"i, iiic HI. THE "ADA." Ci,\i.M No. 11. The " Ada " wan a rogiHtored IJiitisli .-Kthoonor ol 774s toim trross. (^11 or about tlio Itith Juno, 1887 slio ulciircd from tlio port of Victoria for neiiriiig Sea on a soaliii;r voyairc Her iiianter was James (laudiii, and C. A. Ijundljerg was mate and liunter. She liad seven canoes, one .sealing lioat and tlie stern boat. 10 Slie liad a crow composed of eight white men and foiirtoon Indians; one of I lie wliitc men was iil.-io a hunter. Shc^ was fully jirovlsioucd lor tour or li\o nunitjis. Provisions would have lasted until November. The master intended ivmaining in Behring Sea until after the loth September. As to the outfit, Cray, the owner who was called as a witness was unable to distinguish between what was used for the coast trip and the Behring Sea voyage. Apart from a large number of items which cannot be classi- fied, there were paid for provisions §1,;)57 ; for guns and rlHos, $787..')0 ; for boats, §400.. "j 7 ; tor ammunition, §000.93; and for oq ship chandlery, 8430. Id. The " Ada" entered Behring Sea on the 1 0th July, and on the morning of 25tli Auiiust slicwii- seized, while carrying the British tlag, by the rnitod States revomie cutter, the " Bear." At the time of the seizure the canoes and boats were out sealing, and on being signalled for, came buck with 38 seals. The day of the seizure was a good sealing day. The ".\da" had lS7t3 seal skins on l)oard at the time of the seizure, all but five taken in Behring Sea after 15th July. Immediately after the seizure, a prize crew of four men was 30 put aboard the schooner iind she \\;is towed tn Ounalaska by the cutter. At Ounalaska the vessel was seaivhc'd, and in spite of the master's protest. Iicr papers, cargo, guns, itc., were removed. Also the captiiin's private log which they never gave back, although tiie seizing ollicers had given their word of honour to do so. The crew was afterwards compelled t(» take her to Sitka, under threat of being left on the bciich, taking the cajitain prisoner toSitkii, and hauling the ship on the bank and letting her rot there. ^q They arrived at Sitka on the evening of the 6th September, anil four or five days afterwards the crew was released and later on taken to Nanaimo on the " Rush." 124 (0 TIIK ADA. 125 From OminluHkii to Sitka (L'")tli Aii,t;iist to GlIi S('|itriiil)or) i;. i_'ir,, llicy Imd only n i-ouplc of iIuvh Itiul wi'utlii'r, iiiid wliilc thoy ''"' "'" reniaiiu' not. I To asked what we were doiiiLC there, and wo told him that wo were sealiiijr, and the eiiiitain |ioliitod to the Hag — the Knulisli flag Hying at the mast-head. The otlicer went hack to the cutter and shortly afterwards he returned to us witli seven or eight men and started in to make ready to take us in tow and tolil ns we wore seized. I told him, and so did the captain, that our hoats were out ftealing. lie stopped for a while and told ns to signal for the hoats, which we did. We got the canoes on hoard : they had .'iS seals. It was just H.IJO a.m., thov had gone out about 20 6 a.m. "The ship was taken in tow by the 'Bear' and a prize crew left on hoard : the lientomint and three men. The cutter made for Ounalaska, where we arrived sub.so(piently. They anchoreil us there all niL'ht. The next morning they took guns and money and everything from ns and put it on board the ' Rear. " They searched the whole of the vessel right tlirough : they took skins out and salt, not the provisions. Before the arms and money were taken the captain wrote out a protest that nothing was to be taken out of the ship. The 30 lieutenant took the papers and kept them. A.l'ter they had taken out the skins, Captain Ifeah' stood on the wharf and asked for the log book ; onr cai>tain saiil that he had no log- book for the shi|i but only a private log. Captain llealy said : I want to see it. Onr captain said : If you will give me your word of honour to gi\e it back to me, I will get it out? lie said then : Ifand it here. My ca})tain told me to go down and got it, and I handed it to him, and he handed it to Captain Ifoaly, but never got it back. Both 1 and my captain asked the captain and lieutenant on board the 'Bear' to return it, 40 anil they would not give it back. " When everything was out he told the ci'ptain to take the scliooner to Sitka, and the crew refused to go; they wanted to know who was going to [)ay them for taking her down. The master reported what they said to Captain Ilealy. The latter pointed overtotlH> other vessels seized the year before, anil be said : I^o you see those three rotten British hulks, there? Take her down to Sitka, or else I will haul her over tliere and let her rot, and I will put your crew on the beach and take you down in one of the cutters as a prisoner to Sitka. The 00 captain said to the crew: Do you hear what that man says? What are we ti> 'hi? There was nothing said for a while, and tlioy consuiteil amongst themselves and the captain came again and asked : Are yon willing to go or what is it going to be? They said they would go to Sitka. " The Indians were all on board of the 'Ada' and went from Ounalaska to Sitka. There was a petty otHcer from one of the cutters. We wore towed out by the "Boar.' I think it was nine days' passage between Ounalaska and Sitka. 1 "At first we were not allowed to go on shore. The captain went ashore and the crew remained on board. The Indians I! Till, ■' ;i ' 1iif 126 TlIK .\\>A. weio all told to May o\\ Itniinl for a wliili' until wo tint t'lirllicr oi'dorn. Till' tTt'w ami iii_\.ii'lt' wi-re i()Iii|k'1U'i1 to slav on Ixninl tho HfhoDiicr at Sitka four or live (lavs, or Hoiiu-thiiiij like that. Tlioro was a >i|)r(ial |iolicc'iiiaii on Imai'd in cliarifi' ot'onr voshuI and ho nniainoil tliric mostly all the tinio. Attor tour oi' livo (lay.-* or a week. wIumi the lir-t -ifanilmaf with mail cunit' up, the laptain I'anic and told nn tliat wo wore to (|iiit the schooiu-r niid that he was goiiij^ away. Me said that the ircw was ac'f|iMtto(l hut the vessel had to remain. •' We had iiuthinu- to j;o away with. W'e applied to the 10 (lOVeiMioi' tor means to ifct away. We wei'e at Sitka nnlil tho 'Joth Septendter and li\ cd on hoard ; at'tir lour or ti\ e days we eould go anywhere we liked. We were eatinj^ all oiir own ship's food. I thiid< some of the provisions were taken eharji^o of hy the constahle. 1 saw him takinu provisions hut not when lie was on dut\ ; it was afterwards, id'ter we were lil)er- atod. We asked for thi' loan of a ijun to shoot for food, hut eould not get oia'. We were taken hefore tlie judge ; 1 was asked some (piestious. .\fter a week had run out wo could not get away ns wo luu' <- means to pay our jiassage. We -JO fnudly got away on the ' Kiisli,' We had to go and make apjilieation to judi^'e DaxNson : he told us that we eould get away on the • Rusli ' hut he did not know when she w as going. That was after we had stayed on hoard ten days; we had had no more provisions at all. I went up and asked liim how it was going to he hoeausi' tlie Indians were running alter me. T had no control over anything as long as it was that way. I do not know who took the things away ; I had no conmiaiid over the crew nor over tho provisions, lie said there were enough provisions on board to last ns as long as we were at gQ Sitka. I said I did not know where the provisions were, hut that there was no more on hoard of the schooner. There was some hiscuit in the hold that the Indians had, and then we had to sell our clothes, what little we had. We sold everything wo had. right down to our hoots hefore we got away, ami timilly the ' Rush ' took us on tin' 25tli Septemhcrand arrived at Victoria on tho 4tli Octoher." li. iL'l.i. James Gaudin, the master, gives evidence to tho same oii'ect, and adds : — "We waited at Sitka until Instrnctions were received as to what they were going to do with us. We attended the court 40 day hy day, and each day we weie told to wait until instruc- tions arrived. I think tluit the ' Allie I. Alger' and the stcaJiiiM' ' Ancon ' arrived at Sitka on the same day. Thoy hro'ig :t an order from W^ashington to release the crews. We iivri\vd at Sitka on the e\i'!iing of tho .'ith Septemher, and it waf. on tho evening of the 8th that the ' Ancon ' arrived. I iott the next day. 1 gave tho purser of the ' Ancon ' my note tor my ticket to raise the money. When orders came from Washington to release the crews I made an application to the judge and asked him what he was going to do with our r^Q men, and it was then decided that they wore to go down on the 'Rush.' The 'Rush.' had not arrived at Sitka at that time. Suhsc(|uently she hrought them down to Nanaimo. This was not their home." i;. ijiKi. In Septendier, 1S87, the " Ada,"' her tackle, apparel, hoats, cargo and furniture wore lihellcd in tho I'nited States District Court at Sitka, hy the United States District Attorney. TIIK AI>A. 127 w All ap|>('iii'i\iiri« liy ('(iiiiiscl was lilcd, ami iil'li'f triid, tlic pro- ii r.ic. .11 Octol.cr Mill, 1«S7, |K'rt> Ht'i/cil wuH cluri'd forloitiMl to fliu iisu oltlio Uiiiteil StatcH. I'oiiiK'iiint'i I and Ah a n •milt 111' till' Hoi/iirc ami lorrfitiirc nl' liin vessel tlie i: \'s.i». owner war* coniplulely ruined. Til Adii wa s liiiilt in \-<'*'2 ill Yoknliaina. Her frame, i; 7si. keelson uikI caliiii tiltiiiLCs were ot' kiidvi. Tlu' wood work of tlic enliiii WUH of tlic same material, and alio wan planked will. OroiTon lir. 81ie wan eopper-fasteiied to tier wafer line. Clias. 10 A. linndlicrir, who saw lierevt-iy day during the course of coii- Htruction says all the work was first-class. He was present when the contract for liuildinu wus made in Yokohama, anil says that the amount tor the hull and spars was if.'), 500, and i; :<,. for halaiice of littiiigs, running gear, hawsers and upholstering, IS'J.OOO. Janiert Gaudin, the miwter, examined the " Ada " heforo I!, i-'iu'. leaving lor Behring Sea and fiuind hoi in perfect condition, ii Tie savs she w IS the liest sealinir vessel in Victoria at ihe time. When the " Adi can le to \'ictoria in 1887, Ch "y, lior I! 1-Jl:i 7Mi\ 1:; 20 owner, was otl'ered .Sl',000 for her — without any provisions — h}' Mr. Siewenl. In ri'jily Mr. <'i'ay said that he would not take .510,00't for the ship. Sit iowerd says the " Ada" was well i)uilt, well found and in i;. ijij good condition, and thinks she was well ivorlh eight or nine thousand dollars. Richard Collister, loi' thirteen years Inspector of Hulls for i; mij the Dominiou IJovernment in British Columbia, and who pre- viously was a rtliip-huilder in Liverpool, aurvoyed the " Ada " ill Aiiril, \Sbl, for Lloyds' underwriters, and made a thorough ijO examination ot iicr. In his opinion, from liis knowledge oi'tlie value of shi[is and the cost of siiipdmiiding in N'ictoria, the "Ada" was then worth fully §:',000. iM The claim of Captain (iaiidin for personal lianiages for arrest ill the year 1S87, needs siiecial mention, as a motion to dismiss it on the ground thai such claim was not [uopcrly within the terms ol the Convention, was made at the hearing. This claim was, hy mistake on the part vif the agent (d the owner of the " Ada," not included when the other claim in connection with the vessel was sulimitted. Captain Caiidin thought that it had 40 heeii so included and it w:is oniy on seeing the printed list of the British claims that he discovereJ. that such was not the case. He iniiiiediately re(piested that his claim might be added to the list. Her Majesty's (Jovernmeiit caiiseil impiiry to be made into the eireiimstancesof the delay and after such inquiry decided that his apjilication should be granted and that bis e aim should be pressed. Uii the 7tli June, 1894, Sir Julian I'auiieefote wrote to Mr. Gresham, stating : — "I have now the honour to transmit herewith, by direction 50 of Her Majesty'*! l'vinci[)al Secretary of .State for Foreign ♦< 128 THE ADA. Affiiii's, ii complete li«t and triiiiimary of those claims, together with incnioraiida of the additions and amendments made since their original iireseiitation."' The memor-'Mda referring to the case of the " Ada " was as follows : — "Claim of the master, Captain Gaiulin, for personal loss and damage, 3,000 dollars. " This claim was, by a mistake on the part of the agent of the owner of the 'Ada, ' not included when the other claims in connection with this vessel were entered. Captain Gaiidin thought that it had been so iuchided, and it was only on see- iQ ing the printed list of the Britisli claims that lie discovered tluit such was not the ease. He at once reijuested that the omission might be rectified, and his claim aclded to the list, and Her Majesty's Government, after causing an in(iuiry to be made into the circumstances of the case, decided that his appli- cation should be granted. " Captain Gaudin's claim has aecor'S. 1 1 1:.. I!. I J 17 I!. im: Valii I'n-niiuni of 'iisnraiicr puid i:i «iiM-, I'l rillis n.-liiiii^r, S .ir sin , rl, l'',-lilllil(c.i \,ilui'iir IpImvU^iII-. allllllllllilioll, >lli|l (llllllll l"i>, ,Vr.. w hicli «. Ill I liM\i> n iiiaini'l Mt llir iinl i.f tlif \nyiijrf . l-!>tiin;iti'il \aliic iif iitiiitlral iiisl nimnii-, iIihmiiiiiii Iit, (jiiailnnil. srxtant. i'iiih)ni,s>fs. iVc l!-lill '■■! vallli III' ulliil- lllli'"liMlllliiMr -raliii^' iillllit, all., c'l ailiili- v\ liii-li »■ r. '[..iililli-^ 1,11 l.rial'il \rs-i-l I lilt wliic h ciimMii III' ~|'i riallv ini iitniiiil . , I'a^- i^'i' "f ' 'ajilaill I iail'lllj . K\)'i II-. > aliil liat'l-llii''- III iT'U. I'L' il -a\ s.'iOit i-ai-li C.i^l i,f il.'li.lii-. at SitK.i HMTlii.ti « ilh |Mi'M iilatii'ii i.f claili.^ I'a|.! Wall.,, al ( lllawa I'aal Mr. I'..nl.y, ,|iit. r.ilvia's clialitri. 11,111111 lilt IL' III! IL'M l.ri ii;i; .■,7 7S7 ."id Ml nil 'iiiii (III iCiii nil i:iin nil ."n nil 1 1, nil iin ."iiin I J) .•_' nil ,"i I IIP (I IHI 4(» 10 PtTsnlial t'\lH-ii: TUB ADA. •nf (.MIIIT frun, Vok.ilMUii KSriisk ins ScizCll nil l|(|,i,-,| „.||| 'iicr at NiriO. Kx|irii«.f- iiiiil liiiiilslii|,,if iiv\v(22iiifiiiit.*r)0()oacli). Kst iimitcd catch (" can l>o.t sea inch hliK fi "'••', I Inmtinjf Imi iKfriiiii LMth .\iit,'iist to 15th S, lat ami a Hti'in iMivcl, Klli-I skills at .*(: 'ptcUllKT, Imiv thi. ilh'pil aiTi'st, (li'tcnticiii and laiiii's ( iaiidin ii incnni'd i iastn-iif the " Aih, ■iiiisr{|iifnct' thcrriif :)tliii- hai-dsl and ll|JS III i'X|ii;nm'a .*;,'t,(«IO Kiir thfilh'L'al i.f C, ■(falaiTcst, ili't A. Linull i'ntii)iiandi)thfrhardshi| I'XiK'nsi's inciiiiTd in ii'i>,', iiiali-iif il \d. I," and iin«-i|Uc-iicc thiTciif H.OOI) 129 ■•< .")(K) (II) 12,111 1 (III 11, IKK) nil ii.'.nn no (i,(K)o no I I ••s ill.iKi;! 117 Im I'li'Kt 111! all till datfiif liis, II' aliiivi| iti'ins at the rate iif illilil |iaynii'iit. I jllT Cl.'llt n»— 17 k.'^ ■PH 1887. I!. i;«iii. liiv 11. li. 1 ini;. liiii'iiii. I!. i;W!t, line M. l;. I:i'.i7. liii.' liiL'ii, i;. 1:1:17. TIIK "TRIUMI'lI." Claim No. 12. The 'Triumph " was a British schooner of 15 tons, regis- tered at the port of Vietoria. In the year 1SS7, she was outfit teil tor a voyajie to J?ehring Sea witli the intention tliat she sliould remain until the end of Septend)er. On that point the owner says: — " Q. In a general way are you able to say to what extent jo you outfitted and provisioned the vessel? A. All I can say is this, of course I calculated that the schooner would stay up there until pretty late in the season — that was in Sejitenibcr. I gave the captain ]iarlicular orders, 1 want you to Ijunt there until the last, until yt)U are driven out of th ■ Hi ;i, and, of course, 1 gave them what I considered :• .^.'Oii .: < ninnths" provisions and the [iroof of it was that the soi. oner ■ i..ie bark pretty well provided with provisions after ihe uip." The witness Smith also says : — " To the best of my j\idgment I should think that there were 20 plenty of provisions for the crew we were carrying to last us until the beginning or middle of Octdher."' And he goes on to say that when they arrive!. 1 He then enteriMl the cabin ami demanded the log boo!. . ■d the jiapers belonging to the ship, w nirh were banded to !.itn. lie nnidc sonu' entries in '•'•^ own ]i'i\:ite book and a>ked the captain what bis bnsirie» \ 's ; tb-.^ captain told him that we were bound on a scaling Myage intu Behring Sea. I believe lao 10 TUB TRIUJIPII. 131 then that lie went back to report to iMe fa}),'iiin of the cutter, and lie ininiediatoly retunieil and searched the vessel. A man went down in tlio ship's hold and I went will, him, and lie turned over the provisions and took the skins oui of salt and counted all that wo had on h.iard. ITc made me open the water barrels " Q. Did he ask yon if you had any rilles on board ' A. He asked if we had ritles on board and the ea]»taiii lold him that, we had only one ritle on boai'd and no ammunition. I'e then 10 entered the cabin aji;ain and told us that Captain >liepard had a right, aecordina' to our log, to seize us then and there, and also what we hail on board the \essel as tlu' seals were caught within the limits of the United States jurisdiction. Wc did not understand that, and the captain asked him how it was. lie took out our North I'aciiie Ocean chiwt and drew line across the southmost I'ajies of Alaska to the southmost point of the Aleutian Islands, and he drew the line and claimed all the water within that line as being American territory. And he claimed all the seals that wi; had on board that were cauglit 20 within that limit. TTo said that as we were working on shares they would give us the chance to take the vessel home. He demanded an answer from thecaptuin, and asked him what he intended to do; the captain told him that he had orders from his owners to proceed to Behring Sea and finish the voyage ; that was not sufficient and the lieutenant insisted upon an answer; the captain declined to give it to him. The lieutenant returned on board the revenue cutter and the revenue cutter, steamed close alongside of lit, and Captain Shepard hailed us from the bridge, saying that if he saw us in Behring Sea after 30 this warning he would seize us on sight." The lieutenant also told the master of the " Triumph " that the schooners, "Grace," "Dolphin," "Anna Beck" and " Sayward " had been seized. After this 0(;currence, the vessel remained becalmed for some time. Some of the rndians who understood English had heard the statement of Captain Shi'phard and began to feel uneasy. They demanded an immediate return home. The captain and the mate talked the matter over and the captain ex- plained that he had some information as to possible sealing 40 grounds away in the west, and after that when the Indians de- manded a return, the captain told them the same story, and that lie would try to hunt on some sealing ground where he would not be in danger of seizure. He also promised the Indians that if they would tinish tJic voyage, he would give them as a bounty, the ainount of the advances previously made to them. The Indians being thus pacified, the vessel took a westward course and entered Behring Sea. Hunting operations were begun on the 5th August and con- r)0 tinned until the 25th, inclusive, when the vessel began her re- turn voyage. The witness Smith gives the following evidence with refer- eno'" to that matter : — ' tj. What made you leave the Behring Sea on the 24th or 25tli of August,a8you have stated? — A. Being olf the regular sealing ground, and from what 1 have been given tii under- stand from the captain, that seals were scarce and the Indians t:^ R. i;«is, liiir 20-;!(l. H. VMS, lini' IS. I!. I:i'.i!i. Illlr .'KMK. (;'■. 132 THE TBIUMPII. K. 1 KKI, lini' III. K. 14(11, liiii' 55. were afraid of seizure, and they tlioiiglit it best to save what we had on lioard, and the captain concluded to conio lionie ; in fact, the Indians refused to launcli the canoea on the hist day of our being there." " Q. What kind of weather did you have for the few days before the 24th or 25th of August, the time you loft?— A. So far as I can recollect. I was 21 days engaged in the business ; we launched 17 daj's out of tiiat — that will give a pretty good idea of what kind of weather we had. " Q. But the two or three days before you left what kind of 10 weather did you have ?— A. The vessel "lay becalmed, foggy, no wind to drive her one way or the other," It should be noted here that the witness was afterwards re- called and produced his book containing a record of the daily catch of seals in Behriug Sea, from which it appears that from the 5th to the 25th, inclusive, the vessel had 19 lowering days. He also says that on the 25th they took 33 seals, but that as a general thing there were not many seals on the ground over which they had been hunting. Legal and other expenses were incurred in preparing and 20 presenting the claim prior to the appointment of this Commis- sion. Her Britannic Majesty claims the following damagOH as resulting from the premises : Illfgiillinardiri}; and scarcli (if vcHM'l .s L',llil(l IH) l'i'ii|Mii'tiim ipf Waniiis cxiK'H-ies tu Ottiuvii 152 (K) 'I'iini' a:i(l expense of owner ^(H( tnt UelyeaV eli.ii-K'es 25(1 00 Kstimnted e:ilcli if sell lei- nut inlerfeird with I I eanoe^ Mvd- Mii! fnun ."itli A\iKii>t to l."illi .Si|itiTiil«i'. inelu^i.l■ l( ^> IS(I skins nctiiidly talieni niaking 41!l ,it «i>..")0 'J.7-'.i ,5(1 « 5,325 50 lnleie,~t on all aliove iteni^ at tlie rati- of 7 fiw c.nt fi..ni .late ,,f lo:.s mitil iiav- nieiii. 30 1889. TIllC ".IIJANITA." Claim No. 13. Tli(! " Jiuinita "' was a British schooner of 40 tons registered at the I'ort of Victoria. According to the evidence of ("lurk, the master, she was well titted for sealini!:. Tliis statement is verified by the schedule J^- 'P-'',, .. „ . . . . . liiuiaii(li:tri;i. put in evidence of the articles comprising the provision and outfit, the total value of which amount to the sum of §2,254.65. 10 In the month of January, 1889, she was outfitted for a sealing trip on the coast and afterwards received additional nVi,. i ' supplies and outfit for the Behring Sea voyage v/hich she con- templated taking in pursuit of seals. Her crew consisted of 14 Indians and 4 white men, inclu- ding the master. She carried 7 canoes and the stem boat. She was provisioned for a voyage which would last well into October or November and the master intended to stay until '{■ i^^". '• i. the 10th September as had been arranged with the owner before leaving. 20 She sailed from Victoria for Behring Sea in the first part of |. ,.^.,,| May, sealed on her way up and reached the sea on the 2nd '• '-• July. She immediately commenced sealing and lowered boats for the first time on the 10th. She kept away from the good li. i;t's pai)ers, ciinsisting of registry and clearance, had been taken possession of by the seizing authorities. 133 i; V ^•^1 m IS W] ->. "! i;. Kiiii. 134 THE JUANITA. After the seizure, the master of tlie schooner was ordered to go to Sitka, but came to Victoria instead. The boats were not lowered for scaling after that date, but two seals were taken on the way down. The ship got back to Victoria about the end of August and was laid up until the opening of the next sealing season. Legal and other expenses wen^ incurred in the pro[)aration and iirescntation of the claim [)rior to the a[Hiointment of this Commission. Her liritannic Maj'sty cltiims the following damages as 10 resulting from the premises : — Illr-aniuMidiii],', -iMU-li ami :l^n■^t .if Vl■^.sl•l s ;;,i!(iii (ill N'.iliif uf skills taken Iniiii >iiiii at tinii' nf kill^ a! sll li,S4:i Kit 1 I >l»Mis Ml -S! each I'l »<'• Slii|i'~ paiiiTs . , . lT) ml I'lriyca'.s cliarjrc- :;.")(( 'ill Tiiiii- anil cxiHiisrs ,,f uwiici -Jill) (III K,-tlniati'il catrli il m-1iiiiiiii-i mil iiiliTtrii'd witli ' i-aiiiirs .'inil 1 liiiiii ami >liiii lii.at sivilins; fn.ni .'iNt .liiK : i l.'itli .Sep- OQ li-nil«T, inclii«ivr) 21(12 skins at .•<11 2;i,122 (Id " •S 32,4H1 (M( Intcri'st nil all aluiM' iti'iu- at latr nf 7 |k r iriit finiii ilatr nf Inss until iiayinint. 1889. THE " PATIIFINDEli." Claim No. 14. The " Patlifinder " was a British schooner of 70 tons. She was purchased at Halifax, N. S., and was tlic first of the i!. fleet used in sealing which came around tlie Horn. Her cost liii III. III. !'.a. i\w 1. to her owners when she arrived at Victoria was about §0,500. li" In 1886, she went on a sealing voyage to Behring Sea and k. took 1460 seals. 10 She was fitted out for the season of 1889, with the intention that she should remain during the whole season. It was left i;. ^:<. 7ii7, liim i. and a Htern boat. liVie L'n'. ' The "Patlifinder" reached the sea about the 1st of July, i;. riir. and carried on sealing operations until the 29th. On that day "" about 10 a. m. she was seized in lat. 57"24 N. and long. 17l'.J5 i;. i.Mi:t, 20 W., by the United States revenue cutter " Rush," for violation of Section 1956 of the Revised Statutes of the United States. The seizing officer removed from the vessel the following articles, viz : — 858 seal skins ; 7 shot guns ; 4 Winchester i;. re,:, rifles; 300 cartridges, 5 boxes of shells, and the salt which "" "' was on board. lie also took possession of the ship's papers, |, |.„, consisting of certificate of Registry and clearance. i""' -'•• The seal skins, guns, rifles and other articles removed from the '" Pathfinder " were taken to Sitka and there proceeded against at the instance of the United Slates' District Attorney 30 and such proceedings were had that thej' were afterwards con- demned and forfeited to the government nf the United States and sold and became a complete loss to the owner. Tlie shot ifuns were worth !?55 each, and the rifies §26 each. K. i."iii.\ * lilM. 'MM. After the seizure, one of the quartermasters i'rom the " Rush " was put on board, and the vessel was ordered to proceed to ., ,|., Sitka, instead of whicli, liowever, she came to Victoria. lin. vj. It appears that some of the hunters liad hidtlen two or three guns which were left on board. On the way out of the sea, the schooner lowered three Iwats i;. rns, li,,,. i. 40 and took 50 seals. Up to the time of seizure the vessel liad experienced fair '*• weather, though there were some rough days. It took five or six days to get ouf f tlie sea and during all tliat time the weather was fine. 135 lilM I'll .ill. '. \- If. 77"', lilD- IIMIII. n. 77!) liiii' III. |{. I.MT, III': L-. 186 THE PATHFINDER. The (lay on which the " ruthlniilor " was Hoizod is described by IVissett as a ".splendid day," and the sclioonor at that time was located among an uniisnally largo (luantity of seals. This is corroborated by Byers, one of the liunters on board tlio vessel at tlie time. Legal and other expenses were also incurred in connection with the preparation and presentation of the claim, prior to the appointment of this Commission. Ili-r Britannic Majesty claims the following damages as resulting from the premises : 10 l''(pr illi(,',il Iminliiij;. s,;in !i Mild ainst (if vcsmI i^L'.dOII (K) 7 -^hct trnnxat .s.-M.-iifli IWi (H) 4 rilli's iit -sal cai'li 1114(10 Slii|.'.. |.a|iirs 25 00 .\"i4 skills M'izi'd, at .■jll caili !I,H!M IK) l.i-Kal i\|ii'iisi> aril) (Ml Tiiiic ami i'\|iciisft4 cif i.wnci- •JH) (M.I Ksliiiiatnl calili if scImiihiim' imt iiili'rfi.|i'il witli (5 Imats a aiirl stern iiiiat sialinj; fruiii L".i|li .ruly tu l.'itli .Si|,- t.'lilliir, iiulu»i\>'| L'OL'I sUins at ■•'ll .•acli L'L'.L'IM (III .■*:u,i;i!2 iM) 20 Iiitiii'st 111! all till' alnivf itc'iiis at tin- rate of 7 iht cunt fimii ilati' nf liiss inifil payiiiiiit. 1. *i 1889. Til 10 "l?LA('K DIAMOND. Cl-AIM Xo. 15. ■I ■ i: . .i Tlic " l?lu(k Diimioml "' \va.s a l?riti>ili rcliooncr of 82 tons I'onistort'd at Vitforia. At tho date of the soizure hereinafter iiieiitioiioil ; she was owni'il and registered iti the name of Morris Moss, having heen convoyed to liini hy bill of sale duly registered and dated the 10th Xoveniher, 1888. In tlie spring ot 18S|i she was fitted out tor a sealing voyage 10 to Mehring Sea ; her master for that voyage was Owen Thomas, and mate. Alexander (JanU ; she carried 10 canoes and one boat. She had jirovisions sullieient to last till the latter end of October, and was in every way e(inipped for a successful voyage. The schooner entered Bchring Sea on the 6tli and had her lirst sealing day on the ItUh July; on that day slio took 76 seals. On the 11th July, between 12 and 1 p.m., she was seized by the United States revenue cutter " Rush" being tiion about 2(t 20 miles from the nearest land and being at lat. 5t)'22 X., long. 17( 25 W. Owen Thomas describes the .seizure as follows : — At the time the cutter was sighted the boats were all out, but they were all in before tlie cutter got alongside ; "they saw the cutter just as well as I did, and they made for the schooner right awaj' " The boats took 5a seals that day ; it was a good sealing day ; "' they would have luid 100 more, I believe, if they had been left alone. It cleared up nicely. It was thick as could be all the morning." We were carrying 30 the Hritisb tiag at the time of seizure. (J. "What took place when you were boardci' ? A. "Well, he came alongside, and he says » . me, 'Well, ('aptain,' he says, ' I have caught yon right in the act.' Says I, • Whats that " ''. Says he, ' Catching seals ' ' Well." says' 1, ' that is what I am here for,' and he jumped on deck and he asked me to show my papers, so I did, and ho wantetl to take them away, and T wouldn't give them to him ; he went on deck and waived his handkenhief, and the cutter came along again, and another boai's ere v and another otHcer. and 4(j he went aboard, and he came back again. Then he orilered the skins taken out of the b.. 'Id, the 70 1 had salted, and he went aboard there again. Then he came back and the master of arms with him. lie asked me again for the papers; sa,\s 1, ' I will show them to you, 3-ou can copy them otf, but I shan't deliver them to you.' lie says, ' Vou must give them to me ; ' says I, ' I won't give them to you,' and he told the master at arms to bust the locker, and so he did." They took the 70 salted skins and two sacks of salt, and left the seals killetl that day on the deck. They then put a 50 man from the " Rush" on board and told the master to proceed B s— 18 137 I!. lsi:i, lini. (111. i;. 17711, liiii to. If. I'.P'.Kl. I!. 1.S..II. I!, iriiv, It. 17711. It. 17i;7. lilli' IS. I!. 1.SII4. U. 17(17. liiii' (III. I!. 17iis, line 111. I!. 17lis. liui' 1."). I ' 138 THE BLACK niAMONI), K. 170!t, lillr 1. I!, isol. li. isj.-i, lillr r.4. to Sitka, who told tlioni it'thoy wanted tho vessel lit Sitka, to jiut a crew aboard, and they |itit mie man aboard ; then the eutter left. Tiie master did not jiroeeed to Sitka ; he wa.-* told there was a British man-of-wnrat Ounalaska, and ho wont there. The next day was t-alm and he eould not move, eani^ht al)oiit 11 seals from the vessel that day. They did not lower a eanoe after they were seized, except to pick np those il seals; tliere were plenty of seals around the vessel when they killed tho 11. Four days after they were seized they reached the bay outside Ounalaska ; they went there without losing any time. JQ The master further testifies : — •'I had been told there would be a British man-of-war there, and I wanted to get some satisfaction before I left the sea about their seizing my vessel. I couldn't get to Ounalaska, the wind died away right in the bay there, ind I ascertained from a schooner coming out that there was no British man-of- there ; then I went right out of the sea that day and proceeded to Victoria." The Indians told the master that if he did not go to Victoria, they would i)Ut the "Kush's'" man out of the wa}', so he went oq to Victoria to save trouble. The ofKcers from the " Rush " had taken away the Indians' spears; and guns were on board but the Indians were not good shots, and not accustomed to using guns, and tho means were not on board of making more spears. The stern boat would have gone out in tho afternoon of the day of the seizure, as it would have on any good sealing day. The duties of the deck hands would not have prevented them from going out. Captain Shepherd's report of the seizure states that on duly 30 11th. lat. 00-22 N. long. 170-2 i \V., the west end ot St. George Island, bearing X. K. I X.. 20 miles distant, " I seized the British " schooner vBlack Diamond' of Victoria, B.C., Owen Thomas, "master, for violation of law, section r.t56. Revised Statutes "of the United States. "She entered Behring Sea on .luly 3rd, and when boarded "was found to have on board 7(! fur seal skins in salt, iiml 55 '■^ ildid far seals, iwtnlli/l.lUnl, mnl md s/.iiinnl; mi deck, nil '■'■ iif leldcli the mp'ain reported to hire tnkni Juli/ }() (ivil W. "Her crew consisted of five white men all told and 20 Indians, jq " in(;hiding one woman, of the Ahauset tribe of Vancouver " I.sland. When boarded Captain Thomas declined to exhibit ■' or surrender the vessel's i)apers, and Ijirut Tuttle (by my "order) was obliged !o break open a locker in the cabin to " obtain possession of tiu'm. "The fur skins and arms, viz., a rifle and 20 Indian spears, " were taken on board the ' Rush ' for better security, and I " placed the vessel, oHicers and crew in charge of seaman J. "llankanson of this vessel, with instructions to proceed with " her to Sitka, and on arriving at that port to report to the .-,0 " United States District Attorney of the District of Alaska, "and to deliver to him the vessel, the [lersons ot Captain "Tiionias and mate Gait, and to set the crew at liberty." Captain Shoiiherd in his evidence given at Sitka, states as follows: — " When the schooner " Black Diamond "" was first sighted she was ^ hove-tu' und' r her J'"ry tlic wind to the fioiitli imd west. The Ctiptain (liclinnl to ohej/ our onler to ^he- 10 coeded againnt at the instance of the Uinted States District Attttrney, and such i)roceedinas were had, that they were afterwards condemned and forfeited to the Government of tho United States and sold and became a comiileto loss to tho owner. Legal and other expenses were also incurred in the prepara- tion and presentation of tho claims prior to the appointment of this Commission. On account of the illegal seizure the voyage of the " Black Diamond '' was completely broken up. 20 Her Britannic Majesty claims the following damages aa resulting from the premises : — IllegilllKiiiriliiit;, stMii'ili ivii 1 :iiri'st iif vessil .'>i2,0 (in •'?41,!MI1 IKI Inti'icst III! all llii' al«ivi' items at tlir rati' nf 7 piv iciil from (late 'iit. it I ■■{ iiti .\|.|.. p.. 1117. lillr Id. I!. 1S1.\ liin* ."i.'i, 1X17. II. ISKI, iiii' r !!. 1SI7, 1880. THE "LILY." Cl.mm Nil. III. Tlio " Lilv '' WHS a IJriti.-li scImidiu'I' rc<;isteiv(l at tlio porf of Victoria, Britisli Columbia. Siio luul Ibnuurly lioeis known as the "Ait'ivd Adams," l)iit by Onlcr in Cxmcil datod liSth March, 188S, uiuh'r tlio I'rovisimi.sof Section 21 of tlio Statr.to 49 Victoria, lier name was i-liaiifjed to the '' Lily." Ilcr tonnage was Gi) tons. The owner waa Morris .\b)ss and lio as well ii.s the master 10 and mati! are dead, and no member of thecrew could be found to give evidence. The statement of facts relating to the seizure was brought to the attention of tln' Commission thrnngh the means of a statutory declaration made by Morris Mo.s.s, the owner, on the lOtli November, 188!', and the further declara- tion of John Reilly, the master of the "Lily" at the time of seizure, dated 11th September, 188!*, together with extract from the oflicial log of the seizing cutter and other document tary evidence. The " Lily" carried a crew of 5 whii • and 25 Indians. 20 On the 20th May, 18S!>, she cleared ^ Custom house, Victoria, for a fishing and hunting voyage in the North Pacific Ocean and Hehring Sea. She entered Behring Sen on the 25tli July. On the titii August, 1880, whilst slu' was in the sea, being in lat. u5'2l> N.; long. lOG'l.'i \V., at a distance of about (56 miles from the nearest land, tlie United States revenue cutter " Rush " overhauled the schooner. She was boarded by the Ist lieutenant, who asked how many skins were on board, which information the ma.ster did not give him. The officer 30 then stated that he wanted to see the schooner's papers. The master refused to acknowledge his right to seize the schooner tor sealing on the liigh seas. The 1st lieutenant then returned on liuard tiie "Rusli" and after a sliort time came back accompanied by another boat of the cutter, com- manded by the 2nd lieutenant. Both ollicers came on board and demandtd the surrender of the schooner and asked at tlie same time for the ship's papers. This the master refused at first and then the Ist lieutenant said that unless the paiiers were given up at once, he would take them by force. The 40 master then yielded and handed the papers, consisting of certi- ficate of registry, coasting license and clearance, to the ofKcer. The lieutenant then ordered the boats' crews to search the .schooner which they did and found and took away 333 seal skins, all in good order. 140 Tile seizing give iiim tiie , Ih( useless for master then t( sacks were ti master by the of which were tlie dcclaratioi seized lor a \i 10 was then ord where she arri the evening. It also appei nway at the sa The seid skii schooner " Lil> against at the and such proce condemned am -0 States, and sub the owner. Legal ami ot and presentatio Commission. Her Briti'.nni resulting from t \'«l illriral h. .Slii|.'> |.a|.ci> -'."i s|»'aiN at .s .'!.'i:t ^1 al .skins ILUvasiliai-i 'rillli' allil iA|. I'^stilli.ltiil rat NC-alillj; 111 IlitciT.st on all fnilii ilatc 30 TIIR LILV. 141 Tli(> H(>i//ni^ otlu'cr iiImo (luinaiiiKul llml tlio iiiiiHtci' .hIk^uIiI ^ivo iiiiii till! suit oil l>'>ar(l, Hii_yiiif? at tlii' hiuiio tiiiu! it wuiiKl l)c iiBoIoHH tor him to rot'usc, as lio could take it by furcu. TIk; iiiarttor thou told him to <;o ahead and hi'lp irmisolf, ami two >-ackH WLTo taki'M away. T\vo lottors were given to the mastor by tho olHccrK. One wan a soalcil letter, the content.-* of which were unknown to the masti'r at th(! time of making the declaration, but the other stated tiuit the '• Lily " had been Heized for u violation of the United States laws. The schooner 10 was tlieii ordered to Sitka, but, instead, came to Victoria, where she arrived on the 1st Sei)teml)er at seven o'clock in the evening. It also aiipcars that the spears of the Indians wore taken away at the same time. The seal skins, spears and other articles removed from the schooner " Lily " were taken to Sitka, and there proceeded against at the instance of the United States' District Attorney and such proceedings were liad, that they wore afterwards condemned and forfeited to the government of the Unitetl liO States, and 9ub8e([ucntly sold, and became a complete loss to the owner. Legal and other expenses were incurred in the preparation an |iii|icr.-i J."i IKI 2."i sprars at -SI r:iuli 1(Nmiii .•i:'.:i ~.al sKiiis at > at tin- fate of 7 |iif criit frniii dat"'«if ln^> until payiiMiit. ' .•.'i'l 1889. THE "MINN IK." Claim No. 17. i:. I \M. li ii;. i;. I till. lini' IW. I! 1 i:w. lilli' .">s, 1!. li:iii. lini' 70. i;. 1 1.;?. i;. ii.Mi. llIM- .'ill. I!. IIIL'. lin.' i:i. The scliooniM' "Mimiic" was owncil hy V'utor Jac(>l)S(iii. She was a now vessel liiiilt at Victoria in tiic year 18Si) ; and rciristei't'd as a British vosscl, (50 or 70 fcut lonij;, '20 feet broati anil 6J t'l.'ot (loop. Koitistcr tonnage 4'.)'6i) tuna. Slie was liiiilt tiy her owner ospoiialiy fur seal hunting and wasj in every way adapted lor that biLsiness. Slie was titted ont hy her owner in 1889 for a sealing voyage to liehring Sea. .Fin'ohson ijays ho internhnl to stay in Bchring Sea until IQ lOtli or middle of Septondjer. lie had stayed there the year before in a snndl soliooncr, and in the " Minnie,'" being a larger ve.-'ii'est caleli we ;("_ -tP T^* 1^ -Tf -TT The day, i; i ci i\ oi scixuri^ had, 74. It was the biii'irest {( li ol' sea's wt' made .")0 "Q. On the tlay lolh A. Went up iioithwan o\\ uig sei/iire wliere did you proceei it di th •1' .1 call (1 tl lev lowerei le next inormng. and fliey wen' out with their guns, (a] th lb tain Jaeol )son was tixmg up spears wlien thev were out. Th Indians wen^ not out very Ion: 'liev came liac'k ayain ; i\n\\ I'lii lid not lind ;inv seal Old tlu'v were ii.'t niiicii use with th shot-guns. They were good hunters with -pcai> And further on, he says; " When order ed away, we were about latitude 55 in' .Vorth \iid about 107 longitude West. Tlu'ii we steered towanls '' li. 1 1.1 GO I'liiniak Pass for probably twenty m He: 1 1(1 ,;■■;« i i 'I- 'il >:: 144 THK MINNIE. Iiii, i;ii. I!. 1117, lllM' IIS. I!. 1 l.".ii. liiii'-.'ii. " Q. Oil the same day? A. Yos, until evening; we kept going to tlie pass niitil evening, then we steered up here (indi- cating) to the north-east, and the next day we lowered boats and got a few seals, I i;aniiot say how many, probably 18 or 20, and then we worked up here, and done the rest of our sealing by Anak Island. "Q!^ (live the latitude and longitude. A. About 55° 40' latitude North, and longitude West 163" 40'. We saw Anak Island on several occasions, and it was bearing north-west to west, '20 to 40 miles oif. Tliat is wliere we done our sealing." 10 He proceeds : " We came out of the Pass on the 17th of August, when we quit sealing, I should think, on the 12tli. We remained always about the same phuu'. viz., near iVnak Island ; never left that place until we started forhome. l''ronithe 15th .Inly, until we left Bebring !?ea, we took 483 seals. # * * " Q. Did you find good sealing ground near Anak Island, where you remained'.' A. No, sir, seals were scarce. "Q. Why did you leave to come out? A. AVell, the In- dians refused to work ; in ia';t, that was the second time they 20 refused to work. " Q. Why? A. There were no seals to sjieak of, and they were in fear of coming in contact with the cutter again. " Q. What kind of hunters had you ? A. We had very good hiint(}rs, we had the pick of two tribes : the Xitnat and some of the Dofljrei' (.'ove tril)es. The white men were aieo good huiirers. " Q. For what time did you intend to remain in Behriiig Sea ? A. 1 should think we would have remained uut^il the 14tb or ir.Ji September. 3u '■ Q. Was there any talk when you lett lor i^ehring Sea as to the time you would have remained ? A. The talk between me and Jacobson was thai we were going to have 2000 seals, and that we would not come out before we got them. "(J. Was there any mention ol tiie catches having been made in I'eliiiiig Sea in September the previous year? A. (.Captain •lacolisoii hail stayed t^ome time in Sc}iteniber the year before. lie came out .«oine time in September, and tiie next year I 40 went as master, I came out in Se|itember. •• Q. Did you tiud any seals in September ? A. Yes sir, I done well in Se]itcml)er ; I got over HOO seals in Sejitenibcr. " (i. Well, it ynu had not been ordered from Dehriiig Sea, would you have gone towards Anak Island ? A. No, sir, we would not have sealed there, it is not a good sealing ground. " (I. Where would yon have gone ? A. We would have remained there mi the scaling groniid about oo' Id'or 1.')' lati- tude N. and abmit 107' longitude W. " (}. That is well known to lie ;i good scaling ground ? 50 A. ^'es, sir, Captain .laeobsnii bad beci there two years before, anil be knew :ill about it. We liad very line weather in .August.'' Further on be says : — " The seals wci'C very scarce : be lnok a small catch evcrs' ilav. and WKi wurkcd scry bard to gel them." .laeobson says ilicy also got eight sea otters. Captain Shephenl in his report to the secretary ol the trea- sury, dated August !llh, 18«it, says :— " .Inly the 1 'ith, I sei/cd, latitude TiT) I 1' N'orlb, luiiyitude 50 30 lor w st I'lll niinak isiani (I. b S. Iv by E. IHB MINNIB. 145 52 miles distant, the British schooner " Minnie ", Victor Jacobson, master and owner. " She had been in Behring Sea since the 27th of June and was found to have 418 fur seals on board, about 200 of which the captain admitted had been taken in Behring Sea. " I placed the vessel and her officers in charge of seaman Swanston ( if this vessel with instructions to proceed forthwith to Sitka, and on his arrival at that port to place them in charge of the United States District Attorney for the District of 10 Alaska, and to set her crew, viz.: 3 white men and 16 In- dians, at liberty." The same fact is entered in the log of the " Rush ". The seal skins, spears, and other articles removed from the r. uw, " Minnie ", were taken to Sitka and there proceeded against ''"" *"' at the instance of the United States district attorney, and such proceedings were had that they were afterwards condemned and forfeited to the Government of the United States, and App. B. 270. sold, and became a complete loss to the owner. 20 Legal and other expenses were also incurred in preparing and presenting the claim prior to the appointment of this Commission. Her Britannic Majesty claims the following damages as resulting from the premises : 30 Fur illegal iHiiinliiig, Hwircli and iincst of scliooiier 8 2,(«K) 00 20 BiH-ai.s at ?» 1 b''"i 1 B'l" Sliip'u pa|iois llclyt'jx'H t'liargen Tiuifand expriwo iif (iwmr 420 skins act\mlly scizcil at $11 App. B. 290 60 00 55 00 10 00 25 00 250 00 200 00 4,i;20 00 Kstininti'd fatcli if sclnHinir liavi' itiMns at the latr (if 7 per cent frmn datci.t l.ws until pnynient. ill Om ii BB— 19 1889. THE "TRIUMPH." Claim No. 18. Ai.p. li. -2- K. 141'.l, line »>. line 45. K. Hl'.i. K. H'.'o, line 10. K. 1 Ijo, liiu' 41. The scliooner "Triuiiiiih" was a British \-e8.sei of 100 tons register. Slio was purchased in Nova Scotia in 1887, and cost, laid down at Victoria, the sum of §8,250. After arrival at that port she was coppered at a cost of $1,117. In 1888, she went upon a sealing voyage to the North Pacific Ocean and Behring Sea and made a catch of 2500 skins, 1803 whereof were taken in Behring Sea. 10 The outfit for the season of 1889 was obtained partly at San Francisco and partly at Victoria, the expenditure at the former place being §2,975.19, and at the latter §1,428.58. Advances were made to the crew, amounting to §1,692.51. The total investment, therefore, which was at stake in the sealing voyage of 1889 was §15,425.23. In outfitting it was the intention that the voyage should last as long as the master, Daniel McLean, could possibly remain in the sea. On that point the evidence of Mr. Baker, one of the owners 20 is as follows : — " Q. I believe that you did outfit the vessel in the very best way ? A. Yes, we gave her everything that it was possible to give her. "Q. Did you give him any instructions as to the time that he should staj- in the sea? A. Well, of course, I am not really positive as to instructions, I was simply one of the partners managing the affairs of the fcchooner, and a good deal, iioce.-isarijy, would be left to McLeai.'s discretion because it was he that got me to go into that venture. Naturally, I 30 would be guided by his report as to the circumstances when he was to return. But it was distinctly understood between him and myself that he would remain there to the very last of the season that ho could catch .wals, so as to ascertain, if possible, hmv long that season really did and could last. "Q. Was there any understanding at all to that effect ? A. Yes, he was to remain there until late in September. " Q. That was fully understood ? A. Fully understood be- tween him and me. In fact ho wanted to know something about what became of the seals after they left the sea, includ- 4q ing the I'ribyloff Islands. He wanted to go a little voyage of discovery to a certain extent, and trace them and probably do some sealing at tin' same time. " Q. It was mentioned between you, or understood, that he could stay there rmtil pretty late in September? A. Oh, yes. The previous year he bad come back on the 10th of Septem- ber, and lie hiid evorj-thing on board that would enable him to stay there until the end ef the year for the matter of that. "Q. In lfi89? A. Yes. 146 THE TRIUMPH. 147 it;:! ill " Q. He had an amount of provisions to get home in the latter part of September? A. Oh, yes, to the end ot the year." hi linu 51!. The " Triumph " carried a crew of 32 white men, including H. i42-', the master, eight hunting boats and the stern boat. She cleared in the spring of 1889, for a sealing voyage to the u. 1418. North Pacific Ocean and Behring Sea, and entered Behring Sea on the 4th July anJ commenced sealing. Between that K. u;m, date and the 11th she took 72 seals. On the 11th uf July, 10 when she was in Lat. 56-05 N. ; Long. 171'23 W., at about 8.30 a.m., she was hailed by the United States revenue cutter " Rush," a boat was lowered from the cutter in command of Lieutenant Tuttle, who boarded the schooner, demanded the papers of the vessel and after reading them proceeded to search the vessel. Finding no evidence of seals on board, the officer informed the master that orders had been issued by the Secretary of State under the proclamation of the President, in- structing the commanding officer of the revenue cutter to seize all vessels found sealing in Behring Sea. The officer 20 also said that if he should again find the schooner with skins on board that he would seize and confiscate the vessel and catch. He further stated that ho had already seized the " Black Diamond " and that she had been sent to Sitka. Under terror of the threats and action of the officer, the master immediately discontinued his voyage and proceeded to Victoria, arriving there on the 28th July. There is a special question arising in this case to which reference should bo made. Twenty-two shares of the schooner were registered in the name of one Daniel McLean, who, it 30 was alleged was naturalized as an United States citizen, in the year 1882. This becomes immaterial, us it was proved by the evidence for Great Britain that he had been re-naturalized as a British subject before ho acquired an interest in the Triumph. R. 1955, lini' ."id. R. v.m, line 15. R. 1957, linu 35. Another question raised was that before the commencement of the season of 1889, Baker had entered into a contract with k. i tu2, Liebes & Co. to sell his catch at §0.25 a skin, and it is claimed ""' that no more can be recovered. A sufficient answer will be found in the fact that the contract with Lieljcs & Co. was i^ i.(.-,;<, 40 subje(!t to certain conditions which were of an onerous nature, j{"i,"i4.-,4 namely the sending of a steamer to some point near Behring Sea, to take a transfer of the "Triumph's" catch and bring it to Victoria. This condition was made necessary through fear of seizure. It would therefore, be manifosfly unjust for the United States Government to claim the benefit of a contract which would never have been entered into if they had not committed and threatened to repeat acts now declared by the Paris Tribunal to have been a breach of international law. I'll U I I I. I I 148 THB TRIUMPH. Again, it is contended by Great Britain that the United States being wrong-doers cannot take advantage of a contract of this kind to lessen the damage payable on account of the tortious act complained of. K. 1433, line 27. In consequence of the breaking up of the voyage, Baker determined to abandon the sealing business and sold the vessel and equipment at a very large loss to the owners. It is submitted that in assessing the amount of compensation to be awarded, this fact should be considered. The evidence shows that the schooner and sealing outfit was actually sold for ^9,000. 10 Legal and other expenses were incurred in preparing and presenting the claim prior to the appointment of this Commission. Her Britannic Majesty claims the following damages as resulting from the premises : — Illi')jiil Ijoarding and scarcli of the vessel -^ 2,00<) 00 Legal and other ex|)ciise» , 250 00 Time and expense of owner 200 00 Kstiniated eatch (8 huntinjf boats and stern Iniat from nth July to 1st Octolier) :!,r,00 skills at S11 38,500 00 £0 ■10,950 00 Interest on all tlie aliove items at the rati' of 7 I'er cent, from i, , line 30. class men. The vessel left Victoria for Behring Sea on the last day of r, hoi. May or early in June, and entered the Sea on the 13th of July. "" '' Before entering the sea, the seals caught on the coast were ^ i.i,i|_ transferred to the schooner ""Wanderer" at Shumigan Island "• '■"'"• or Sand Point. On the 30th July, about 6 a.m., the American revenue }{. ]m,7, 30 cutter "Rush" came alongside the schooner, which was'""'''*' then among the seals and had run up the British (lag, and sent officers on board to examine and search the vessel. In- quiries were made as to the number of crew on board, the time of their entering Behring Sea, and the number of seals taken. The officer of the " Rush " also warned the schooner that if caught with fresh skins on board they would be seized. On account of the fear inspired by the action of the cutter, the boats did not go out at the usual hour in the morning. The seals, however, were very plentiful about the ship ; the 40 witness Smith says, they were tiiicker than he had ever seen R. iiki, them before at any one time. Therefore, about 9 or 10 o'clock in the morning, after the cutter had left, it was thought the boats could make a catch without being observed H. iii!:', '^ . . . liiif li"-'. by the steamer though its smoke was still in sight. The orders were to remain near the schooner. Some of the boats in their eagerness to catch seals got out of sight. On the 149 if; i^M m 5 m -i'm fm^m^^ 160 THE ARIEL. K. Has, linn 1)5. K. HNS, line IV). K. 1 IWt, liiir S6. K. 14Sn, liiu< 2'), K. Hta. R. 14«3, line 50. R. H(i3, line 10. R. 1464, line 60. other hand, others remained on board most of the day through fear. The witness Qerovv says that but for this circumstance, he would have got 30 or 35 seals that day, instead of his actual catch of 5 or 8. Notwithstanding these interruptions the schooner took 120 seals that day. On the 1st August a thick fog came up at times ; tiie boats were all out, but in the evening one of them did not return, having been lost in the fog. On the 2nd Augu.st a strong breeze was blowing and the schooner started a search for the missing boat. The wind afterwards increased to a gale, 10 obliging the vessel to heave to for the rest of the day. The 3rd August was still stormy and so was the 4th, and the whole of that day and the 5th was spent in looking for the boat. On the 6th August the boats were out and got three seals only. The 7th was a fine day and the boats took 65 seals. On the 8th which was a rainy day and thick weather, the schooner "Lillie L." was spoken and reported news of the missing boat. On the 9th the boats were out and took 26 seals. The 10th was a lowering day, but the weather was not such that the boats could go far from the ship, and only 15 seals were 2q taken. On tlie 11th the boats were out all day and took 45 seals. The 12th was also a lowering day and the boats were out most of the time and brought in 25. No sealing was done on the 13th. The 14th was a lowering day with 14 seals for the day, and on the 16th, 111 seals were taken and 12 on the 16th. On the 17th the wind was south-west and the weather foggy. The vessel was lying under mainsail — 1 seal was shot from the deck by James Shields and many others were seen from the vessel during the day. On the 18th, the entry in the log of the schooner reads : „« " First part of the day moderate breeze with fog at times Boats out and returned at 10 a.m. with no seals except Walker who brought in one. At 11 a.m. spoke the schooner ' Mary Delio ' again. They report that 12 vessels had been seized up to the 12th August, many of which are Victoria vessels, among them being the ' Black Diamond ' ' Minnie ' ' Pathfinder ' ' Viva,' ' Mary Taylor,' &c., also the schooner ' Lottie ' which picked up our lost boat and men. Have now decided to leave the sea at once at it is quite clear that many seizures will be made this season, perhaps all the vessels that remain in the 40 eea. The schooner ' Mary Ellen ' is reported to have thrown overboard 700 seal skins while the cutter ' Rush ' was run- ning up on her, which probably saved her from being seized." |{. I4(>7, 1iiir:!0. K. 14H4, inu 10. The "Ariel " passed the 19th in Four Mountain Pass, work- ing her way out of che sea. She also was there, with light variable winds, on the 20th, and on the 21st got clear of the Pass and made for Victoria. It was the intention of the captain, if he had not been inter, fered with in July, to have sealed during the season to the W S.W. of the Pribylov Islands, working from that position 60 around to the W. N.W., and finally to the W., within a radius of from 60 to 120 miles of the Islands. But after having been warned on the 30th July, the master says that this course THB ARIKL. 161 lino 21. was changed, and from that time forward the schooner left the good sealing grounds and orders were given to the boats to keep ahead of the vessel which was working slowly to the south in order to be near the Pass and ready to leave the sea at once if the cutter should again appear in sight. This evidence R. um, is corroborated by the witnesses, Smith and Gerow. Legal and other expenses were incurred in preparing and presenting the claim prior to the appointment of this Commis. sion. ^^ ITer Britannic Majesty claims the following damages as resulting from the premises : — IlleKiil Imaiding nnd search of the vchscI .? 2,0(10 00 Lt'Rnl and ether e.\|K'iise.f '2M Tiliie and exixMise (if owner 20(1 00 Kstiniatcd catch (I! boats and 1 caiUH', from :ht. Wo 10 luijfht get a day's hlow, hut then we didn't mind that. I ex- l)eeted lots of tine weather after that «hiy." See also Uepiien's cvidenee on tlio sanio point. |{. i;(H.\ lillr TlS. fiCgal and other expenses were incurred by the owner, in preparing ami presenting the claim prior to the appointment of this Conunisbion. Iler Britani\ie Majesty claims the following damages as result- ing from the premises : — r. Ivi-mV 1 iiiiip'!* Tiiiii' iiiiil i\pi'iiM' iif iiwiicT •M) nil |-',^lilll;iti-'l Cillrli it >('lliKiiir|- ri. •! ilitt 1 1'l'ltii w illi (Scail'»»'>^ ami I stiiii lioivt, I'lcnii IHtli .\\it,'ii-t tci \-l ( )cliil)cr, li'<^ lis -l,iii> uclMiillv tiik.ii iifK r rtiiniiiij,'), l,!l'.»t at sll :.'I,!WI (Nl .*L''-',!WI IM) liitircst 1111 all till' aluiM' iti'iiis at llir latr nf 7 I'l-v ciiit fiiiiii ilalriif hi.'.s until |iayiiiiiil. » S- •JO ■ MINI. !l; TITK "PATH FIN DKIl." Claim No. 21. K, M-.M :t, U. -HI-'J. If. H2I. II :.SL'. .\ s-j; H. 7H1, ML>2-3. U. KL'3. I!. IHlll. In Marcli, 1890, tliirt scliooncr was tMigaged sealing in tlio iieiglil)()iirhootl (»t' Ni-ali Hay, with a crew of wliite men, ami eqnippt'd wilh live itoats and a stem boat. One Marvin, now dead, was captain, and one Alex. Hcppcn was mate. On 2(5th March, while off C!ape Flattery, her rudder was damaged and she put in Neah Vay for repairs. Tlie !'Ci)airs wore completed and slio intended to leave the next morning. Neah Bay is about 20 miles from the bcaling jq ground. Early in tlie morning of the 27th, an ofHcerfrom tlic United States cutter " C'orwin " boarded the " I'athfinder," examined her papers, seized the vessel, sent a crew on board with a tow line, and towed her from Neah Bay to Port Townseml, a dis- tance of about t!0 miles ; the voyage lasted from 6 a.m. till noon. Port Townsend is out of the sealing ground. On the way and while at Port Townsend an officer from the cutter renmined on board the " Pathfinder." The crew were kept on board (though some of them asked 20 to go ashore) the whole of the 27th, the 28th and nart ut' :ho 29th, when the schooner was released. The following telegrams were exchanged in connection witli the arrest and releasi' of the " Pathfinder" : — On 29th March, 1890, C. L. Hooper, commaiuler of the " Corwin," telegraphed to the Secretary of the Treasury at Washington : — "I found at Neah Bay to-day British schooner ' Pathtinder.' Escaped from steamer ' Kush ' alter seizure in Behring Sea last year. Have detained and brought her to this place and go transferred to custody of collector of customs pending advice from the department." On the same day C. M. Bradshaw, collector of customs at Port Townsend, telegraphed to the Secretary of the Treasury at Washington : — " Am detaining British schooner ' Pathtinder ' and waiting instructions ; please advise." On the same date again, G. B. Tichuor, Assistant Secretary of the Treasury, telegraphed to the collector ot customs at Port Townsend : — 40 "In the year 1887 the department in a case quite similar, but in some respects stronger, lor the department decided that the vessel could not be held. In view of that precedent, without now reviewing the principles upon which it proceeded, I direct release ot the ' Pathlider.' " 154 THE PATIIKINbER. 165 Tho schooner whb ncconUiifjly releasiMl. It'slio had not been intcrforod witli wh»' would liavo rusiimod Huurmj^ on tlie 27th of Maruh, and no doubt would Imvo continued tor Hun>c tirno, but under tlio circumstancert she went to Victoria. The locality in question wuh always coimidcrod a good soaling ground, tho best in that vicinity ; it was much fro(iucntod Ity sealing vessels at that time of year. It was the time of year n. thi; a m;. when seals were caught in that neighbourhood. Most of tlio scalers go t here every year and very good (latches are made. 10 During the time that tho " Pathtinder" was detained under arrest the weather was good, and other vcHsels lowered their canoes from day to day. Had the " Pathfinder" not been interfered with she would no doubt have caught at least 100 peals. Legal and other exiionses were incurred by the owner in preparing and presenting the claim prior to the appointment of this Commission. Her Britannic Majesty claims the following damages as re- sulting from the premises : — 29 llli'j,'al Ihuii'iIIiik. Miiicli mill iiiir»l uf tlu' ii^wl Kstiniiiti'd ciitcli, KKt HcalM n\ Jjlt) rriMiiiiiU unci legal cxiKliscH .s •J.tMKP l,r)il(i *'f,7U0 llitiri'st (111 all till' alMiVf items at the lute of 7 per cent friiiii iliite of loss until |>:iyiiient. Uifl I 1892. THE "HENRIETTA.- K. KmO, liiK' 41). 1!. Ii;ti7, liiii' lid. li. Kilil. lilU' Ij. K. ii;iy lillr L'll. Claim No. 22. Tlie " Henrietta '" was a Ufitish scliooiior l)iiilt in the your 188(5. registerud at the jiort ol' \'it'toria, •'•i-t] t't. long, 10'(5 ft. inhreadth anil '> t't. in (k'pth : her rogisteied tonnage was 80'r)2. At the time of seizure liereinafter mentioned, the seliooner was owned by Charles Spring and James Fell. In the spring of the year 1886, the "Henrietta " started for a sealing voyage to the North Paeiiie Ocean and Behring Sea. K) Her master was Micajah Pinckney. She carried three boats and eight eaiioes when she eleared from Vietoria, hut before entering Behring Sea she left six of her canoes at Tonki I3ay. On the 4th September, 18lt2, whilst in the open waters of Behring Sea, 70 miles from land she was boarded by an officer from the Tnited States ship " Yorktown." Captain Pinckney describes wliat took place as follows: — " We were Hying tlie British Hag. The boarding officer demanded the sliips papers. After I objected he said that he 20 was there for that purpose, and he was bound to have them ; then after I gave them to liim, be wanted tlio guns ; after he got the guns, be ordered my white crew into the boats and took them away in the ' Yorktown.' " All but myself and the cook were taken. An officer from tlie 'Yorktown" remained on board with si.K men, with instructions to make sail towards Ounalaska. The weather was very rough at the time and the 'Yorktown' could not take us in tow. The schooner sailed to Ounalaska in charge of the 'Yorktown's" otiicer. We arrived at Ounalaska on .SO the r)th September. "Q. Did anything take place at Ounalaska? A. Well the officer was on board, lie went on board of bis own ship and he left a coufile of men on board to take charge of the schooner, and then the officer of the ' Corwin " came on board. He said that the vessel had been turned over to him ; that he would put a watchman on board and not allow anyone togo on .■^luu-e I'rom on board the vessel. "Q. What took ];lace next y A. Well, J think that it was the next day, Captain Hooper sent forme. Previous to that 40 he .sent for the cook ; then aft(>r the cook came back lie sent tor me, and on going on board be said that ho had been infor- med that I had violated the customs laws, and that lie was going to tow me to Sitka, and put me before tlie I'nited States District Court, and if 1 got clear he would tow me to Victoria. "(i. Were you told before that day that yo : were arrested for liaving violated the revenue laws? A. The officer that lioarded us did not say that, he wanted to (!0unt the skins, and I said wliy not let them l)e until we get in ; he said, I want to get them ready .so as to turn Ihein over to the British man- oO ol'-war. lot) TUB lIFa-IKIETTA. 157 " Q. Giving you to umleri«',iiii(l what? A. llu gave inc to undei'staiul in our convoraation that wt> would l)o turno(l over to tho Briiiwli tnan-ot-war. " Q. lint lio didn't say in any way nor in expressed terms tiiat you were seized tor iiaving violated tlio modua rinnidi .' A. Well, when I objected to being seized, 1 told him that the moilns rivnuli had exi>ire(l as 1 understood at the end of May, and he said tluit it had been renewed # ^ * * On the 9th of Mareh, tlie " Oorwin'' came alongside, took us in tow, i;. \mx 10 iuid proceeded towards Sitka, still leaving the prize crew on board. After leaving Ouualaska the tow rope [arted in a gale and we v.'ere ordered to sail to Sitkn, wbich we did, Tlie schooner arrived at Sitka on the 2iitii Se[itembor. "The next day, Oaptain Hooper tock the skins oft' and took them ashore. There were 420 skins, and then the schooner was turned over to the United States Marshal, who sent a man on board and took charge of her." The master remained on the schooner for a day and then went ashore ; after his arrival at Sitka he was not interfered 20 with personally. He remained there for 2 days and then went to Victoria. He had no money to pay his passage, but arranged to pa3' it at Victoria. The crew were kept at Sitka, both Indians and white men. The master does not know what became of the Indians after the skins were taken from the ship. When the master left Sitkfi, the crew v/ere in jail, lie was at the jail the day before he left and saw them. lie thinks they were put in there to [irevent them from going away on the steamer in which he went to A^ctoria, viz: — the 30 <• Coquitlam." The master paid -SaO to go to Victoria, and he incurred a K. icnt. small expense at Sitka. He says that he went to Victoria to report to his owners, where he reiiuiined until the following July, wlien he beard that his vessel was r 'leased. Tie then j)ro- ceeded to Sitka again, and found that the authorities hail received orders to release the vessel, but they refused to deliver her to liini, and she was not actually released until the 23rd November, 1898. Her tuaster further says that whilst at Victoria, he incurred 40 an expense of about §000 from the time be got down in Sept- ember until he got back to Sitka in the following July, ami that tliis was outside of his jias-sage money which cost bini ^50 each way, Atter the vessel was delivered to him he was delayed for some time, and sailed from Sitka about the 20tli or 2:)r(l -lanuary, in the " Henrietta" and arrived in Victoria on the 17th February, 1S94. Being asked wluit caused this delay, he answered ; — " Well, we bad no provisions, and had no way to get any." He state.i that the vessel was looking [iretty well ble;iched ; -,o her riitging bad been lyini;- on her and the rain iiud fros' |iut it in bad condition. He bad to get .i new foresail and a lot of runniu"' gear He got away as soon as he could. Whilst at Sitka be incurred considerable expense both on i)er80iud account ami in getting the shiii in order. His per- sonal expenses amounted to $148. \: I ^^i ■ '•1 158 THE IIBNUIETTA. R. llilio. U. li>lUi. H. lili!7. I!. 11171. li. ii;rii. lillciiV K. ir,7L', I ill.' r,->. It. 11171, lillr (ill. I!, h;;." Tho 4"20 r'kiiis tliat had licoii soi/.cd wore (U'liverod hack to him a few days after the vessel was retiiriic except the master and cook, until after the steamer "C()•■* would have notliing to do with her." The price asked was §1,500. Fell took some of the guns outof her. a chronometer and a lot of sundries. He sold the u ,;|,s eight guns ami a rille all damagoil for ffl.W. i"" -'" I- r- ■ :i. III.' I!. 1711, ft 160 THE irENlUETTA. I!. I7:«. I!. 17:il. liiii- .M(. Tlio vessel was aftorwarils sold hy the Sliorift'ol' Victoria on an uxet'iititm issued at the suit of .\[eC2iiade I't Sous against CMiarles Spring. His interest, only, was sold under the exe- cution for ??1,000 to Charles Haekett. Chiirles Spring says he was managing owner of the " Hen- rietta." She was in vt'ry good condition wlien she left forlier sealing voyage in 1892 ; he saw her at Kyuipiot when she was leaving. S[iring at this time was trading at Kynquot and sjient nearly the whole of his time there, lie heard of the seizure 10 from Cajitain Pinckney when he came down from Sitka in 1802. lie was not in Victoria when Captain Pinckney went to Sivka in July, 1S93, and he had no idea that Pinckney was intending to go there. Spring was then at Kyuquot attending to his business ; he did not authorize Ca^itain i'inckney to take delivery of the vessel nor did he receive any letter from him whilst he was there (Sitka), in 1893. Spring was not at N'ictoria when the "Henrietta" came liaek ; he was still at Kyuquot. She was repaired when he came back. 20 Spring further says that he would have used the " Henrietta " during the months of l)ecend)or, .lanuary and February in the coasting trade, and for that purpose she would have been worth $250 to ^.300 a montli, and after that he would have lifted her out for sealing for the year 1893 ; and he further states that he himself was put to considerable personal expense in the matter. H. 17.i7 It. ii;.Mi, liij>' 1.(1. William Turpel, a ship-builder, states that he knew the " Henrietta" in 1891, when he hauled her on his marine rail- road and repaired her. He gave her on that occasion a 30 general overhauling; made new bowspirit, new main mast; pur a new shoe on iier, caulkcii her and did everything that was necessary. The repairs cost about !?'290. She was then in first class condition. He states that at that time she would be worth about -S4,000. She was seemingly \cry nearly new and in good condition. She was a shallow vessel, not very deep in the hold, l)ut a good vessel With the view of ascertaining w!nther the " Henrietta " had been guilty of a breach of the revenue laws of the IJniteil States, her crew were examined on oath by the ollicer 40 of the '' Yorktown " as above stated, and from inlormiition so oblained the e )mmander ot the revi'uue cutter determined in- stead of jirosecuting the " Henrietta " under tli-' terms of the iiioilus vin H
  • tain Hooper, of the cutter 'Corwin' to seize the 'Henrietta' for violativ^i: r>f sections 28G7 and 2868, Revised Statutes of the United States, and to proceed with her to Sitka, and there to deliver her, etc., to the Collector of Customs. 4(: * # * # I, at the same time made a declaration of 30 seizure against her for violation of the modus vivendi and sent the same to the District Attorney with a request that in case of failure to condemn her on the charge of receiving and transferring cargo in violation of the Revenue laws, she be turned over to the British authorities at Victoria tor trial under the modus vivendi.^' It may here be noted that there was no ground whatever for seizing the vessel for a breach of the Revenue laws. The facts alleged in the seizing officer's rciiort were utterly insuffi- cient to lay a foundation for such a seizure. The acts said to 40 have been committed by the 'Henrietta' co'.stituted no breach of such laws, and even if they did, clearly did not authorize a seizure of a British registered vessel on the high seas. On the 22nd September, 1892, the United States Attorney for the District of Alaska libelled the "Henrietta" in the United States District Court in and for the District of Alaska. The charge was that on the 20th June, 1892, within the limits of the Alaska collection district \a Tonki I'ay, certain goods were unladen from the schooner " Kate "' and received on board 50 the si'hooner " Henrietta," and that on the same date she had entered Tonki Bay, and had failed to report at the office of any Collector of C'ustoms, and that the " Henrietta " had trans- ferred certain seal skins on board the schooner " Kate." BS— 21 1 1 III f. ii ^^■■"■lip 162 THU HENRIETTA. R. Iisiis, liiii' ."> '. R. IU"i2, liiu' 41. I!. l(ir.:i, line HI. Process was issued on tliis ititbrmation and the vessel arrested thereunder. The master retained counsel, Messrs. Hughes & Hastings, of Seattle, to defend the case, and a very considerable expense was incurred in the defence ; a number of witnesses were examined, and on tlie 9tli October, 1893, it having become apparent that the proceedings against the vessel could not be sustained, the United States Attorney moved to dismiss the libel and to discharge the vessel, lier boats, tackle, apparel and furniture. 1Q Diplomatic correspondence took place between the (Jovern- ments of Great Britain and of the United States from which it appears that the latter (ioverninent admitted that the proceed ings against the vessel had been iniiiroperly taken and com- pensation should be made. On the 10th February, 1893, Mr. Foster wrote to Sir Julian I'auncefote stating that charges were made against the " Henrietta'' for violation of sections 2S67 and 2808 of the Revised Statutes of the United States, relating to Revenue laws, and the schooner was thereupon delivered to Captain 20 Hooper of the "Corwin" with instructions to take her to Sitka for trial upon the latter charge, and in case of failure to condemn her upon the charge of violating the Revenue laws, she was to be turned over to the British authorities at Victoria for trial for violation of the modus vivendi, and stating that so far as he knew the trial had not then taken place. On the 15th February, 1893, Sir Julian Pauncefote wrote to Mr. Foster stating : — " You expressed no opinion on the statements of facts con- tained in your letter, but I should be much surprised if 30 you did not share my views of the extraordinary proceedings which it discloses, as in my opinion no doubt canbe enter- tained for a moment of the illegality of the detention of the ' Henrietta" at Sitka. I venture without further ins- tructions from my Government to submit the Ibllowing obser- vations to your attention. The seizure of the 'Henrietta' in Behring Sea, 70 miles from land, was only warranted on the condition that the vessel should be delivered to some British autlu)rity as provided in the modus vivendi, but the vessel having been seized under that power, was then forcibly 40 drawn within the jurisdiction of the United States for the purpose of enabling a totally distinct charge to be preferred against her." He then [joints out that there was no foundation for the charge of breach of the revenue laws nor justification for seizure on that head, and says — " In view of the above con- eideration and of the indisputable fact that the seizure of the ' Henrietta ' was only warranted by the modus vivendi, and for the purpose of handing her over, as therein provided to the British authorities, I trust that you will move the Presi- 50 dent to order that tiie vessel be dealt with in accordance with that international agreement.'' In reply, Mr. Foster wrote Sir Julian Pauncefote, on the 2l8t February, stating that he had comuiunicated a copy of his 60 THE HBMRIBTTA. 163 letter to tlie Attorney General with the recommendation that the vessel be handed over to the proper Uritish authorities for trial under the 7)iodus vivenili ; such action, however, to be without prejudice to any and all the rights that the United States had, or might thereafter have, as regards the charge of violation of the Revenue laws of the United States. On the 15th April, Sir Julian rauncot'ote wrote to Mr. Gresham detailing the facta connected with the seizure of the "Henrietta," jiointing out the duty of the United States Gov- 10 ernment under the terms of the inndus vivendi and stating : — " It is clear, therefore, if the ' Henrietta ' was seized for vio. lation of the modus vivendi, she should have been turned over as soon as practicable to the Britisli authorities, which alone had jurisdiction to try this oftence and impose a penalty for the same. Instead of this, however, she was forcibly detained at Sitka, under process of an Americun code of law for a period of six months, and is only now about to be released, in conse- quence of the representations of Her .Majesty's Government and on the conditions and reservations, to the justice and pro- 20 priety of which they are unable to assent." And further he adds : — "Both the original seizure of the ' Ilcnriotta ' and her de- tention for so long a period after seizure, appeared to Her Majesty's Government to afford subjects of just complaint, and I am accordingly instructed to point out that the seizure was unwarranted except under the modus vivendi, and was only permitted under that instrument, on the condition which was not fulfilled in this case, that British vessels soized should at the earliest opportunity be delivered to British authorities, to 30 which authority alone has been reserved the right to try the oftence and impose a penalty." And further on : — — " the detention of the vessel from the 4th September last to a recent date was unlawful, because by international agreement the United States Government cannot hold, but must deliver over as soon as practicable to British authorities, a British ship for violation of the modus vivendi." On the 6th June, 1893, Mr. Gresham replied to the last let- ter, and stated the modus was the only authority under which 40 the seizure was justifiable and seizure under it involved com- pliance with its terms. " I have to admit that the taking of the schooner to Sitka and her forcible detention there under process of the court ot the United States for violation of the revenue laws was an infraction of the international agreement. I regret the delay to which you refer in the delivery of the vessel to the proper authorities of your Government for trial, and a careful consideration of the tacts constrains me to with- draw the reservation mentioned in my predecessor's note of the 2lBt E'ebruary last." 50 Further correspondence took place as to what disposal should be made of the vessel, and in answer to an in(iuiry on the matter, Sir Julian I'auncefote wrote to Mr. Gresham : — " I have now the honour to inform you that in reply to the above inquiry. Lord Rosebery has instructed me to request K. 1115,-, lino 35. I!. 1(151!, liiH'34. I!. li;r,>i, liijr 1. .; P 1!. ir.r.ii, line III. 164 THE IIENRIBTTA. K. i(;r>s, linr "w. R. KWlt, line 50. that the ' irenrietta' be sent to Victoria umlor the exact terms of tlie modus vivendi or be left in cliarge of her captain at the option of your Government." On the 2n(l September, 1893, Mr. Greahara, telegraphed to Sir Julian Panncefote, that tlie Attorney General informed him that the libel had been dismissed and asked whether it was the desire of the liritish Government tiiat the vessel should remain in charge of her captain or whether the United States should send her to Victoria. It may be noted that this statement was inaccurate, as tlie jq record at .»!itka discloses the fact that the libel was not dismissed until a month after that date. Again, on the 4th September, 1893, Mr. Gresham wrote to Sir Julian Pauncefote, as follows : — " I have just received your letter of the 2nd instant. I handed to the Attorney General a copy of my note to you of the 6th June last, that he might take the necessary steps for the release of the ' Henrietta ; ' but it seems the libel was not dismissed until a recent date, perhaps a month ago. " I thought that, although the captain of the schooner and .,q part of his old crew were at Sitka, it was my duty to bring the " matter to your attention and learn the pleasure of your govern- ment as to what should be done with the vessel. It may be that the captain would prefer to take charge of her where she now is." On the 14th December, 1893, Mr. Gresham wrote to Sir Julian Pauncefote stating : — " I wrote on the 2l8t October to the Attorney General communicating the conclusions reached, and that on October 28rd an instruction was sent by the Department of Justice by telegraph to Seattle and by mail oq thence, directing Marshal Porter to notify the captain of the ' Henrietta ' that the vessel was released and was subject to his absolute disposal." Ap. B. 2S2. K. 1738, lini" .50. line 45. Her Britannic Majesty claims the following items of damage as resulting from the premises : l)c|iri-ciatiiiii ill value (if vi-sscl .*2,0(M) (K) ;i liiKits ilcstrcpyi'il liy wnriiis, at .'"i.sri lacli . . 20ri 00 Lus.s as slidwn liy Kxliiliit S, pape 108 913 00 Legal expenses at Sitka tl2 fiO lielyea's hill ri pi-oi-eeilings at Sitka 113 00 Adilitiunal expense fui- taking evii'eiice at \'ictni-ia. .... 25 00 Helyea's eliai'Ke fjdO ()() 10"> skins suld at Sitka, at .*15 a skin 1,.')75 00 2 skins absolutely destroyed liy rats, at S15 30 00 Loss un 313 skins sold for ?11, instead of i?15 1,252 00 Lo.ss of use of " lleiirietta" for 3 niontlis, Deeeiulier, .Tan- nary and Kebruary, at *3(MI a iiiontli !MK) 00 I'rotialile amount sill' would have made in sealing in the year 1803 5,0UC 00 Kxpeimes inenrred liy I'inekney, voyage to Victoria 50 00 Kxi«-iisesat Sitka, say lo 00 Kxiieiisps at Victoria (JOO (K) 40 50 TUB UENRIP TA. 166 10 20 30 KxIU'Mhcs, cost iif tri|i liai'k ti) Sitka S fK) 00 KxiH'MHCH at Sitka wliilHt waiting fi"' clclivcry (if tlii' ve.sscl ; ai-tiial iMiard ' MH 00 liiwB of tiiiKt rtwaitiiiK (Irliviry of vrswl at iJKN) a nioiitli. Harilwliips suffiirc'il liy iiiastci' 7IH) IM) 5IMI 00 T. J. Ilaliipton, ciKik, (IctainiMl at Sitka for Id iiioiitliH, liirt ordinary wiv({i'Hl»iiig SlIO a iiioiitli (!I0 00 Cost of his provisions (luring, say lli niiintlis, at SIO I'_'0 00 Hardships HMlfcrcd liyliiin 200 0(1 Wni. Klinicicr, detained at Sitka for 10 months, his ordin- ary wages lieing ^',\'} a ni(»nth 50t) tK) Cost of his provisions, 1'J niontlis at •'SIO 120 00 Hardships s\ilfcred hy him 200 00 C. Ooering, detained at Sitka months ; ordinary wages, ifX, 21(1 IM) tiO 00 an 00 200 00 1140 00 Cost of iiis provisions, niontlis at -^In Value of passage to Viutoria. ... Hardships sutfered liy him Thorrisson, mate, 10 months' detention at .Sitka, at §(10. Cost of his provisions, 12 months at $1(1 120 00 Hardships sutfered hy him 20(H«) Henry .Tacolwon, S months' detention at S."iO a month 4(MI 00 Expenses down to Victoria '. 30 00 Hardships suffcre I liy him 200 00 Mobley, hunter, 8 months' d( tention, at SS5 a mimth 280 00 I'as.sage hack .'10 00 Hardshilis siilfeicd liy him 200 00 ■I. C. West, 8 months' detention at .'?i)0 40') 00 Passage back 30 00 Hardsliips suffered liy him 200 00 Hardslii|w of four Indians and other losses, civch, .*!2yO 1,000 (XJ I'erson.al e\|M'nses and troulilo of CharU's Spring coming from Kyiupiot, and looking after the ships' alfairs 500 00 821,404 10 Interest on all the almve items at the rate of 7 per cent fnnn dat of loss until payment. inl ' !1H Oil »flp^ P^"P TIFE "OSCAR AND IIATTIIO." Claim No. 28. K. lllii. It. nil, liiir :tit. r.. •-',■1. Ap. I'.. 2111, liii.' :is. A|.. I!. L'JO. A p. i;. -J 1(1, line 50. .\|). r.. L'l.s, line III. K, MIL', lliii'»i. The " Oscar and Ilattie " was a rej^istorcd Britisli mhooiicr of 81 tons bought by Jolui L. IVnuy, at San Francisco, in December, 1890, for -^10,000. In Dec'ember,1891,8ho was transferred by ronny to the Pacific Sealing Company (Limited), who owned lierat the time of the the seizure liereinafter referred to. In the spring of 181)2, slie was fitted out for a sealing voyage on the southern coast and IQ for Behring Sea. The total sum invested in her by the Com. pany when she was ready for use in that year amounted to $13,.365, not including her provisions and ammunition. When she started on her voyage to Behring Sea about the Ist May, 1892, it was not known that the modus vircndi of 1891 expiring in that month would be renewed, but before entering the sea she was warned by the United States man-of-war " Adams " that the mod.ushaiX been so renewed. In consequence of this warning the schooner did not enter the portion of Behring Sea covered by the modus, but proceeded to hunt seals on the 20 Russian side. She completed her season in the neighbourhood of Cojiper Island, and started from thence on her voyage to Victoria. On her way back being short of water she touched at Attou Island, distant over 600 miles from the Pribiloffs, Whilst there engaged taking in a supply of water, she wag seized by the United States ship " Mohican " for an alleged breach of the Hindus. She was taken to Ounalaska, where she was handed over to the Commander of Her Maje.?ty's ship " Melpomene," for trial under the terms of the mmlits. She was then sent to Victoria, handed over to tlie Collector of 30 Customs and proceeded against for a breach of the modus in the Admiralty Court of Britisli Columbia. The pleadings in the case will be found on page 217 of Appendix B. On the 5th January, 1893, Judgment was given by Sir Matthew Bogbie, condemning the schooner, her equipment and everything on board her, as forfeited to Her Majesty for contravention of the Act known as " Seal Fisheries Act of 1891," which provided for the enforcement of the modus. Upon this judgment an appeal was taken to the Supreme Court of Canada, and on that appeal the judgment of the 40 Amiralty Court was reversed. In the meantime, the schooner, her tackle, apparel, furniture and cargo, were sold at a heavy loss to her owner, who in addition was put to about $2,000 costs in connection with the litigation. The evidence given at the trial before Sir Matthew !>egbie established clearly that the schooner had not taken, or 166 TUB 0»CAR AND nATTIE. leT attempted to take any seals in Uohring Sea in that year ; that nho touched at Attou iHlanil for tlie solo purpose (which was perfectly legal) of taking a supply of fresh water; that there were no seals to he taken at or near Attou Island ; that all these facts were at the time kiiow!i to the captain of the "Mohican," and further that he knew and believed that the schooner had no intention of attenijiting to violate the nioilus, Thomas Turpcl, master of the "Oscar ami Ilattio" states that he continued to seal until the latter end of August. J To in was then short of water and prepared to go home, and to give u}) scaling ; that he had finished scaling then. At the end of his sealing operations he was off Copper Island. This was on the 30th of August. He bore away for Attou Island, which was the westernmost island of the Aleutian group ; he went in to Ciotzleb harhm ; r, it being the only one that he could make, lie says he wont u) Gotzleb simply for water ; there was a strong wind and he could not get round the south side of the island (which would have been outside of Behring Sea). At about 7 or 8 a.m. he went ashore at Attou Island to ^0 see if he could find a suitable place to take water ; at about 1 o'clock ho began to till the tanks ; and at about o in the evening a boat from the "Mohican" came to seize him. "Ensign Harrison was in charge of the boat and he seized me for being at anchor inside JJehring Sea ; that is what ho told me." On the Ist September he (Turpel) went around to see Cap- tain Johnson, of the ".Mohican." lie protested against being seized ; wanted to know what he had done to cause the seizure; stated to the captain that he was slmrtof provisions and water and was on his homeward passage. Captain Johnson said 30 " he was very sorry that he had to seize him for being at anchor in a port he hail not cleared for, and for being in prohibited waters." "Q. Just tell the conversation between you, captain? — A. I protested against it; that is all I could say. I told him that I would not bo in there at all, only just for wanting water; that I had finished my scaling, and liad no provisions to stay any longer, and had just enough to carry me to Victoria. "Q. Was anything 8:iid about seals? — A. lie said that ho did not believe that 1 had been sealing at all ; he did not 40 believe I had been in to seal there, but fully believed that I came in there for the sole and whole purpose of getting water." lie further states that he had never lowered a boat in the Behring Sea ; that the seals that he had on board were taken ott'Copper Island, in the North Pacific Ocean. Outside of going to Attou Island for water ho had not lowered a boat in Behring Sea, nor had he shot or killed seals there. lie then describes being sent to Ounalaska and says : — "I went on board the ' Yorktown ' and saw Captain Evans (the chief officer of the American fleet there.) oO "Q- What occurred with Captain Evans? — A. lie told ine what Captain Johnson had seized me for. "Q. What was that? — A. Being in prohihited waters aTid found in a port I had not cleared for." A|' II. •.':f.', lilM lUI. ,\|. It. •.M;t. lIlM 20. \l.. II. 2II». .\l.. II. '.'L'll. Ill '.I. .\i>. n. •-'L'l. liiii'tld. 2-.'I, .\l<. v.. -Jii. ' 1 i» mm 168 THE OSCAR AND IIATTIE. A|i. II. liiii' IMI. lilH' 'JO. A|.. li. -'If. Ajrain lie states : — Ap. I!. •.".':i. " I went ill to Attou to >jot wiitor, a^* it wan the nonrost I could j:;ot to. I could not yet in to C'opjii'r IhIuikI and 1 could not f. atal Hattii'," statcn that when hcHciztMl her, one of tlic ImatH wan '"" making' oll'troni tlio shore witli two inon in it ; t ho rent of the lioats wtMv limiting at the storn, the jfuiw wore hi tlm ruckn in thiM-altiii ; ho didn't notico any guns in tho boats. '!'hc t'olh)win,if is Croni his oviihsnoo : — 10 " ^i- '** '* ""' "''>'■' 'l"'t thoro aro no seals in the uoighl)onr- \|.. hood of , At ton? .'\. I I'ainiot say that it is a fact. I don't'"" think there aro any. "(2. Yon don't think thcr.' aro any soals in Attmi? Vou didn't tiiink thoy had those boats down at tho stiTii for tho purposo of sealing, did you '.' A. I did not. "(J. When yon soizod that ship were thoy in the act of briiif^iny water from tiie shore? .\. A boat was coining from shore from tho direction of a stream of wator. " (i. Did tile ('aptain of tho ship toll yon that ho was taking 20 on water tiioro? A. Ho did. " (i. Did yon givo him instrnetioiis to go on taking his wafer? A. I don't rcmondicr ; I made no objoetion to it. "Q. i)ihort of provisions? A. It was my understanding that ho had enough of provisions to go to Victoria direct. " (i. It was enough to go to Victoria diroit and nothing more? A. Nothing more. " ti. Would it have boon neees.«ury to take so many boats a;. as that to take water ? A. If ho wore in a hurry to wator, '"" why of course it would bo bettor to take all his boats. It is a hard matter to obtain fresh wator at that place, and of course he could work then all his boats at one time if ho wanted to." ,'iO This evidence was corroborated bv .losenh Hrown. ,^i' Upon this evideuce the Supremo ('ourt of Caniula hold that Ap there was no ground for seizing or prosecuting the vessel. "" There is now atlditional evidence which conclusively shows that the seizing otHcor at the time he seized the vessel did not really believe that any broach of tho nunlns had been com- mitted. (.)n the 3Ist .Xugust, 189"J, (Jai)tain Johnson, wrote to ij. Commander Kvans : — "" " Sut, — Yesterday, 1 seized tho schooner ' Oscar and Ilattio,' of Victoria, IJritisli Columbia, at anchor in liotzlob Harbour, li S—-2-2 11. 2:17, i:!!i, !.M, iti:> ' 11(1. 170 THE OSCAR AND IIATTIK. K. 141li, lini- -.'L'. A p. li. •-':> Ai. I! oiitheHegromulfl : — (1st) violation of tlie United Statca Lievcniio laws, as being illegally in tlie United States piirt8, (2nd) viola- tion of the same law in having traiisfiM-ied seal skins to and receiving supplies from the ' Co(iuitlain,' (•>'''/) ILiniiii/ oti hnard 'J76 skins aixl a fi'mpJcte sioli»(j outfii in violation of the modus vivtni/i.'' Again on the 10th Sefttember, 18!t2, Commander Evans wro'a to the Secretary of the Xavy a letter containing the folh.wing ; — " During the hitter part of August, I had sent the ' Mohican ' |() to the vicinity of Atton island to ajipreluMid and capture any sealers from the Russian side, who niiglit Ije found in that vicinity. I feared that some of the schooners after wati-ring at Atton would in case of good weather, stop, for a few days sealing in Hehring Sea, which I determined should not he done, anil at the fame time I wished British schooners to understand that th y could no longer make a convenience of American ports illegally for carrying on their sealing opera- tions. On my arrival here (Oumdaska) * * ^ * 1 found the 'Oscar and Ilattic ' in port having l)een captured at 20 Gotzleb Harbour, a snudl watering port on the Island of Attou, by the * .Mohican ' on September Ist, and sent here in charge of an ofttce- ''id prize crew. Wlirn '(ipturtil she had on hoard 27ti fin' seal, skins, tcikm on tlw coast of Japo)), and a. fall scaling outfit." These letters which were not before the Canadian courts prove the fact that the schooner was seized not for a breach of the moilus, but for two charges ot contravention of the Revenue laws of the L'nited States, neither of which had any founda- tion whatever in law or fact, and u[p(>ii a charge not of having 30 broken the terms of the ?«ii(/((.s-,butof having a niiiidiert>f sea skins, &c., on board, which is no breach thereof. ]t will be noted that by the terms of tlie )no of section 1 of the Seal Fisheries Bchring Sea Act of l.S'.U, where it ig stated, " if a Mrit'sh ship is found within iieh ring Sea, having on boai'd thereof fishing (u* shooting implements or seal 40 skins 01' bo(li(^s of seals, it sIimII \\o on ilie owner or master of said ship to pro\e that tli(> ship was not used or employed in coiilravention of this Act "" It is ap]iarenl that the rommander oi the " Muhienn '" at the time he iradc the seizure, had before him ample evidence to satisfy his mind, and as a tad he was satisfied that the seal skins on board had not boon taken in IJehring Sea, and that the vessel was not there for the purpose of catching seals. It may further be noticed that the instructions gi\eii by the United Slates Xavy l)e|.artnient went beyond the terms of the ,',() nioilus, in authorizing seizures nut (hereby ciiiiteni[ilated. These instructions are found on page 27"J of Appendix H, and, as can be siM'n,e.xcee(lcd the terms of the nimliif, in taking away from the cominanders nt the revemie cutters, oi' nu'ti-of- war, the discreticpii wITn^h they should have e.xcrcised in the nuitter. TUB OSr\R AND llATTIi;, 171 Tlio instnictioiis continued tlie following clansc : "Any vessel t'onnd to he or to Inive l)eon emiiluyed in seiiling witliin the iirohihitcd waters of l>oliring Sea, wliethor with or without warning" (ao far the instructions are correct), "and any vessel found therein, whether warned or not, having on board inijile- nients for taking seal, or seal skins or bodies of seals will be seized." And further, that ,he commanding oilicer after making the seizure siiall hand the vessel over to the British authorities. 10 The instructions therefore amounted to a 'command' that a seizure should be nuiile whenever seal skins or sealing imjile- ments were found on board of a siii]i, regardless of the eomnianding otHcer bt'ing satisfied tlial the ship was not employed in contravenlinn nf the nioilan i>r of tiie Act relating thereto. It follows that tlie sMziirc of the "Oscar and Ilaltie" was made witliout rea:;ii.i''.)le or probable cause, and in violation of and against the terms of the modus virciuli of 1892, and that tliis is a case where full compensation should bi' given. 20 The judgment rendered by Sir Matthew Begbie can in no wa}' be urged as evidence of there being a primn facii) case iu favour of the seizure, firstly because as sliown above, the United States had tailed to place before him all the material facts; secondly because the seizure was not made for reasons coming witliin the provisions of the modus ; and thirdly, becau.sc the arrest and seizure being wrongful at its inception no judgment can make it good. The vessel as before stated was sold under legal process with her gear and sealing outiit, all of which realized §4,550 only ; 30 the seal skins, however, realized the full value. The moneys were paid into court and afterwards refunded to the owner of the shiii. The claim is limited to the loss occasioned iiy tlie forced sale of 'he ve.isel and her eiiuipment and costs of litiga- tion. iVrsonal am', (jther expenses were incurred in tlu^ preparation and invseiitation of the claim [irior to the appointment of Ibis Commission. Tier Britannic .Majesty, tli.Tci'ore, claims the following dam ages as resulting from the premises : — \|.. I'.. -Ji-.L'. liiii' .Ml. R. u:l'. line 111. fn 50 I.its^ t.II \t>^fl illxl nllltil, . I 'ii~l clf lili^'Mti.PM IIVIT ami ^illlVr I 111' tllNrll I'lists r.llvraV cluilVK 'riliif iilicl r\|M iis.s iif iiuiilM^;ihi; ouiiiT .S S.SI.'i (IK 'J, ("III III! I'M I Mil ; III! lull H'sl "11 all llii' Ml>nv ili-111,1 al tlif lalc iif 7 |"T (■•nt fiiuii tlir ■ lali Clf lii<« until pavim Ml. iML 1892. TlIK '• WlNNIFRKl).' Claim No. 24. H. l.MI. K. l.-.U. U. l.".l.N-'.i. I!. I.Ml'. The •' WiiuiitVed " was u regislcrod ISritisli srluMmer of 18 tons, measuring 42. t'ei't in Iciigtli by \-\-l feel in breadth and ih feet in deptli. On 20th duly, IS'.li;. wirde in latitude r)r>-22 north, longitude It! ,•35 west, and about 15 miles from Anak Island, the nearest land, the sehooner, her tackle, apparel, furniture and eargo were seized by the Tnited States rcvemieeuttcr " l\ush ", 10 for violation of the nmdits rlnmH of tiiat year. Ilor pafiers were taken possession of aiul removed by the seizing olheer ; a prize crew was placed alioard her, and under command of an officer of the " Rusli " and in tow of that cutter she was taken to Ounalaska. where she arriveil on 21st .Inly. From the time of the seizure uuHl after reaching Ouna- laska, the crew of the " Winnifred '' w as transferred to and kept on the " Rush " and prevented from communicating with (lustave Hansen, the master of the schooner, .. i ■ was left on board his own vessel. oo On 27th July, while at Ounalaska the nnister, ami members of the crow oi" the •' NVinniiVed " were illegally put under oath by the commander ot the ••Rush'", and examined "in regard to the movements of the scliuoiier while within tlie waters of Alaska Territory,'' and tlie " Winnifred " was tlu-n declared seized for violation of the Revenue laws. On 2otli duly, the commander of the " Rush "' reported to his superior oflicer as follows : — •' Sir, — It gives me pleasure to report to you tluit [ returned to tlii.s port on the 21.-t instant, having in tow the British ;?0 schooner ' Wiiniifred,' of \'icloria, B.C , (i. .Nf. O. Hansen, master, which vessel I found on the evening ol the 20th duly, 18112, in tiie act ot taking fur seals in the prohibited waters of Rehring Sea, in violation of the agreement entered into by the I'nited Statt's and Oreat Britain, and in dtdiance of the proclamation of the IVesident regarding the taking of these animals. The ' Winnifred ' was found near Anak Island, latitude or)'22-45 X , longitmle lti:|-;5.") W.. with lioats down hunting and at the hour of seizing her tour (4) dead seals unskinned. W(>re on deck. The nuister admitted that eleven 40 (11) seals had been taken that day and with those in the bold in .sdt he had on hoard a total of forty-.six (4H) skins. " 'I'he M'ssel's outlit consists of four boats complete, nine guns with a full supply of ammunition, stores sufficient to last the season, salt, etc. Her crow consists of seven persons including master. •' 1 took her in tow, [tut an ollicer and lour men on board, took her in tow and brought her at once to this port, whi're We have hi'f ii\ charge." 172 THE WINNIPllED. 178 "I have iiiiulo a (lecliiration as to timo and eircmiistaiifos of the fiiiiliiifi' of tlic schooner, witli a coiniilete list of all articles, slores, skins, etc., found on hoard, and am ready to deliver Iut into tlie cnstody ot the senior olticer coinniandini^ II(>r Maji'sty's Naval Force in these waters should you so direct." On July '27th he I'urther rei)orted to the same othcer : — " Srii : — I resin'ct fully rejiort tny return to this harhnur on I! tlie 21st instant with iny coirimand, ha\ini>' in tow the British wliooner ' Wimiifred,' (i. ^^. (). Ilansi'n, master, of Victoria, '0 B.C. f found this vessel in the act of taking fur seals in the prohihited waters of Jiehrinj; Sea on the 20th of July, 18U2,for which otl'ence officers and crew, also vessi'l, cargo, 8tt)re8, etc., are liable to at rest and sei/.un^ under the nnnhifi virouli hotween the I'nited States of America and (ireat Hritair. " " I have, however, since rny re ur.i to this port received an otht'iaUn)mmunication from Captaie C. f*. lloopcr, commanding the United States revemie cutter '(/oiwin" dated Sitka, June 30tli, 18112. infoi'iniiig me that the ih'itish schooner ' Winnifred,' her tackle, stores, outfits, etc.. are liahle to sei;cure and co?itis- 20 cation for offences conimitt(Ml against the Revenue laws of the Uuited States, piiov to entering the waters of 13ehring Sea. 1 have examineil into the case, and find tluir. the master and crew are guilty of violating the Revenue liws, in this, tluit the said Br'tish schooner ' Winnifreil,' of Victoria, 1>.('., (i. M. O. Hansen, master, did enter Toidvi Hay, Afoganak Island, Alaska, on the 18th day of -lune, 1S92, without making report and entry at United States custom-house at St. Paul, Kodiac Island, Alaska, the jiort of entry for the district, in violation of sections 277.'i, 2771 and ;?10P Revised Statutes of the 30 United States. Also that the saiil schooner, her master and crew, received at said Tonki Hay, on the 20th day of June, 1892, coal, corned heef, and [xitatoes from the British schooner 'Lihhie' and ' \'enture ' — violating section 2808. Also that the said sehooni'r, master ami crew, did on the 22nd instant discharge from the ' W^imiifred " ami put on hoard th(> British schooner' Favourite' at ihe same place — Tonki Bay, 115 fur seal skins to he taken to N'ictoria, B.C.. in violation of sections 2St;7 and 2-^ti8 Revised Statutes, United St.ites. And for all of which offences the vessel, her tackle, appai^el, etc., were liahle "to to seizure, and the master, ofticers and rew, to arrest and punishment at any time it' found within the jurisdiction of the United States: see Woolsey's International Law, page 374, Sec. 212 also the Act of Congress 170',!; Manh 20tli. "I claim that by the provisions of Sec. 2773, Revised Statutes, I am. as coiniuanderof a rc^venue cutter of tlu' Unite I States empowered to arrest the liritisli sdiooiu'r ' Winnifred,' her master and crew, and turn them over to the District Attorney for the Territory of .Vlaska. at Sitka, for trial in the United States District Court at Sitka, Alaska, and I have l.".i:v 50 acordingly made formal -ei/.ure ol the ■ Winniired' under tlie above laws. " Should the said ' Winnifred,' her master, owners and others, not he liahle under the ahove (pioted lawsi^if the L'nited Slates, she can he turned over to I[er Majesty, the Queen of Knglaiid, or her representatives at Victoria, B.C., to be pro- ceeded against under the //(n(/'/,s' rin')hli for the otfence of tak- ing fur seals in the prohihited waters of Behring Sea. 174' TIIK WINNri'RED. On itaji;c' lolS of the Record, the followiiiijj letter is also to be toil 11(1 : — " IJ. S. Revenue Oiitter 'Riisli,' "Ouiuiiaska, Alaska, July 2S. 1892. "Hon. Seoretary of tlie Treasury, " Wasiang'ton, 1 ).(.!. i; i.M... "Sir. — Referring to my letter of .Fiily 24th, 18fl2. in which I inforiicd the department of the seizure ot the IJritish schooner Winnifri'd,' G. M. O. Ilaiiseii, master, of N'ictoria. P).C. and of my intention to turn the vessel over to the senior British naval olticer at this place for violation of tlie terms iQ of the existing mn/lns vivouU. between the governments of tlie I'^nited States and Great Britain, T liave the honour to report that subsequent to the mailing of that letter the United States steamer 'Yorktown' arrived in port, and at a conference witli (-oinmander Evans, United States Navy, I called his attention to an othcial communication I liail received from (';iptain 0. L. Hooper, commanditig revenue cutter ' Corwin,' in wliich [ was informed that the schooner ' Winnifred ' was liable to seizure, and her master. G. M. 0. Hansen, and <'rew to arrest for violation of the United f-^lates llexenue laws previous to 20 entering I)e!;ring Sea. Furthermore, that upon investigating the case I laid secured ample testimony from members of the vessel's crew and from the schooner's ofKeial log book, to con- vict her of violation of sections 2778, 2774, 2867, 2868, and 3100, United States Revised Statutes. " On 27th .fuly, Commander Kvaiis, U.S.N., and Captain A. H, Chase I'arr, R.N., commanding Her Majesty's naval force in HehringSea, met b^' appointment on lioard the "Rush," and after a full discussion of the matter it was agreed on the part of Captain Parr, that his government wonhl waive the right 30 of I'ustody of the seized vessel until she had been tried by the United States courts for violation ot the United States Revenue laws, provided that in case of failure to convict her on those charges, the vessel, lier cargo, outtit, kc, and master and crew were to be turned over to Her Majesty's, the (Jueen o\' Eng- land, representatives at Victoria, B.C., for trial on the charge of \iolation of ihe terms of the existing yihulu.i rivniilL '• Acting under i'^structions receixed from Commander Evans, U.S.X., I have therefo;e made formal seizureof the ' Winnifred ' and arrested her master, (t. M. ( >. Hansen, anil crew I'or viola- 40 t'.on of the Inited States Revenue laws as above cited, and as soon as tiie ne essary papers can b(> procured she will be delivered into the custody of Lieut. Commander Tanner, r.S.N., commanding United States steamer 'Albatross,' for delivery into the hands of the U)iited States District Attorney at Sitka. " V^ery resjjcet fully, "WASHINQTON C. COULSON, ''Oiphnn U.S.n.N." 1; ^i,;( At Ounalaska, Hansen imd his crew, o.xi'ept tlie cook, were put aboard the *' Albatross," a Tnited States tisli commission rn steanur, aneds ol sale tiansmittcd to the ;,^) United States Treasury. A|., II It. 1 11:7, line III, 1^ *l M' 'i'iie Commissioners ha\e ,11 the outset 10 a>ceilain as to whether the seizure ot' the • Winnifred " was a valid seizure. 176 THE WINNIFRED. as, it' it was illi'jjfai, tlie ITnitod States aiv iiii(loul>ti<(]Iy in the wrong. Tliat tlio seizure was illegal is apiiareiit tVotii the fiiet that it was made on tlie liigli sea outsidi^ of the territorial limit, and, therefore, the court at iSitka had no riglit or jurisdiction to condemn the vessel tor tlie allegcil violation of the Revenue laws. Moreover, even if the court at Sitka had jurisdiction, the Commissioners are empoweicd under the Claims ('on\ention to revise the linding of tiie court, and, fi'om the evidence pro- IQ dticed at Sitka, there was clearly no infraction of the Iteveuue laws. The sections of the IJcviscd Statutes 'inder which the lihel was based arc the following : — " Sec, '281)7. If after the arrival of any vessel laden witli luercliandKe and hound tn the rniled States, within the lim- its of any collection er otli- cer ot the customs tn uidadi' the same, the masrer of such vessel a.id the mate, nr ntlier person next in I'ommand, shall respectively he liahle tc a ]ienalty >>[' one thousand dollars for each such otience, and the merchandise so unladen sh.iU he forfeited, except in ease of some utiavoidahle accident, neces- sity, or distress of weather. In I'ase of such unavoidable acci- dent, necessity, or distress, ihe master of such vessi'l shall give iiiiotice to, and, tugether with two ov more of the otlicers or mariners on board such vessels, of wIkuu tlu' mate or other :jo person next in commaiitl shall b(> one, shall make proof upon oath hefore the colh'ctdr. or other chief otlioer of the customs of the district, within ilie limits of which such accident, neces- sity, or distress happened, or belore the collector, nr other chief otficer of the collection-district, within the limits of which such vessel shall tirst afferwaid ariiv(\ if tlu' accident, necessity, or distress luqipeneij ii-',3, " "Winnifred " being short of water went into Tonki Bay for the solo purpose of taking in a new supply of water. Whilst there slie met with the " Favourite," the " Libbie " and the " Venture," all British schooners on scaling voyages to Behring 10 Sea and not bound to any United States ports. The " Favourite " and the " AVinnifred " belonging to the same owners, one hundred skins were transferred from the latter to the former and a few i)rovision8, tt) wit : — a small quantity of potatoes, a small quantity of coal, a few onions, and a small quantity of Ap. H. ar.i;?- corn beef were made a present of to the orow of the " Winni- fred "and for their own use, partly by the "Venture" and partly by the '• Libbie." Tliere was also a tew sacks of salt transferred from the " Venture " to the "Winnifred" for the purpose of salting the skins of the latter vessel. ■20 This small quantity of provision was thus transferred without any compensation, for the convenience and welfare of the crew of the " Winnifred," and clearly without any intension of violating the Revenue laws of the United States. There was, therefire, error on the part of the Judge at Sitka in finding that the above mentioned vessels were bound for the United States, or that there was any violation of the revenue laws. Moreover, the " Winnifred " could onlj' be seized on the liigli sea for violation of the modus of 1892 ; she was in fact 30 seized for violation of said modus. Under said modus it was incumbent on the United States to forthwith deliver the vessel to tlie British authorities, and Commander Parr had no authority whatever to give the a1' jged consent and thereby waive any delivery of the vessel to the British authorities. Any consent such as alleged on the part of Captain Parr was clearly in contravention of the soction 3 of the modus, which is in the terms following ; — " Every vessel or person oft'endiiig against this prohibition Ap. b. lmio. 40 in the said waters of Behring Sea outside of the ordinary terri- torial limits of the United States, may be seized and detained by the naval or other duly commissioned ofKccra of either of the high contracting parties, but tliey shall he handed over as soon as practicable to the authorities of the nation to which they respectively belong, who alone shall have jurisdiction to try the oflenc? and impose the penalties for the same. The wit- nesses and iiroof necessary to establish the offence shall also be sent with tl ^m." Captain Coi'son, tie seizing officer, was also clearly violating ;>0 his instructiom in acting upon this alleged conjent of Captain Parr, as will be found on reference to the instructions given u 8—23 .•L^ 178 THE WINNIFRED. A].. II. 2ti'2. to the Commander of the United States Naval force in Behring Sea: — "The conimandinij officer of the vessel making the seizure, will, at the time thereof, draw up a declaration in writing, stat- ing the condition of the seized vessel, place and date of seizure, giving latitude and longitude and circumstances showing guilt. The seized vessel will he hrouglit or sent in charge of a suffici- ent force to insure delivery, together with witnesses and proofs and the declaration of the officer making the seizure, if Ameri- can, to Sitka and there delivered to the officer ot the United 10 States District Court at that place, and if Hritich, to Ounalaska and there delivered to the senior British naval officer in Beh- ring Sea. The master of the seized vessel, her mate or boat- swain and such portion of her crow as can conveniently be car- ried therein will be sent as prisoners with the vessel to suffer the penalty of the law." If the " Winnifred" had been delivered to the British auth- orities and condemned for violation of the mo(/«s (u"ww. 1751, line -,7. Viiliic (if vcssfl 8 2,0()() 00 4 l«ials 240 00 1 fiiK gun ()5 00 20 475 lbs. Nhnt 33 25 1 biironictcr 17 50 1 cludnoniotiT 125 00 Hlop chest 46 00 ()5 ll)s. iKjwdcr 12 00 1 lot i'in|ity sliells in liuxcis and «iicks 18 00 1 J tons salt 23 00 4t) fur seal skins 640 00 1 lirl. salmon 6 00 1 box biscuits 1 00 30 2 mats ricp 1 50 1 box raisins 1 00 3 boxes linio juice 1 60 3 sai-ks beans 3 60 1 box candles 2 00 1 can coal oil. 1 50 2 kits pickles 1 00 G sacks flour. . . 3 00 3 tins coffee, 15 lbs 3 75 3 b()at compasses 00 40 2 cases corn beef 4 00 ill tin matclies 50 lkegsuKar(l,-ulbs.) 6 20 1 keg syrup (4 galls.) 125 20 Nf. gun wads 10 n(l 230 cartri.lges (15-60) 6 00 K M. primers 8 00 1 re-loa,'iil iirri'Mt, ili'ti'iitidii mill otliiT liivrdsliliN nf tlii' iiwisti- anil rrt-w M :«H) (Ki llW 5(1 IKt (K) L'lK) IHI 2,."ii«l (1(1 «i (i,ii.'):i ((;■> liitiTi'^l (111 all tliii aliiin' id'iiis at tlic rati- nf 7 i"'i' ci'iit pi-r lumuiii fruiii (hitr of Iimk until payiiu'iit. THE "WANDEllKR." CnAiM No. 25. The " Wiuideror " was a British schooner of 25 tons, registered it. i.mt, at the port of Victoria. ''"'"' On or about the 21st day of ^farch, 18H0, the President of the United States issued a prdclaniatinn warning all jiersoim against entering the waters of Moiiring Sea for the [lurpose of killing fur-seal and making known that he was to cause one or 10 more vessels of the United States to diligently cruise the waters of Behring Sea and arrest all persons and seize all vessels found to be or to have been engaged in sealing in Behring Sea, and that all persons found to be or to have been engaged in killing fur-seals therein, would be arrested and punisheil by inii>rison- ment or tine or both, and that vessels so employed, tlieir tackle, apparel, furniture and cargoes would be seized and forfeited. The provisions of this proclamation were carried into effect among other things, by causing cutters of tlie Uniteil States Revenue Service to cruise the waters of Behring Sea, during 20 the sealing season of 1889, which cutters in pursuance of said orders, actually did seize a number of sealing vessels in Behring Sea, and arrested the masters and crews thereof. Also in the years 1886 and 1887, the same policy liad been followed by the United States Government, and in consequence thereof a large number of vessels engaged in sealing in Behring Sea had been arrested and condemned, their masters and mates impris- oned, and their crews exposed to great hardship and peril. In the spring of 1880, the owner lifted her out for a sealing i^ ,..,j; voyage on the coast in Behring Sea. lie did not take a stock ''"' ""■ 3Q of provisions which would be sufliiient for both the coast and Behring Sea voyages, but carried .?400 or 8500 in cash to reprovision her if it should become necessary. The places u. i.-,;;;, where these supplies could be obtained were : Unger Island, '""' ''"■ Yakutat, Sitka, or Onnalaska. She had a crew of 13 Indians H. i"i:t(i, and 2 white men with 6 hunting canoes, and one canoe used by the mate as a stern boat. She left Victoria in February and sealed on the west coast n. im?. until the beginning of May. She then started for Behring Sea, with the intention of remaining until about the :i5th K I'l^w, ,^ August. The vessel engaged in sealing on the journey to the sea, when oft' Cape Scott, the most northerly [loint of Van- couver Island, some of the Indians who had been out hunting, heard from another vessel that the United States were threat- ening to make seizures, and they refused to go any further, after having ascertained from the captain that in case of seiz- ure and tbrfeiture of the vessel, he woukl not be able to pay them for their loss. 181 I '» IMAGE EVALUATION TEST TARGET (MT-3) ^/ ^^% '/•. 1.0 1.1 11.25 UilM 125 ■HWu Hiotogiapiiic Sdeiices Corporation 23 WIST MAIN STRUT WnSTIR.N.Y. MSSO (716)I72-4S03 nil' !' "" "" i 182 THE WANDERBR. lini' :«). K. 1 •■>:«, liiii' 40. K. I .".4 1, liiif .111. H. 1544, lint! 4ii. K. I.i;i7, liiK' 40. It appears that Rorae of these same Indians liad heeii in Beliriiig Sea in previous years on board the " Anna Beck " and " Grace," when these vessels wore seizfld, and in consequence of the seizures they suft'ered great hardshi{). Captain Paxton says : — " They said tlioy were used very bad at Sitka ; had to paddle in their canoes almost all the way to Victoria, the most of them. Some of them got drowned on their way to Victoria. They did not want to lose their time." August Bjerre, who was mate on board the ship, states: IQ " The Indians were scared to go ; they were scared of seiz- ure. Some of them, I believe, liad been seized before, and they had been talking with other Indians while they were away from the vessel out hunting, and they were scared of the vessel being seized, and, as they knew that Captain Paxton had nothing but the vessel, they were afraid that they ' ould get no pay if they were seized. " Q. Had you any conversation with any of the Indians on that occasion ? A. Well, the Indians would tell nie their trouble, as well as tell it to Captain Paxton, and I listened to 20 what took place between Captain Paxton and the Indians. " Q. Was that the reason that they assigned for refusing to go to Behring Sea? A. Yes, sir, that is the reason. "Q. Will you say the purport of what you understood from the Indians on that occasion, when they refused to go to Behring Sea ? A. There was a whole lot of talk on several occasions ; it did not all happen at once. " Q. Now, otf Cape Scott, on the occasion in question, what was the conversation ? A. Well, they were scared, as some of them had been seized before. They were scared to go into 30 Behring Sea with Captain Paxton : they knew that ho had nothing but his vessel, and they were scared that if the vessel was seized and he lost her, they would get no pay for the sea- son's work." In cross-examination the following evidence was given : — " Q. The chief reason why they did not go was because they were afraid that they would not get their pay ? A. They were scared of seizures. " Q. Answer the question. The chief reason was because they were afraid they would not get they pay, or was it be- cause they were physically afraid of seizures? A. They were .„ scared of seizure, and in case that the boat was 8eize|ieai was prosecuted for some time until it became api>arent that the length of time necessary to bring the ap[ieal on tor iiearing before the Sup- reme Court of the United States would occasion much greater JQ delay than the circumsfanccs of the case would permit. It was manifestly desirable that the oj)inion of that court should be obtained upon the main ipn-stion involved, namely, whether the seizure was legal or not at tiie earliest moment possible. ]{otb the Oovcnmient of the United States and the Government of Great Britain agreed as to the advi-iability of obtaining such an opinion. The United States Secretary of State in a 7h>tf vrrhiile to Sir Sackville West, date>l "ilst April, 1888, oq says : " It is suggested on l»ehalf of the United States that as the case ot the seizure of British ves-els in liehring Sea there- in referred to are now in court pending an appeal from the judicial decision, It is preferable to await the judgment of the Appellate Court in the premises." In order to bring the matter before the Courts of the United Statesaud ()l)tain a speedy decision t'rom them ujion the points arising out of the seizures of British vessels in Behring Sea, qq Tier Majesty's Government following the suggestion containeil in the note ri'rlxtlr above referred to, caused an application to be made to the said court for a writ of prohibition to prevent the District Court ot Alaska from proceeding tt) enforce the judgment of coiidcnniation against the "W. 1*. Sayward." This application was made on the 12th .January, 18fU. Leave to file the petition was obtained, briefs were tiled, and the case argued orally before the Supreme Court. Judgment was given on the 20th February, 1892, refusing to grant the writ of prohiliition. The ground of tlie decision was that i)rohibition wou!d not lie after judgment, where the facts showing want of jurisdiction did not appear on the face of the record itself, and that the evidence given in the case could not be looked at to establish want of jurisdiction. But the court, whilst resting its decision o!> the grounds stated, intimated that it might have plac.d it upon the principle that an application to a court to review the action of the political "^^ department of the Government, upon a question pending be- tween it and a foreign power, aiul to determine whether the Government was right or wrong, made while diplomatic nego- tiations were still going on, shouhl be deiiieii. The eflect of this decision was to make it ajipannt that fur- ther recourse to the Courts of the United States would be futile. 184 40 THE W. I*. SAYWAKO, 185 The Governniont ot" Grcut Britain, tliercfore, Imd cxliaiiHtod every legal remedy which was open to thoin. At tlio hearing at Victoria a motion was made to diHmisn this claim, upon the ground that no claim lor costs incurred l»y Her Majesty's Government, or by the (Jovcrnmont of Canada, should be considered before this Tribunal, and further, assum- ing that such a case could be entertained, this claim was not within the meaning of the wonls used in the framing of the convefition. 10 The moticn was nllowcil to stand over for discussion at the main argument. It is submitted that there is no foundation for this motion. The claim was set out in the schedule to the convention. The words there used are: "Costs in the * Say ward' case." The simple (pjestit.'u is : " What do those words mean V " It need hardly be contended that (iroat Hritain and the United States were at liberty to include in this arbitration any claim that they saw fit to agree upon. It is also clear from the language of the convention that using that freedom to 20 contract, they liave agreed to refer to this commission a claim for some costs in the " Say ward " case. What costs are meant? In the British counter case before the Paris tribunal, United States version, page 2t)9, the following chapter a|)pearB under tiie head of " Damages" : — "With reference to tlic claim for damages mentioned at page 12 of the liritish case and the particulars set out in the schedule thereto. Groat ISritain will claim in addition to the amount there stated, the sum of l5(!2,847.12 the amount of expenses incurred by the Government of C'anadain connection • with the proceedings before '!ie Supreme Court of the United States with a view of establishing the illegality of the seizure of the * W. P. Sayward.' " The facts are, therefore, that this particular claim was formu- lated and placed before the Paris tribunal. It was not then objected to as a fair matter for consideration, and wlien the diplo- matists of the two Governments engaged upon the settlement of the terms of the present convention there could have been no other " Sayward" costs before their minds, as no other claim for costs had ever i)een made. It is submitted, therefore, that 40 the CommissioTiers cannot hold that this claim is not within the terms of the convention without disregarding its express language. The only question that really should be considered is : " Should the tribunal conclude that these costs are properly recoverable ? " It is submitted that upon this point no doubt can be entertained. The very taut that they are sulimitte. o :«. " Nc. 4. " N... *1, Nil. «. Nil. 7. Nil. M. No. !l. No. 10. Nil. 11. No. 12. No. i;i. No. II. No. 15. No. l«. X». 17. No. IH. No. l!t. No. 1!«». No. 25. No. 'Jl. No, i.".'. No. •_>:(. No. L'1. No. -ii. INM«. Till' "t'iinilciiu" KW.tlH'.l.l'S " "TlHiniton" 42,ltW.7,702.23 187 rp^p \m m IlECAPITULATION. liitiT) nt on alaiM' al llii' latr of 7 Iht I'l'lit from ilatis ihi'iitiiiliixl in tlir luirtii'iilam until |iayiiii'iit. ;l8i.: 10. ^1"™' CONCLUSION. It lias hc'cii coiiBiilored tliat the rulon proscribod by this Hi.uli ('oininissioii would bo aiibstiintiiilly coiuplicd with, if'tlio toii'i^roiii^ aij^unu'iit were ooiitiiu'il to a d'HciiBsioh of tbo inuiii filets elii ited liy the i-vidoiioo. Mimy matters of iete print could not he made available for use in the preparation of the ariiument tor (Jreat Britain, without postponiiin' its delivery beyond the period prescribed by the rules of the Commission. It is (juite possible, therefore, that several items of claim may have been overlooked, and that some features of the case may not have been especially dwelt upon. Any omission of that character, it is assumed, will not embarrass the counsel 20 for the Uniteil States, or this tribunal, and the counsel for (ireat Britain desire to ••escrve the right to refer, on a suitable occasion h»'r"aftcr, to any facts not particularized in this argu- ment, which may be dienied by them to be material. KREDERICIC PETERS, \'\ L. JjfilQUE, ERNEST V. BO DWELL, CllAliLES IIIBBERT TUITER. 188 ANNEX 1. THE MODUS VIVKNIiI OF 1801. " Ajfroi'inciit hetwecii th(! (Jovcrnniciit of Her liritanni)' Mnjt'Kty Mini tlip (5()vornmoiit of'tho I'liitod Ktiiteaf'or n nnu/iis vivtiiili ill reliitioii to tin- fur-wnl fislu-rieH in licliring Sou. " For tho purpose of avoiding irritating (lifioronocs, ami witli 11 view to promote tho friomllv sottleinont of (piontioim ponding lietwcen tlio two govorninontB toucliing tliuir roBpe*:- tivc rights in I'eliring Sea, and for tlie prosorviition of the 10 wal Bpofiert, the following agreement is nnide v.ithont pre- judice to the rights or ciuinis of either pftity : — •'(1) Her Majesty's (Jovernment will prohihit, until May next, foal killing in that part of Hi'hring Sea lying eastward of the line of demarcation deseribod in article No. 1 of tho treaty of 1867, between th'j United States and Uussiu, and will promptly use its host efforts to ensure the observance of this prohibition by liritish subjects and vessels. "(2) The United States (lovernnient will prohibit seal kill- ing for the same period in the same part of liehring Sea, and 20 on the shoros and islands thereof, the property of the United States (in excess of 7,500 to be taken on the islands fur the subsistence and care of the natives), and will promptly use its best efforts to ensure the observance of this prohibition by United States citizens and vessels. "(8) Every vessel or person offending against this prohibi- tion in tho said waters of iiehring Sea, outside of the ordinary territorial limits of the United States, nuiy bo seizeil and detained by the naval or other duly commissioned officers of either of the high contrneting parties, but they sliall be handed 30 over, as soon as practicable, to the authorities of the nation to which they respectively belong, who shall alone have jurisdic- tion to try the offence and impose the penalties for tfie same The witnesses and proofs necessary to establish the offence shall also be se!it with them. "(4) In order to facilitate such pr()i)er inquiries as Her Majesty's Government may desire to make, with a view to the presentation of the case of tliat Ooverninent before arbi- trators, and in expectation that an agreement for arbitration may be arrived at, it is agreed that suitable persons, designateil 40 by Great IJritain, will be permitted, at nuy time, upon applica- tion, to visit or remain upon the seal islands during the present sealing season for that pur[io8e. "Signed and sealed in duplicate at Washington, this fifteenth day of June, 1891, on behalf of their respective Governments, by Sir Julian I'auncefote, CJ.C.M.G., lv.(!.B., II.B.M., Envoy Extraordinary and Minister I'lenipotentiary, and William E. Wharton, Acting Secretary of State of the United States. 50 " J ULI AN PAUNCEFOTE. (Seal.) " "WILLIAM F. WHARTON. [Seal.]" t\ m 189 ANNKX 2. TREATY IIKTWKBN OKKAT IIHITAIN AND TlIK I'NITKn STATES OV AMBIllOA — AKIIITRATION RESPECTINil TUB SEAI, PISIIBHIBS IN BEURINO SEA, SIONBD AT WASUINdTON, PEitHUARY 29, 1892. [Rntifii'iiliinis excli(ini/eil nt Lomlon, May 7, 1892.] Ilcr MiijcHty, tlic Qiiooii of tlio United Kiii^tloiii of Grout nritniii ami Ireland, and tlie United States of Anierien, being desirous to provide for an amicable sottlemei't of tlio qnes tions wbieb iuive arisen l)et\veen tlieir respeetivc governments jo eoneennng the jurisdictional risrbts of tlie United States in tlie water of Melirinsj; Sea, and eonecrning also tbe preserva- tion of tbo fur seal in, or Inibituuliy resorting to the paie made or the va- cancy shall bo tilled in such manner as the higli contracting parties shall agree. Arlirlr TI. The arbitiiitors shall meet at Taris within twenty days after the delivery of the counter-cases mentioned in Article l\'., and shall proceed impartially and carefully to examine and decide the questions that liave been or shall be laid before them as herein provided on the part of the (Jovernments of Her Uri- 20 tannic Majesty and the United States respc(;tively. All (pies- tiona considered by the tribunal, including the iinal decision, shall be determined by a majority of all tne arbitrators. Each of the high contracting parties shall also name one person to attend the tribunal as its agent to represent it gen- erally in all matters connected with the arbitration. ■ "•J '. Article III. The printed case of each of the two parties, accompanied by the documents, the otHcial correspondence, and other evidence on which each relics, shall be delivered in duplicate to each of 30 the arbitrators and to the agent of the other party as soon as may be after the appointment of the memberi of the Tribunal, but within a period not exceeding four months from the date of the exchange of the ratitications of this treaty. Article IV. Within three months after the delivery on both sides of the printed case, cither party may. in like manner, deliver in duplicate to each of the said arbitrators, and to tlie agent of the other party, a counter-case, and additional documents, cor- respondence, and evidence, in reply to the case, documents, 40 correspondence, and evidence so presented by the other party. If, however, in consequence of the distance of the place from which the evidence to be presented is to be procured, either party shall, within thirty days after the receipt by its agent of the case of the other party, give notice to the other party that it recpiirea additional time for the delivery of such counter- case, documents, correspondence, ami evidence, such additional time so indicated, but not exceeding sixty days beyond the three months in this article provided, shall be allowed. If in the case submitted to the arbitrators either party shall 50 have speciticd or alluded to any report or document in its own exclusive possession, without annexing a copy, such party shall be bound, if the other party thinks proper to apply for it, to furnish that party with a copy thereof ; and either party may call upon the other, through the arbitrators, to produce the originals or certified copies of any papers adduced as evidence, giving in each instance notice thereof within thirty days after WTT^rr^m^'^ 199 ANNRX ilt'livorv of tlio cftBo ; iiiid tho (trijfiiml or oopy ho rci|ii08to< hIiuII Ik> (lelivi-rt'tl um hooii u» iiiiiy lie, ami witiiiii u |ioi'ioint8 and referring to tho cvi- donee upon wliieh JiIh government relies, and either party may 10 almi support tho name hoforo tlu- urhitratorn l>y oral argument of counHol ; and the arliitrators may, if tlioy desire furtlier ehicidation with regard to any point, ro(|Uiro a written or printed Btulement or argiiinenl. or oral iirgiiment hy eounsel, upon it; hut in hucIi caxo the oilier party Hhall ho entitled to reply either orally or in writing, ait the caHO may he. Article VI. In deciding the matters suhmifted to the arhitrators, it is agreed that the following five points shall he suhmitted to them, in order that their award shall cmhraec a distinct decision upon .>q each of said live points, to wit : — 1. What exclusive jurisdiction in the sea now known as the Behring Sea, and what exclusivo rights in the seal fisheries therein, did Russia assert and exercise prior and up to the time of the cession of Alaska to tlic United States? 2. How far nero these claims of jurisdiction ns to the seal fisheries recognized and conceded hy Great Britain ? 3. Was the hody of water now known as the Behring Sea includ 1 in the phrase " Pacific Ocean," as used in the treaty of 18-! hetwcen Groat Britain and Russia; and what rights, 30 if any, in tho Ik'hringSea, wore held and exclusively exercised by Russia after said treaty? •I. Did not all the rights of Russia as to jurisdiction and as to tho seal fisheries in Behring Hca oast of the water boundary, in the treaty between the United States and Russia of tho 30th March, 1807, pass unimpaired to the United States under that treaty ? 5. Has the United States any right, and, if so, what right, of protection or projierty in the fur-seals frequenting the islands of the United States in Behring Sea when such seals arclound 40 outside the ordinary 8-mile limit? Article VII. If the dotermiutition of tho foregoing (piestions as to tlio exclusive jurisdiction of tho United States shall leave the sub- ject in such position that the concurrence of (ireat Hritain is necessary to the establishment of regulations for the proper protection and preservation of the tur-seal in, or habitually resorting to, the Behring Sea, the arbitrators shall then deter- mine what concurrent regulations outside tho jurisdictional limits of tho respective governments are necessary, and over 50 what waters such regulations should extend, and to aid them in that determination, the report of a joint commission, to bo appointed by tho respective governKients, shall be laid before them, with such other evidence as either government may submit. ^m ANNKX 198 111 i 'If Till' lii>(li cDiitriictiiij; |>iirlit'M t'lirflu'rrnnn'ujjrt'o torn-oiK-rnto ill «('i-iiriiiir 'lie aillKHimi nl' cither powors to mii-li ruiriilutioiis. Arlirle VIII. Till' liij^li iiiiitnic'tiii^ [mrtiiH haviiii; romiil thutniW'IvuH iiii- ultli' to iiijri'f iiiioii 11 rctiTi'ii.M' wliicli sliull iiicliuli' tlio i|iH!s- tiiiii dt' the llaiiility ol' i-ikIi I'm- tlii> iiijiiricri allcgt'il to liavo Iti'i'ii HUrttiiiiicd liy tlic ollii'i', (ir by its citi/.i'ii!*, in I'tiiiiioctioii with tlu' claiiin prirtfiitcd iinil urirod \>\ it ; and, being Holiiit- oiis liiat tills »iil)iiidiiiati,' (|iifHficin «btiiiiM. do a<;i'U(' tliat fitln'i' may rtiilmiit tn tlic arltitrators any (|iu'sti(>n ot tiifl iiivnlvcd in said clainis and ask for a tiiid- iniT tlicifiin. till' (|ii('sli(in nf tin.' liability uf t-ithur tcovornnicnt ii|iiin llic tiicts liiiiiid to III' tlic siibjo't. of fiirtiior nogotlatioii. |8 !'J ArliAr IX. Till! liipb ('ontracliiii; jiarlii's liavini^ agrood to appoint two c'oinniissioiii'i's on tlio pint of I'luli govcriiineiit to make tlio joint invi'sli),Mtioii and report i!onl nd (hat the joint and sev- eral reports and rccdniineiidat"' 's of • lid coinini:: .ioners may bo in due form submitted to ' arbitrators, should the con- tiiigcncy therefor arise, the said agreement is accordingly herein included as follows : — Knch government shall appoiiu iwo commissioners to inves- tigate, conjointly w'tJi the coinmissioncrs of flic other govern- ment, all the facts having relation to ral-life in Hehring Sea, aJid tho measures necessary for its proper protection anil pre- servation. no 'i'he four commissionors shall, so far as they may bo able to agree, make a joint rojiort to each of the two governments and they shall also report, cither jointly or severally, to each govern- ment on any points upon which they may be unable to agree. These reports sliull not be miulo [lublic until they shall be submitted to the arbitrators, or it shall appear that the con- tingeiuy of their being used by the arbitrators cannot arise. Article X, Kach government shall pay the cxponscs of its members of the joint commission in the investigation referred to in the '" preceding article. Articlf XL The decision of the tribunal shall if possible, be made within ;i months from tho close of tho argument on both sides. It shall be made in writing and dated, and shall be signed by the arbitriiti>rs who may assent to it. The decision shall be in dupliciite, one copy whereof shall be delivered to the .•gent t>f (iiciit Uritain for his govcrmnciit, anil tho other copy shall be delivered to the agent of the United States for his goveriuncnt. '11 50 Article XII. Kach governnient shall pay its own agent and provide for the proper rcinuncration of the counsel employed by it and B s- .o.'i 194 ANNBX of the arhitrators appointed l»y it, and tor tlie expense of pre- paring and Hiibniitting \U vnsli to tlu" trilMiiiul. All other ex- penses eonneited w ith the arbitration shall lie defrayed hy the two goveriunents in eipial moieties. Article XIII. The arbitrators shall keep an aeiiirate reeord of their pro- ceedings, and may ap|ioint and employ the necessary ollicers to assist tliem. Artirle XIV. The liigh eonfraeting parties engage to consider the resnlt lo of the proceedings of the tribunal of arbitration as a full, per- fect, and tinal settlement of all (Questions referred to the arbi- trators. A, tide XV. The present treaty shall be duly ratilied by Her Hritannic Majesty and by the IVosident of the United States of America, by and with tlie advice and consent of the senate thereof; and the ratitications shall be either at Washington or at Lon. .)() If the result of the arbitration be to aifirm the right of JJritish sealers to take seals in tiie liehring Sea within tiio bounds claimed by the United States under its pt.rchase from Russia, then comjiensation shall be made by the United States to (ireat i?ritain (for tlie use of her subjects) tor abstaining from exercise of that right during the peiidetiey of the arbi- tration, upon the basis of such regulated and liinite' ,a 198 ANNEX 4. he ori82r), hotwccii Grout l?iit;iiii uiid Ilimia ; ami wliiit riijlitfl, if any, ill tlio liehriiii; Sou were licld ami i'Xciii»ivolyt'xorciBeil l)y liiiBsia utter naitl treaty? "4. Did not all the ritjlits ot' linssia as to iiMiudictioii and as to the seal ti-t tlif water boundary. in the treaty lielween tin- I'nitcd States and IJiissia of file IJOtli Vlareii, 18t>7, pass nniiii|iain'd to the United States under llint tri-aty? "5. Has the I'nited Statis any rijrht, and if so. wiiat rifjht of [trotection or ]ir()|iei'ty in the fur seals freijiii- itinjj the 10 islands of tlie United Slates ill I5i'hi-injf Sea when sneh seals are found outside the ordinary S-ndle limit 'r "' And whereas iiy article VI r. of the said tn-afy it was fur- ther afijreed as follows: — " If the di'terniination of thi' fori'jrointj ijiit'stions as to flu exclusive Jurisdiction of the Tnited State- shall leave the suh ject in sucli position that the coueiirrenee of (ircat Hritain is necessary to the estahlishinent of rcirulafions for the proper protection and preservation of the fur seal in or hahitiially resortinij to, the Behrini; St'a. the arhitrators shall then deter- '20 mine what concurrent rciriilations. oiitsispective i^ovei'nments. an' necessary, and over what waters such regulations shoiiM extend : "The high contracting parties furthermore agree to co- operate in sccuiing the ailhesion ot Other powrs to siuh regu- lations." And whereas, hy .Vrticle VIII. of the said treaty, after re- citing that the high contracting i>arties had loiind themselves iinalile to agree upon a reference whicdi should include the (piestion of the liahility ot each for the ii.juries alleged to '>0 have been sustained hy the other, or hy its citizens in con- nection with the claims pre-ented and urged hy if, and that "the}' were solicitous that this suhordinate fpiestion should not interrupt or longer delay the suhmission and defermi'iafion of the main ijucstions."' the high contracting parties agreed that " either of them might suhniit to the arhi- trators any ipiestion of t'-.u-t invDlved in said claims and ask for a finding theretui. the question ot the liahility of either government U|i(in the tiicts found, to lie tin- subject of further negotiation;'' -lO And whereas the rresicleiit ot' the I'liited ."^tates of America mimed the llonouralile .lojjn M. Ilarl.in. .(ustice of the Supreme Court of the United States, and the lloiiouiable John T. Morgan. Senator of the United States, to lie two of the said arbitrators; and Her Hritannic .Majes-fy named the Hight Ifonourable Lord Ilannen ami the Honourable Sir .(ohn Thompson, Minister of .lustice and Attorney reach ot camion shot from shore, and it ajipears that, from that time up to the time of the cession of Alaska to the United States, Russia never as- serted in fact or exercised any exclusive jurisdiction in Hehring's Sea, or any exclusive rights in the seal fisheries therein beyond the ordinary limit of territ> rial wafers. As to the second of the said five points, we. the said Baron de Courcel, Mr. Justice Harlan, Lord llannen. Sir .lohn 30 Thompson, Manpiis A'isconti N'enosta, and Mr. GregersGram, being a majority of the said arbitrators, do decide and deter- mine that (ireat Britain did not recognize or concede any claim, upon the part ot Russia to exclusive jurisdiction as to the seal fisheries in Behring Sea, outside of ordinary territorial wat rs. As to the third of the said five points, as to so mu'.-h thereof as retpiires us to decide whether the body of water now known as the Behring Sea was included in the phrase *' Pacific Ocean," as used in the treaty of iNiio between (iri'al Britain and •K) Russia, we, the saiil arliitrators, do unanimously decidt; and determine, that the boily of water now known as the Behring Sea, was included in th'' phrase " I'acilic Ocean " as used in the said treaty. And as to so much of the said third point as rc(|nires us to decide whiit rights, if any, in the Behring Sea were held and exclusively exerci-eil by Russia after the said treaty of 1825, we, the saiil Baron de (.'ourcel, .Mr. .lustioe Harlan, Loitl llan- nen. Sir .lohn Thompson, Mar(|uis Visconti N'enosta, and .Mr. (Ircgers Gram, being a majority of the said arbitrators, do ijO decide and determine that no exclusive rights of jurisdiction in liehring Sea ami no I'xelusive rights as to the seal fishei'ies therein, were lield or exercised by Russia outside of ordiiniry territorial waters after the treaty of 182o. As to the fourth of the said five |(oints, we, the said arbitra- tors, do unanimously decide ami determine that all the rights of Russia as t.ijnrisdictiini and as to the seal lisherics in Itchiing Sea, east of the water boundary, in the treaty between the United States ami Uussia of the ilOth .March, I^(i7, did pass unimpaired to flu; United States under the said treaty. tin .\s to the filth of the .-aid five points, we the .said Karon de (.'ourcel. Lord llannen. Sir .John Thompson, Maniuis \"isconti Venosta, and .Mr. (Jregers (iram, being a nnijority of the said arbitrators, do decide and deteiinine that the I'nited States has !iot any right ofprotecti"uor property in tliu fur-seals fVe'|Uenl- (i m m 200 ANNKXB 4. i li.'' iiig th(( isliuidrt of the Ihiitod Stafos in tlio Boliring Son, wlicii siitli sciilri iii'o tuiinil outside the ordinavv 3-iriilt' limit. And wliorcas the ut'oiv^^aid determination of thi* foregoing" (picstions as to the exehinivo jurisdiction of tlie United States mentioned in artiele \'I. loaves the subject in such a position that the concurrence of (J rent Britain is necessary to the estu- hlishment of regulations for the proiier protection and jireser- vation of tlie fur-seal in or habituallv resorting to the Hehring Sea, the tribunal having decided by a majority as to each art- icle ot the following regulations, we, the^aid liaron de Courcel, 10 Lord Hannen, Manjuia Visconti Wnosta, and Mr. Gregers Oram, assenting to the whole o\' tlu' nine articles of the follow- ing regulations, and being a majority of the said arbitrators, do decidi' and determine in the mode provided by the treaty, that the following concurrent regulations outside the jurisdict- ional limits of the respei'tive governments are necessary, and that they should extend over the waters hereiiuifter mentioned that is to say : (M\'re follow regulations.) And whereas, the government of Iler Hritannic Majesty did subn'it to the tribunal of arbitration, by article VTIT. of -*^ the said treaty, certain ([ucstioiis of factt involved in the claims referred to in the said Article V'li I., and did also submit to us, the said tribunal, a statement of the said facts, aa follows, that 18 to pav : — Fhhliiiijtii itf fiivl i>i-iipi.ciidix, vol. iij)." Niiini' Dati' AiijiMxiiimlf <'f "f hi^l;(iu-»' fruni Laihl wliiu I'llitlll StutfK making' •Sii/iiri'H, 'rijiiriiicm (hiuiiiil Ki(\nurilf Amia r.iik 10 W. I'. Siuwaicl l)i>l|>liiii (•rare Alfiril Ailuins . . Ada Ti'iniii|>li ■ Iiiaiilta. I'atlitinili')- Ti'iiiiii|ili luly tlo 1SH7 , 1.SS7 •l» 4, 1SX7 20 Itlauk hiali I'il.V Al-l.l. . . . Kate.. .. Miniiii'. I'atlilindri' Aii(t. 1, 1>W1 7."' iiiiliK Coiwiii di> 1, ISSt; T 1!, I8H(! 11.^ (In ill, ilii ■_'. IKSti Wanii'il liy "('nrwiii" in al"iiil Maiiii' iMisitiiiii iiH "Onwiiid." fid iiiili.M. KuhIi. .-.'.I dn ,|» ,10 dci , do I'.Mi .!<> i|,i |H'_' do !."> ■!.> . liiMiv jWariiid liy "liii-li" iioi tdcntir I ISi'liriii^' Si'ij l.SS!l ,11(1 Miili» KiihIi. l.S.S!l r.(l <\n <|„ is.s'.i l()nlii.,l Milt of liiliiiiit; Sia liy I " l!u>li " (';) .\s til |Hisltiiiii uliiii waiiird l.SSlt. :t."l llliil'n do l.SS'.i nil (III ill ISX'.I tlid.ii.l lint of n.liiiiiK S.ii hy •• HusI,.'- l.SS'.l do do ISS'.i ll.-i mill's dii l.S'.MI. -.Sfi/.id ill Niali Uav ('iiiwiii. .Inlv • III ilii mil. do • ViiK- .liilv Aim-. .ImIv .\lai. .11, II. (I, :ni of Gri'iit Hritiiin iuiets of cither cniintry as regards the taking of fur-seal in, or habitually resorting to, the said waters, were submitted to a tribunal of arbitration as therein constituted ; And, whereas, the high contracting i)artics having found themselves unable to agree upon a reference which should in- clude the question of the liability of each for the injuries alleged to have been sustained by the other, or by its citizens, in connection with the claims presented and urged by it, did 20 by Article VIII. of the said treaty, agree that either party might submit to the arbitrators any questions of fact involved in said claims and asked for a finding thereon, the question of the liability ot either government on the facts found to be the subject of further negotiation ; And, whereas, the agent of (treat Britain did, in accord- ance with the provisions of said article VIII., submit to the tribunal of arbitration certain findings of fact which were agreed to, as i)roved by the agent of the United States, and the arbitrators did unanimously find the facts so set forth to 30 be true, as appears by the award of the tribunal rendered on the 15th day of August, 1803 ; And, whereas, in view ofthesaid findings of fact and of the decision of the tribunal of arbitration concerning the jurisdic- tional rights of the United States in Hehring Sea, and the right of protection or property of the United States in the fur-seals frequenting the islands of the United States in Beh- ring Sea, the government of the United States is desirous that, in so far as its liability is not already fixed and determined by the findings of fact and the decision of said tribunal of arbi- 40 tration, the (juestion of such liability should be definitely and fully settled and determined, and compensation made for any injuries for which, in the contemplation of the treaty aforesaid, and theaward and findings of the tribunal of arbitration, com- pensation may be due to great Britain from the United States ; And, whereas, it is claimed by Great Britain, though not admitted by the I'nited States, that prior to the said award certain other claims against the United States ac- crued in favour of Great Britain on account of seizures of or interference with the following named British sail- 50 ing vessels, to wit : the " Wanderer," the " Wimiifred," the "Henrietta," and the "Oscar and I lattie "; and it is for the mutual interest and convenience of both the high contracting parties that the liability of the United States, if any, and the amount of compensation to be paid, if any, in respect of such claims, 204 20 40 ANNRX 5. 205 and each of thorn should iiIho be dotorminod tiiidor tho proviA- ionB of this oonvontion ; all claims i)y Great itritaiii under artiflu V. of tho modus vivendi of April 18, 18!t2, tor tho abstontion from tiahing of British rtoulur^ during tliu poiidonuy of said arbitration having bouii dotiiiitoly waived before tho tribunal of arbitration. Hor Majesty tho Queen of the l^^nitcd Kingdom of (4 roat Britain and Ireland and tho UiiitedStatesof Ameriiui, to thoond of concluding a convention for that purpose, have appointed as 10 their respective plonipotuntiaries : Her Majesty the Queen of tho United Kingdom of Great Britain and Ireland, the Right Honourable Sir Julian Paunce- fote, (tI.C.B., G.C.M.(}., Her Majesty's Ambassador Kxtra- ordinary and I'lonipotentiary to tlio United States; and Pre- sident of the United States, tho Honourable Richard Oliiey, Secretary of State ; Who, after having communicated to each other their res- pective full powers, which were found in duo aid proper form, have agreed to and concluded the following articles : — 20 Article 1. The high contracting parties agree that all claims on account of injuries sustained by persons in whose behalf Great Britain is entitled to claim compensation from the United States, and arising by virtue of the treaty aforesaid, the award and the findings of the said tribunal of arbitration, nsalso the additional claims specified in the fifth paragraph of tho preamble hereto, shall be referred to two commissioners, one of whom shall be appointed by Her Britannic Majesty, and the other by the President of the United States, and each of whom shall be 30 learned in law. Appended to this convention is a list of claims intended to ^n referred. Article 2. The two commissioners shall meet at Victoria, in the pro- vince of British Columbia, Canada, as soon as i)racticable after the exchange of the ratifications of this convention, and, after taking an oath that they will fairly and impartially invest- igate the claims referred to them and render a just decision thereon, they shall proceed jointly to the discharge of their duties. 40 The commission shall also sit at San Francisco, California, as well as Victoria, provided that either commissioner shall so request, if he shall be of opinion that the interests of justice shall so require for reasons to be recorded on the minute. 60 Article 3. The said Commissioners shall determine the liability of the United States, if any, in respect of each claim, and assess the amount of compensation, if any, to be paid on account thereof — so far as they shall be able to asjree thereon — and their decision shall be accepted by the two governments a ** .al. They shall be authorized to hear and examine, on oath or affirmation, which each of said commissioners is hereby em- powered to administer or receive, every question of fact not found by tho tribunal of arbitration, and to receive all suitable authentic testimony concerning the same; and the government of the United States shall have the right to raise the question f06 ANNIX 6. of its liability before tlio unmmiRaioiiora in any cane where it shall be proved that the vessel was wholly or in part the aotiial property of a citizen of the United States. The said cominiBsion when Hitting at Bon Francisco or Victoria, shall have and exercise all such powers for tlio pro- curement or enforcement of testimony as may heroatler be provided by appropriate legislation. Article 4. The commissioners may appoint a secretary and a clerk or clerks to assist them in the tratmaction of the business of the 10 commission. Article 5. In the cases, if any, in which tlie commissioners shall fail to agree, they shall transmit to each government n Joint report stating in detail the points on which they ditl'er, and the grounds on which their opinions have been formed ; and any such difference shall be referred for final adjustment to an umpire to be appointed by the two governments jointly, or, in case of disagreement, to be nominated by the President of the Swiss Confederation at the request of the two governments. 20 Article 6. In case of the death, or incapacity to serve, from sickness or any other cause, of cither of the tw commissioners, or of the umpire, if any, his place shall be I d in the manner herein provided for the original appointih t. Article 7. Each government shall provide for the remuneration of the commissioner appointed by it. The remuneration of the umpire, if one should be appointed, and all contingent and incidental expenses of the commission 30 or of the umpire shall be defrayed by the two governments in equal moieties. Article 8. The amount awarded to Great Britain under this convention on account of a y claimant sholl be paid by the government of the United States to the government of Her Hritannic Majesty within six raor.ths after the amount thereof shall have been finally ascertained. Article 9. The present convention shall be duly raffled by Her Eritan- 40 nic Majesty, and by the President of the United States of America, by and with the advice and consent of the Senate thereof; and the ratifications shall be exchanged either at London or at Washington within six months from the date hereof, or earlier, if possible. In faith whereof, we, the respective plenipotentiaries, have signed this convention, and have hereunto atfixed our seals. Done in duplicate al; Washington, the 8th day of February, 1896. 50 [L.S.] JULIAN PAUNCEFOTE. [L.S.] RICHARD OLNEY. i ANNBX S. 207 Appendix of (Jlaimh. Claims Hubinittud to tho Tribiiniil of ArMtnitioii iit I'arifl. Nulllr iif Vl'iwfl. ' )itli< • if .\|i|irii\iiinili' iliKtaiui' fnihi rnitiil Stall" Vi -.1 1 making Mi>i/.nri>H, H.' iKiin liillil wlliil M'lxi'il Mil... Cui'ntt'llH Au(t. 1, •Ntl 7ft Ciirwiii. 'riinriitoii ill. 1. •8tl 70 ili> ninviinl ill. .1 •*l 11.'. •III KaxnuiitM, . . . llu 2, 'x>\ WariiMl Itv Ciirwin in aUmt hiuik in iKMltiiiii iiH Onwaril. ^" Aiiiiii ll.rk . . .Inlv 2, •M7 <->tl KiihIi. \V. I'. Siiy Willi 1 ili> !•■ •H7 ft!l • Ill hul|illiM iIm 1-'. K 10 •III tlriin • lo 17. x; m • III Alfri'il AiliiiiiH . . An«. 1". ■h7 tia (III Ailii .1,. -Ti. ■s7 ir, 11. 'ar. Ti'iiiiii|ili , . ill. 1, ■h7 WariiHl liy Un-li nut ImntiT lli'lir- 'u\u S-a. Kiisll. • Ill .Inlv •III III, 27. 'Ml lili 'Mil .'>l» OA I'litlilimlir . . . -" Tiiinnpli • III II. '«'.! Oiiliiiil lint III llflirlM((f*<'al'V lln»li tiuiTV an til iiiir.itiiin wlicii uariii-i|. Illiick l>iaiiii>ii>l. • III II. 'Hit .'Ci lin-i;. I,il,V \\iH. <>. 'Sit tili •I.I Anul .Iiil, :iii, 'Wl ... ttriU'i'i^l iiiit iif Ili'liriii^'Sialiv KiikIi Kwti. Aiiu. i:i, ■Hit (III lIn .Inlv Mplie(l to the claims 20 Scope and interpretation of the convention 22-;«) •Turisdiction under 22, 24, 33 Construction in general 23 Prior diplomatic correspondence can not enlarge 23, 24, 32 No ambiguity; plain reference of specitic matters to the Commission 25 Precedents and authorities 27 No other clain>s referred than those specified 32 Analysis of convention 33 Claims of specified " persons" referred 3(1, 37 Persons in whose iieualf Great Britain can not inter- vene INDER THK CONVENTION 49-60 liritinh Muhject domieilcd in the United States a ciril eitixen of latter notion 49 Term '' liritish subjects" intentionally omitted 41 Kvidence of domicile 43 Owes obedience to laws of the United States 44 And allegience to their sovereign claims 45 I in^ II CONTENTS. l»KRSOXS IN WHOSE BEHALF (tBEAT BRITAIN CAN NOT INTER- VENE iNDEif THE Convention — Contimied. Hage. (ireiit Britain oaii nut nuike reclamation against the United .States lor IG liiniit of (iieat liritain's right to intervene lor i»rotection . . 4'J Tim Treaty of ISl "» covers case of 51 Orii/iiKtl riti:iHK <>/ I'nited States vrcn if ilomicilcd, if not nafHraliziil, in (irvat Hritiiiii, not pt'mons for whom tlitit iKitioii villi iiKihf nrldnuitioii r»:?-GC Autiiorities in liritisii Argument analyzed 54 Such citizens still owe iiUegiance to sovereign claims and extraterritorial laws of I'nited States 59 Nation of domicile can not make reclamation against country of original allegiance for injuries sutlered in violating such iillegiance and laws ((3 The cLAnis here not claims ok nation OG, 84 VesSHLS— l{E(iISTUV AM) FLA(t .NOT MATERIAL HERE 08-70 Vessels — Nation alitv follows ownebshii', not owner- SIIIl' NATIONALITY 71-81 li'egistry by British and American authorities not concln sive against anyone except person securing it 73 It is a municipal regulation only 74 Authorities in ISritisli argument analyzed 71) I'egistry, not ellective like a "sea letter'' or "ship's pass". . 81 The SPECIFIC claims eliminated hecause of ciTizENsiiir, civil ob political 8g-!»3 Compensation or ''.Measure of Damaues" 03-148 rriisiKvtirc Cdtrli, losn of Cdtcli, etr 93 I'rospective Catch — Tiie .ludgment of (ieneva 94 ICrror jn opi»osing argument corrected 94 Prospective ("atcli — British and American authorities 101 I'rospe(ttive Catch — .Judgments of other International Tribunals 105 Prospective Catch — Other judgments of the courts 109 Prospective C'atch — Authorities in opposing argument ana- lyzed 110 ComiiniKfttioii — Waniim/s 116 No prospective catch IIG Proper measure 1l'4 ■'4 CONTENTS. Ill Compensation or -'Measitrk of Damages"— Continued. I'nu.-. I'uiiitorji or rindirfirf (lamuyen lii('» Aliihaiiiii Claims caso not in point 12»i The t'liarge of Wiintoiimw.s IL'J) Ueview of the authorities 1.51 J'njxmliroiin vlaiins l.'t.J Kxperieuce under otlier conventions 133 Comparison with precedents i;{7 Personal claims /or ihimugeit for fnlnc imprisonment, etc l.'iS Claims for Irijal xvrricvs 1 U Thv mvasurv of caliie of seal skins 1 H Intinst as ilamaijes 1 \'.\ Fntert'st in lieu of future earnings and the future earnings also— legal absurdity \\3 Th«' law as to interest — authorities H4 TiiK Costs in Savwabd Case 148 The Additional Claims l.">3 The "Oscar and Hattie'" Case I.m, 477 OhSEKVATIONS AIM'LYINO ONLY TO LAW ON CERTAIN CLAIMS !.")(» The " I'athfuKkr " in S'cah Ha;/ I .">(! The " lilnrh- l>iamonil" \o. r, l.-.,S •/aims (lanilin's ''■ itWHonaV claim l."»S The (Jarolcna, (hiwarti, and Thornton as to abandonment hi/ claimants l.'iS .;■ ii- UnCERTAIN CHARACTER OF SEAL HUNTING 177 No DEFINED "SEALING GROUNDS" IN BERING SeA 20!» Duration of the sealincj season in Bering Sea 2-'.S ".Method for computing the estimated catch" dis- cussed 247 The value ( »f seal skins 2.">s Evidence relating to value of vessels 2 r^Piw IV CONTENTS. I'KBSONAL CLAIMS OF CAPTAINS AND MATES ;{19 TUE CAKOLENA .'WT The TH( tBNTON 3."»7 The On\vai:d 364 The Favoi'Kite 3t»» The Black 1 >iamond (188ti) 37."> The W. I'. Saywahi) 38;.' Thk Anna Heck 388 The Alkbeu Adams 302 TlIK (iBACK and the DOLl'HIN 3!»,") The Ada 402 The Triumi'H (1SS7) 4(»S The .1 UAMTA 414 The I'athfindeu (188'.») 41.s The Black Diamond (188y) and the Lily 423 The M innie 437 TheTkh MPU (1889) 442 The AKIEL 447 The Kate 457 The I'athfindeu (I8!t0) 4«2 Thi; IIenbietta 406 The OscAi! and Haxtik 477 The Winifred 484 The Wanderer 490 =-'" P'"'pm ; ^:1 AHOrMKNT FOU TIIK UNITED STATES IN UEPI.Y. \i I iii INTRODUCTORY STATEMENT. Ill siibiiiittiiij'' tlu'ir views to the Ili<>]i Coumiissioii, in rcplv 1u tlic iirji'iiiiu'iit iircsciitcd in Ix'liiilt' of (Ircjit HritJiiii, the iiiitlcrsi^iicd will, tor tlic ])nr|)os('s of oiilcrly and coiivciiiciit y these twoyTeat nations of eipial dij>nity and e(pial self-respect, it should liiid that spirit ahidiiiji' and mani- fest not only at the altar hut in all the ministers of the temple. They as.sert hefore the Trilmiial at the outset, that no juriflical purptise can be served, either l»y way of interpn^tation of its or<»anie law and rule of action — the Convention of 1H!I6 — or of its eiilifi'htment on the (pie.stioiis of liability or coiiipensatiou pn seiited at its bar, by imputations upon the {^ood faith of the United States, inshmatioiis a}>auist the truthfulness of their ministers, and charges of wantonness and evil motive against theCJoveninieiit. These }>ervade the argument. oi Great Hritain I'roni its introduction until the close of B s 1 p fpnlTJ' INTRODUCTORY STATEMENT. its liciuTiil (lisciissioii. Tlu'V iin- stiitciiiciits of |»n>nii- nciit iiiiil iiii|nrssivt' irrclcviiiicc. Tlu'v jiiv iit wnr witli tlu' spirit of iirliitriitioii, iiikI tiic tciidciu'vof tlicir itiHiU'iirc is ii^jiiiist the jiciicnil jifccptjiiicc of tliiit )iol- it'V for tlic iK'iifcful scttlciiii'iit of iiitcriiiitioiiiil li fourfs of coiiciliiitioii, wliicli is siii- ject of the interpretation of the treaty and convention, that the corres|)oudence between the (»overinn«*iits, frajiineuts of which are referred to and commented on in the IJritisli ars, challen};-ed by the Tnited States. In the Hritish arj>ument, at pa<>e (I, folio .">(), this statement is made: (1) This correspoiuleiiee shows tliat althoiiy;li the seizures occnrred on the 1st and lid An{!;ust, ISStl, and infonnation reitpecthuj the same irm nreired hi/ the I'nited States Strretari/ of State OH the Jsth of the same month, and a request was made for ])articulars by the British (Jovernment on tlie liTtii of September, no intimation as to the cause of seizure or any ])articulars rehiting thereto could l>e obtained from the T'nited States Government until the 12th of April, 1887, and not before the 11th (.i .i\«' accurate and authentic information. This was furnished with far more expedition than is usual, as shown b\ tliediphmiatic history of nations. In all the history of (Jreat Mritain's foreij:n relations there is not a case where there was as much expedi- tiiin in like circumstances. In the Fortune Hav ca.ses, referred to in the Jhitish brief, Mr. Kvarts submitted to (Ireat iiritain the *daims nl the I'nited States, for attacks upon and damages to twenty -two vessels under the American fiajfjon Auffust !, 1K71>. lie receiv«'d a reply from Great Hritain on A))ril H, \H8(l (Foreijiii K'elations, (Jreat Hritain, 1880, vol. 72, p. 1277 rt sn/.) In the case of the .ship Jotiis (an ocean shij) with her carfi'o, worth more than all the jiroperty of liriti.sh INTKODUCTORY STATEMENT. 'i '■' siil»i»Mts involv«Mi ill this ciist- tnyctlicr), vvlu'rcin tlic Hritisli iiiii|)in' iit'tiTWiirds t'oiiinl, iiii(l*-r tiu' Mixftl ( '(iimiiissiuii lit" isri.'J, tliiit ii Hritisli cruiser I smI •ci/cd ji sliiji siiiliii^' iiiidcr tlic Aincrinin H;i): («) Tiie vessels seized in lSS(i and ISST were seized and condeinnedonthet-ronnd that l>erin;jSea \vi\i^:im(irrrler 17, It^'.Ml. that tlie Inited States had exclusive Juris diction over 1(K» miles t'roin the coast line of the United States tei'ritory in Herinji Sea. ((•) Snhseciuently on the Mth .Vpril. 18!M. the United States (iovernnient advanced a new claim that they had pniperty in, and a ri^'ht of protection over, liir seals. Tilt' citations iiixcn do not. of coui'sc, sustain this ini|intation. .\n intimation to tlu' same clVcct, tiioiijili in tar less ohjcftionahlc form, was mailc iicforc tin' i'aris Tri- hniial: ami uc coiitciit onrsclvcs iiy rcfcrriiii;' to tlu- trcatnu'in of that intimation hy the I'minciit coiinscl who there rcim'scntol the I'liitcd States, at pau'c 2" ct SI I/, of xdlnme It of the .\meriean )»rint of the |)ro- ceediiiiis of that IVilninal. ( )n the latter part of the first |tMraj>Tiii)h of (2) ahove (|iioted we make this connnent: Xotwithstandini:' the statement iinpliedlv to the contrarv there maile, and exjiressly made at pao-e If, folio 1(1 ( " I'articnlars of claims had been fornndated and presented to the I Hi ted States (iovernnient"), and at pa ("I'he claiius i.etiialiy snhniitted l»v (Jreat Hritain referred to in the notes xerhaK's"), (Jreat Hritain, in distinct departtn-e from her own jH'ccodents and from the rules of international law in such cases, wli«'re one nation seeks iiidenmitv from iinotlier for iiijiirv to persons or property, never eaiised the claims t<»l)e audited or fornmlated in any maimer for ]treseiitatio!i to the I'nited States, and never pre- sented them. ():' the contrary on April IS, l8S8,as appears by the INTRODUCTORY STATEMENT. ^i li WiM trt'sj);isscr, or iis "iiii insult iciHnd, 1 1 tT Majesty's aiultassador torniiilly »'oiuiiuiiii- (liiU'tl to Mr. Iiii\ Jinl tlu' tollowiii^' (Kcc, p. Gll): Ilor Miijesty's (iovenmuMit have just receivctl tlie piuticii- lai's of Mit> claims tor coiiipciisation on account of Hritish scalers seized and warned oil' by tlie rnited States autliori- tics in lierinj; Sea. ,1 just assfSKnicnl of llicsc rhiinis iiiijitdrs to tluni ili(liciilt iritlioiil invixtiijolinn atiil ririjivtitiiin ; and tliey therefore wish to ascertain whether the Inited States (iovernnient would be disposed to a^^ice to a nuxed coniinission, etc. 'I'lic cliiiiiis were not iircsciitcfl in iiny I'orin until tlic Paris 'rriltunal canic toiictlicr in is;','!; and in the nieantinic ncLiotiatiitns were pcudin"^' Ix-twccn tlie ( !(i\ cniinents wlurciii tlie position ol" tlic I'liitt'd States, elaiiniiiii' jurisdiction to make tin- seizuics in (|iU'stion, and denying ilieir lialtility lor makiiiii' tiicin, was not cliallciiucd Ity (Jreat Itritain as tlie attitude ot' a "wanton" to the tla;;- ot" (Jreat Hritain." On tlie contrary, witlioui f'ollowiiii;- tlic practice in respect ot" sucli allei^'cd injuries, wliicli liad alwaxs ohtained wlicre riu'lit was asserted hv one and wroii;;' ati'ainst it h\ tlie clainiini;- nation, of auditiiii:- and |»resentinji- tlie claims, ilic -er delay the sul)iiiissioii and determi- nation of the main (|Uestioiis." i |. .:. i|i^iiLuiji|in3npw 8 INTBODUCTORV STATEMENT. It is subuiitti'd, tliert'torc, that tlioro is no WiiiTiinl for the charji'e tliat the rnited States liave tiuhnl in any duty uj) to this time; or that their honor or j>-ood faith ran be inipujined from any standpoint, wlien they have so far "failele to ascertain what these claims are, or whether they arise from injuries si;st; in 1 1)\- such "|)ersoiis." rnli(|uidated and u'la^'-r;;' c ' as they have lie<'ii, the present conveiitioi! ' .cl.^ , . oynizes that no lialtility accrued imtil ti.e licci^ion of the Paris Ti-ibunal, for such "laims are distinctlv delined in Article 1, as those "ai'isin^- by vii'tue of the treatv aforesaid, tin- award, and the iindin^s of the said 'i'ribunal of Arbitration" (at I'aris). At paii'e 20 of the Hritish arj^ument, folio "), is the followiuji': (.'{) Tlicv (tlicactsof tlic riiitcd States in sciziiifj' vessels in lierinjj; Sea) wuistitiitfil an iiiKiilt to the Jhtf Ureal lUitaiti, rcpiiiti'd from lime to time. accompaniiMl by the sci/ure and conliscatioii ol' valuable i)roi»erty. in the lace of continued protests, ((«(/ crcii ul'tir tin' nets ami (lerlarnlinnx of llic I'liittil tStattx ilonrnment had (jircn un iiiiplird anxi - of (Jrt'jit Hiitiiiii, r«'s|K'cttM| tlinnijilioiit the world for till' powtT ht'liiiid it, and iiiori' respected liy stnuiji- nations of all civilizations for what it represents l)esi'nity, would lie received as satisfaction. The irrelevancy of the statement in its beariiiji' on the (piestion of dama^i'es will l»e considered later oi;. (h) 'i'he charjic that the I'liiteil States had been jiuilty of a breach of faith that is here madi' was lU'ver intimated in the di|)lomatic coiTes|)ondence Ix'tweeii the (lovernments. I'roiiiptly on learninji- that a niisunderstandiiiji' was clainu'd oil the part of lier Majestv's repii'seiitativt' on the subject of sei- zures, Mr. liayard, on Aiij;ust UJ, 1S87, correctecl the inisiniderstan, ISS7) coiitained assurances (i|uotin}>' troni tlie letter of the Itiilisii ambassador) "tliat iieiniin}; tlie coiKliision of ilis- cnssioiis between tin' two (loveriiinents on {•eneral (inestioiis involved, no t'nrtln'r seizures would be made by order , appears this statement: (4) (Intil the year 188(1 the luited States (loveinnient by no positive act soufiht to exercise any f.xclnsive Jurisdiction over the waters of ISeiiiif; Sea beyond the usual territorial limit; nor did they by any active interference intimate to n of l.SS.">. Sir ( 'harles lius.-ell. in his arjiument at Paris, (piotes the statement of Secretar\' iJlaine as follows, from his dispatch on the >nliject of P>ritish sealinj;', date(l danuai-\- '_'■_'. lS!t(). where he says: Whence did tlic slii|>s of Canada derive tlie right to do in ISSfi tiiat whicii they had retrained from doing for more than ninety years if In all fairness to both nations, after all issues of fact lave l»een investiiiJited and resolved bv the Par IS Tribunal, it >liould lie stated that t'rom the date ot ac(|uirement of .\ la ska in isilT until, bv reason (»f what took place, in the \far 1 ssf) the (piestion of jielaoic sealinji' or the jurisdiction of thi- United Slates in the nrenuses w j Sim i not assertel auainst ( Jreat Hritain.for tli pK' reason that the i,.f'er (iovfrnment or its sub- jects had not challen;ied that jurisdiction or interfered thtl wi lisl dicti le excUisive c( •ntrol bv the United States of seal IIU' as clauuei I in I ierin;;- Sea, at Pan '11 le |uris- on was asserteil as soo n as sidistantiallv infriuijcd. INTKODL'CTOKY STATEMENT. ()>vin«i- to the <>T!ivity Jtiid iiiii^i'iiitude of wliiit is cuIUmI in llu' treaty tin- "Miiin Coiitiovcrsy" hetwceii the Tiiitetl States anil (Jreat Uritaiu, the iutenia- tioiial (|uestioii of juiisdictioii, the chiiins involved for losses to British snlijecls have Iteen ^iven an iiii|M»rtan('e out of all projtortion to their si^iiiHcanee. Lifted into view by the supreme fejiture of the con- troversv, a few small lishin;^- hoats have heen the siih'u'et of |trolon;i('d neji'otiation itelween two <>Teat nations, resultin<>' in the or<>anization of a llijih Conrt, composed of jurists of distinguished position and learninii', to make an assessment of values and pass upon (piestions. involvinje<'ts, which can he considered here at all, liave heen ^^iven a most incon- gruous dignity : and. too. from the tMitside standpoint, it has seemed that ureat tiects have heen dri\t'n from the sea 1)V the IJniteil States from \ car to \ car. 'This is true, hut tlie\ have not l)een the fleets of (ireat Ihitain. Tlicx' lia\c heen the \ essels of citizens of the Initeil States, in the proportion of loss to that of the sid)jects of (Jreat Ih'itain as ;i thousand to oiu'. ("onfusinji' this distinction, the |iuhlic mind has a>sumed that all the results of the action of the I'nited States in lierinji' Sea (action suiistantially in respect of its own shippin;^' and its own citizens) fell upon Ih'itish subjects. This also has jiiven a factitious diii'uity to these tdaims. When from the claims presented here there are thrown out those ur^cd unlawfullv because of their actual ownership by American citizens, who can not be represented by (Jreal Uritain under this convention, the residuum of actual Hritish losses will l)e foinid small indeed. 11 "Pi ^m ■'|-',H"i(iH»P!ll|Pfl!I. 12 SIMMARY OF LEADINO POSITIONS IN REPLY. It is (thvious, li(iv> t'ver, tliat tlu' siiiiilliu'ss of the iiiiiouiit involvi'd ill nowise (h'tnii-ts tVoiii the iiiijior- taiiee of the iiiternatioiial (juestioiis. A sense ot" tlieir professional (hity to the; Coiiuuis- sioiiers, who have consented to a(kl to the exacting responsihihties of the lii<>h jdaces they iiohl in the jiuliciarv of tiieir respective coniitries, tliat of niaster- iiiji' and disposing- of the international controversy einl»race(l in this enorinoiis record and its adjuncts, has impelled the counsel for the I'liited States to endeavor to aid them with ;i'l that conscientious research and analvsis on the l,iw and the facts can atl'ord. If, in the result of this purpose, it should seem tliat any excuse is needeil for the space taken in j^atli- erin<>' and presentinji- the evidence under the several heads, with intellijiihle and orderly references, that excuse mav he at once found l)y coinj)arinji- with the record, in any one instance, the statements under any caption whatever, in the British argument, treatinjjc of the facts. SUMMARY OF THE POSITIONS OF THE UNITED STATES IN REPLY. At this place we siilmiit lirief synopses or head- notes of the leadinj;- positions taken in the ar|M' tit" tlic coiivciitioii in this ciisc is dctinefl iiiul limitt' not sliare these views as to compro- mise. The chan, and opecially to their national assertion ol uliat is \ariously termed dominion, no\ creiLiiitx', or jurisdiction. .\(iii ciiiisldt such a person ma\' owe original allcal- aiu'c to (ireat ih'itain. and //(*// cuiisldt he puts hi> slii))s under a Ih-itisli lia^' and a Hritish re^istrv, he is still a resident of the I'nited States, and so amenable to their law- and absolutely bound b\ their' assertion of so\crei;inty. \\ liate\cr ipiestions there may be as to violations of national iliunity, ol' the Ha;;-, and the shi|) (wholK (piestions of diii'uity lu'tweeii nations), in such ca.se he is not a person who can enter an\- uunucipal court, nuicli less an international coinuiissiou on claims, and SUM^rABY OK LKADINO POSITIONS IN UKPLY. If) TV A cili/.cn ot" the I'liitrd Stiitt's, wlii'n'vcr iTsi of a ship made hy the same nation, in respect of a suhject or citizen, in net court hefore has it heen claimed that the innnunitv (if the tla<:' and of tlu' di'ck from molestation l)y other nations on the liiiih seas carried with it in courts of admiralty an, wlu-re, or in anv international court ever held, anv exclusive jiresnmption of pri- vate ownership. On the conti'ary, in the courts of Knjiland as ro forei;^n ships, and in the courts of every civilized nation, passinji' the . Mi T^ 16 SUMMARY or I.EADINO POSITIONS IN KEl'LY. IIIII«- III >1 ill . Tlic iiii\iiitt'iiiiiic(' ot' tlic ri;ilits of (loinicile in tlu' Iiis- torv of iiitcniJitioiiiil law, iis \\ ill lie st'oii, shows — (1) Fn'«|ii('iit iisscrtioiis of ]>rot('('tioii in tinuf of ])i'iu'(' iiji'Jiinst iill other niitions rjir/if tlic im/ioii of iirif/iiKtl (illcii'iitiKc : iiiid in th«' ii|ii»lical»lc principles liiid down l»v the iinthorities this exception will ..1 ,... iw. f..,.',.,i :.. »,....>,. his country. In other words, to he protected hy the Government of the nentral in such conilitions, it must a]>pear that he has maintained the status of the (Jov- ernment of his domicile as to neutralitw \\\ these well-settleil doctrines of international law, 1)\- the treatv of \Vashini;ton, the Paris award, and this convention, citizens of the I'nited States, wherever domiciled or commoi'ant. are not jiersoiis "in whose hehalf (ireat Uritain is entitled to claim compensation from the I'nited States." V. '{'he law of "compensation" in cases of this kind is nstitiilid ill 'iiil'unim. \\\ the Kn;illsh and American law, and ahove all, 1)V what nmst he t^ken in this trihimal as its authority in international law. in cases of precise analo;^y to 1*9 SUMMAUY OK LEAKING I'OSITKJNS IN REPLY. tills, |irosjH'ctiv(' |)n>Htrt and loss of cah'Ii ciiii not Ik* iillowi'd to (Jrcnt Hritain l»y tliis ( 'oniniissioii: In any case (a) wlicrc tlic I'nitcd States (ijtfiro- lir'nitril tlic vessel l»y sei/.nre, or l)y nlthnate proceed- infi's relalinj'' Itaek to tlie seiznre; or (h) in any case of selziwe where the I'nited States ordered a release, if the release was not aeeepted, or if the facts disclosed Mil intention on the part of the claimants 1o al)andon the property to the United States l)efn, and the like, committed on the liijih seas, or n; that sovereifi'ii's territory, are not before this Conijui'^ ion. I'lider international law and by international prece- dent no nation has vet claimed to recover damajjes B s 3 17 ll'll ilH!|-:»i'l"»W f mm IS SiUMMAUV OK I.EAOINO POSITIONS IN KK.FI.Y. for such arts, fur dlsfrihutioii 111110111; cliiimaiits, imr Ims aii\' iiiitioii ever rcftoTcil sucli (questions to iirl»itniti(»ii or cuiiiiiiissidiit'rs for ii (liiiiiii^t's jisscssincnt. More- over, cliiiiiis for "smart iiioiicy" or for satisfaction of natiniial all'roiits, if aiiv occiirrt'd, arc not claims of •'jtcrsuiis" within Article I of this convention, "in whose hehalf (ireat ISritaiii is entitled to claim com- )>ensation from the I'nited States.'' VII. 'There is no warrant in international law for the al- lowance of |»iinitorv or vindictive damaj^cs as hetweeii nation and nation. There is noantlairitative jiidiiineiit in the courts of either coinitr\ which would authorize a lindin;;' that the rnitetl States on the facts in this record liaxc lieeii fiiiilty of " wniton injury," l»ad motive, or malice, and tlie aut' ies cited in the British arLiiimeiit under these h re not in iioiiit. VIII. The claims that are ]iresented, which can lie heard w itliin the terms of the coincntioii, for the most part, ha\<' lieeii so lii-ossK exauLicrateil that they are |>re- posteroiis and exiortioiiate, and wherexer such claims liave lieeii made willtiilly or corriiptly extravagant the «daimants are entitle(l to the lowest estimate of com- pensation fonnd within the covers of the record. IX. 1?\' the rules of the common law of the two countries and of international hiw, interest, as claimed, can not be alloweil in the class of cases presented to this Trilmnil. hecaiise (a) the\ (ireat Hritain ii adjustment of at expressly excIlK its reference to emiiraced and n hiinal. which aw, ceediiiji's of the I the term "costs i attached to the or eiilariic the ( which exclude it within iVrticle I, injuries sustained Hritain is eiitith the "additional ( of the preamble INTERN SCOPK AND IN'I 111 this coiitni ered, wei^ihed, a In piirsiiinji' tl the I'nited State- tainment of what here, to resort treaties and jiidy (Jrcnt Hritiiin incurnMl by tliiit (Jovcnnncnt in the iHlJMstincnt (tt'ini intci-Uiitionjil dillicully; (//) they iim «'X|)r('ssly cxchidcfl tVoin tlic Convcntinii in terms l»y its rctcrciu't' to tin- cliiinis rct'crnMl iis lliosc onlv cnihrficcd iiiiil njinitMJ in llic iiwind ot' tlic I'iU'is Tn- bnuiil. uliifli iiw iiril cxchidcs this cdiiiin, iis (h> the I'lo- (•(•(•( hnji's of the I'aris 'rril)nnid; (r) tin- intcrpidiition of the term "costs in tlic Siiywjird ( 'msc" in the schcdidc jittiiidifd to the convention c;ni not control, niodit"\', or enhirjic the express provisions ot' the ciHucntion, which exchide it; iind ('/) it is not ii chiiin endtriiced within Artich' I, nnnicdy, •ill chnnis on nccoinit ot" Injniies sustiiined l»y |ieisous in whose hehidt' (Ireat Hritfiin is entitleil to chiini conipeiisiition," or one ot" the "iidditionid cliiinis specilied in the iit'tli pMnii^riiph of the prejimhle hereto." INTERNATIONAL LAW APPLICABLE. SCOPK AND IXTEKPHKTATION OK THK CONVENTION. In this controversy idl (pi«'stions must l»e consid- ered, weighed, and decide^l by iiiternationid hiw. Ill pursuinj'- their ar^uiueiit under this convention the Tnited States do not tind it necessary, in the ascer- tainment of what principles of that law are applical)Io here, to resort to any sources of authority except treaties and jiidjjfments of international courts, vhich are universally held to be of the most biiidinj>' force, an, |)|i. i-l() (I SI If. \\'liiitcvcr iiitcniiitioiiiil liiw iiuiy lie in its lirondcst dctinilioii. we liiivcit for ii|»|)liciition licrc in positive form. A\'ii;itc\i'r it niii\ itc in its iipplicntioii to tlic contro\crs\ lictwccn tlicsc f\v<> iiiitioiis, it is not, jis l>nikc s;iid of politics, "'Tlic science of circinn- stiiiices." Tile I'liiled Stiites do not expect here il dill'erelit ii|iplic;ilioii of t lie rules of intern;ilioiiiil liiw from tliosc \\lii<'li liiixc lieeii Mpplied to tlieir dis;id\ iiiiliiuc in tlieir p;isl liiNtorx. nor will tliey seek ji re\ crsjil of those rnh> w iiich llie\ hii\e heretolore siicce>sfiill\ iii\oked to their iid\ ;iiit;iiie. iilthoiinh their ;i|iplic;itioii to the proeiit con!ro\cis\- would l>e iinfii\(ir;il»le to them. rnK i..\\v .M'i'i.viNii TO Tin; claims. Ill delininL:' whiit i> nie;int i)\ iutern;ilioii;il l.iw liv colisclil, I'llillimore iii\e> the I'oljow ill" : (l) 'I'lic ((iiiscnl 111' Millions is ('\ jdciict'il liy the ('(intents of ti'ciilics. wliicli. iipi' tliis as well as lor nilicr reasons, consti tiitc a most iin|i(ii'laiit jiart nt' uitcrnalional law. CJi 'I'lic consent of nations is also cn idciiccd h\ tlio ilcci sioiis of till' prize eoiirts and tlie triliiinals of international law si|iiii<;- in eaeli coiiiitrv. (.'^ee I I'llillimore. Xl-I\.|). Hi, and id., p. .■>■"•. I.X'll. willi \oiy lull consideration of aiilliori- ties from Lord Slowell down -ilnjilisli and Aiiierieaii.) N'attel (li\ ides the iiiillieiitic sources (d' interiKitioiial law into \ iiliinlarx . con\ cntioiiiil, and cii>tomar\ laws. W liealoii di\ides the \(ihiiit,ir\ law id nations into com (•iiiioii.il law and ciisioinary law, the former iie- iiio- introdiiceil l>\ treat\ , and the latter hy nsau'e: the foriiier l)\ express consent, and the hitter li\ TIIK IMKUNATIONAI, LAW AIM'MCAHLK. tiicit cimsciit l)('t\\ cell iiiUioiis. (Sir SluTstoii Uiikcr's lliillcck ini Iiit('riiiiti'>iiiil l.iiw. \'(>I. 1, oil (m1., |). .">■_'.) Si'c 111.. \'i)l. I, |». 51). citiuii' ili'cisiiMi nt' mixcil coiu- iiiissiitii: 21 *' (irciilcr wciijlit is Justly :itrril)iital)lt> to tlic Juil}>;iii<'iits of iilixcil IrilMinills. tijtpiiiinril hji I hf joint roustut of thv srriTitl Stiitis hclirrni iciiirh llu'ii tire to ihciilr, tliaii to those of :i(liiiii'all\ coiii'ts cstalilisluMl liy. iiiul (li-|ifiiiU-iit in sitiiii^ inciisiuo on. iLc inslrnctioMs of a sinjilc State. Ill- iniiiiicntiil iiws o t" u;iiliriiliir Stilt CS <(lll (If rrtrrrcti looiihi ns iKirtiiiildrdiliiiissini/.s ol f/ntnid jiiiih ijilrs (If/ilii/sl llir Slillr rlidifiln/ lliilll. (Sir SliiTslull •akcr Hal iiifck, \'..l. I, .) The law III' iiatiiiiis is ahsoliiti'lx iiiil(|iriiiiiMit ol' iiiirilial laws. {( )|)iiiiini nt' arliitralors, i';i|uTs rc- iiuiiiiri)ia aiiiii:' ti> 'IVratx nt \\ aslii ti>ii. :i-l()|; award, i'euiTal concurrence of views (I Kent Com.. \'ol. 1, |i. Ill), hut particularly if the text writers ami authority l»e of the countrx' assertinu the contrarx' doctrim-, the authority should he I'e- ceived. (Sir Sherston Baker's ilalleck on Int. I.inv, Vol. I, pp. (XMil.) In the lanjiuaiit' of i'hillimore: Ittiic iiutlioiity ol' Zoiicb. of \.vi\ of ^lanslield, and, iibovc all, oCSttiwoll. he against the demand of l'ai!:;land; if \ alin, Doniat, I'otliicr, and Vattol be 0])i((»si'd to the pretensions of I'nince; if (uotins and liynkershoek confnte the claim of Holland, I'litfendorf tiiat of Sweden: if Ilei'ieecins, Leibnitz, and \\dllf anay themselves against (iermany; if Story, Wheaton, and Kent condonm the act of America, it can not be supposed i except, indeed, in the parti<'nlai' epoch of a re\<)lntion. when all regard to law is tranii)led under foot) that the (ii-uuils itnd pretend to decide upon oilier points than those siih- milted to them, their decision is in no respect hindinij. T'hus, tilt' awanl of the Kiiij;' of tlie Netlierlands, mi I'elert'iice by treaty, in IS'JT, of the (|iu'stioii ottlie iiortlieasterii boniidary of the I'liited States, not beinj;' a decision of the tatiitfs ami ))ri\atf <'niitnicts. ( Wlicatoii Klciiicnts lilt. Law. l*t anil y. ;5.'.."i: I llallcck. ji. L'Ofl.) To li'd oiitsiilc id' the treaty in scareli id cinijiTtim is ti> I'liilcaMir tn eliide it. (ielis, Li\. 11. ell. WU. sees I. see. WW. p. -JUT.) (ireanlcal -.ix > (( ireeiilcal \vi\y. When parties 1ia\ e delibcratelv writiiifi' in siuh terms as iiii|ior; any uncertainty as to tlie ohjeci men I. it is conciusivel.N i»resiiiiied that the wlmlc i ima.ui'ineiil of the parties, and the extent ami inaniicr of tin ii miiicrtak inn, was reduced to \vritiii]n'; and all oial tesliiiiony of a pre- vious eolloiiniinn between the |iarties. or of convci -nation or declaration at the time when il was coiii|deted or afterwards, as it would tend in many instances to siilistilute a new and ilirt'erent contract for the one which was really ajireed upon, to the pn'.judice, possibly, of one of the parties, is rejected. The lirst maxim ul' \ attcl is: It is not allowable to interpret wliat has no need of inter pretation, for when a treat,\' is conceived in (dear and precise terms, and the sense is manifest, and leads to no absiirdit.\-, there can be no reason for refusinji' the sense which is natii rally ineseiited and manifest. To go elsewhere in scan h ot •J3 Kent ( 'iini.. p. 1 < 1: cliaji. ■_'. scr. 1 7. (\'atti'l. \.v Drnit ucs L»(;;;-l".iS: llallrrk.\'id. on l',\ lilrnrc. Vol. 1. at their enuaj;einents into liual nldiiiiitioM. wjthiiiit I ixtciii of sncli cii"ay;e- ■lii rm^ IfTWWiT 24 interpketation and scopk of the convention. conjectures is to endeavor to elude it. (N'attel, Le Droit des Gens, Liv. II. Cb. XVI], sees. 2G3-21»8: Halleek, Vol. I, 297.) The whole treaty must be considei d together, and an interpretation given to each particular expression so as to agree witli the tenor of the whole instrnnient. (Vattel, supra; Ilalleck, Vol. 1, 29H.) ^'Jltt<'l says: In order to obviate all (litliculty it is necessary that the arbitration articles siutuld jirecisely specify the subject in dispute — tiie demands of the one, the objections of the other * * * if then the sentence be confined within these i)recise grounds the disiJUtants must aci|Uiesce in it. (Chitty's Vat- tel (I'liihu). p. L'TT.) It is clear tliat tlic scojic ut' tin; treaty or ('(mvciitioii is to lie iiiiiitefl strictiv to tlie coiit'erriiit'' powers ot" tile instnmieiit. The decision by arbitrators must be disicgardcd wlieu the tribunal lias clearly exceeded the powers given to it by the instrument of submission. (Hall on International Law, 'Itli i;d.. p. .tTtt.) 'riiei'e lieiiij;- no ol>seurit\ oi" aiiiliiritish ar^nnient re"'anlin-, and that it was sulistituted for the proposed tindiiiy- siihniitted by the Tiiited States. Article IX of the award shows the same thiii;^'. Tliiit award beinainst that nation. \\u, \). 1,'J, Jierlin Aibitratioii.) I>y ii |)!irity ot' rcasoniiijjisucli nation can not enlarge till' sco|i(' (d' the draft. This ( 'oiniiiission is as cli-arly liniiti'd l>v tlu' sclu-d- ulc of Hritisli (daims lud'on' tlic I'aiis 'I'rihunal, and tiu'sc spccilically and with «'xa('t |iri'cisi(in dt'scriiu'd, from pauv to pap' inidnsivc, in the *' Findinu" n-fcrrcd to in .Vrtich" I and tlic |ircand)h' (d' this Convention, as if that schedule were set out in the itody of the ( 'onvention. .\i'ti(de I refers to a schedule which purports to he a sununarv, Itut it also refers in terms to the iindin^^s of fact for the full and detailed statement of what is referred to the Connnission, aud the liudinus of tact ar<', we repe.;t, expressly made a part of the ("onven- tion 1)\' ret'eiTinii' hack to the preand)le, where those tindinii's are ideutilied with as uuudi etVect as if em- l)odied. The authorities unite in iletdarinj:' that the ordiuarv rule of iuterpretation of contracts and statutes applies to the interpretation of treaties. The rule has added emphasis when the international compai-t is entered into amonji' nations wlii>se orj;auie law re(piires the ratification of the eitmpact l>v more than one branch of the Government. This aspect of that (pustion was exhaustively dis- cussed Ity arl)itrators and hv counsel in the Paris Trilitnial. it arose out of the propo.sed tiiuliufi' of i^ IXTEKPKKTATIOX AND SCOPE OF THE _ CONVENTION. facts, iuid tliiit discussion cxpljiiiis tlu- rciisdu why, under Article \'lll of tiie treaty of l'Vl)niary 211, IStl'i, c(»nfemnji' n|Hin tlie arhitrators jxtwer to find (]uestit»ns of fact involved in the chiiins of the one nation a^^ainst the other, they avoided findinji' any fact essentially involvinj;' a conclusion of liahility. One fjUestion discussed and avoided in the findin<>' was whether the arl)itrators had power under the reference of Article VIII to find that any act of the United States or of Great Britain was "wron<>'." Another (|nestion discussed was, whether a findinji' of fact niijiht cover tln' (|Uestion of how the ([uestion of citizenslii]) would atfect the (|Uestion of liability. These Hndinjis were all avoided, first, l»ecause. by the ])r(»i)i-. ai'd strict construction of Article \'1 1 1, the trii)unal had no power to find facts on which a liability or an escaju' from liability w<»uld directly follow: and second, because no representative of the United States, without the concurrence of the Senate, could by con- sent enlar<>e its sco])e. (See collcxpiy — Sir Charles Kussell's argument for (Jreat Jiritain, U. S., vol. 13, pp. 4(1-06, inclusive.) It is therefore especially true here that arbitrators, or commissioners, always liniit*'d to the powers and to the suljjects in exjiress terms referred to them by a treaty or convention, have not the power to enlar<>'e its scope or l)y interpretation and coiistnu'tion to make what is known in domestic jurisprudence as judicial-made law. The construction contended for in the arffument of Great Hritain is a menace to the convention itself 27 .:l4 m This is a reference of s])ecific claims, and in this respect is unlike certain claims conventions, and is like others. Under the claims convention between the two coun- tries of February S, 1853 (Treaties and Conventions 1,1- .mi '^I'ljiiPtf 2H jntehpkktation and scope of the CONVKNTION. lu'twi-cn flic L'liilcd Stiitcs ami otiicr powers, Kd. '811, \)\). 44")-(l), tliiTv Wiis ivtV'nvd to the Commission in ti-rms: AuTicLK I. * * * All ('liiiiiis oil tlie part of ('orjiora- tioiKs, (;oiiipaiiies,or })iivate individuals, citizens of tlio I iiited States, u|)()ii the , ami whieh i/et remaineil nnsettleil, as a'ell as (uij/ other such vliiims n-hieh mail he pre- senteil irithin the time siiecijied in Article II f, etc. It lias Ihh'Ii t'ir(|n('ntlv lii-ld, nndcr sucli a cont'iT- mcnt ot" |io\v('i', that tlic (•ommissioncrs nia\' jiidj^'i' ot their own jurisdiction on the ([nestion of citizenship; but it is e(|iiallv clear, and was held nnder that com- mission, that, as to all claims which had not heeii pre- sented to either ( iovernment since the treaty of 1S14, or which weri' not presented within the time specified in Article 1 1 1, the ( 'ommission had no jurisdiction. Hy the treat\' of W'ashintitoii, Arti(de XII, a com- mission was created to whicii was referred: All claims on the part of corporations, companies, or pri- vate individuals, citizens of the United Stales, upon the Goveinineut of Her ISritannic Majesty, arisinjj out of acts coniniitted against the i)ersoiis or property of citizens of the I'nited States during' the i)eriod between Aju'il V.i, lS(!l,and April !), 1.SG5, inclusive, not beiuR' claims };rowing out of the acts of the vessels referred to in Article I of this treaty (Alabama Claims), and all claims, with the like excei)tion,ou the part of corporations, etc., subjects of Her Hritaniiic Maj- esty, upon the trovernment of the Tnited States, arising out of acts coniniitted against the persons or property of sub- jects of Her Uritannic Majesty during the same period, which may have been jiresented to either (Government I'or the inter- position of the other, and which yet remain unsettled, etc. (Id., p. m.) '? i:l INTERPRKTATIOX AND 8COPK OF THE CONVKNTION. 29 It proci'tMls like tlit' Coiivi'iitioii of lsr»3. providinj^- "tor iiiiv other siicli clfiiiiis ns iiifiy Itc pivst'iitcd" witliin a Cfrtniii tiiiic. Oil tilt' jiciicral rct'crciicc, the jiirisdictioii to decide MS to who were si-hjects oi- citizens was iindonltted, liiit on tiie speciiic limitation as to the chiss ut' chiinis, in tliat they nnist have arisen hetween April 1,''>, l.S(;i, and April !), isilf), and in that they must not lu- claims ji'ro\vin;idnt of the acts of the vessels referred n> in Article 1, it is clear that there conlil he no juris- diction whatevev in the commission. Like conventions with similar ))rovisions as to citi- /eiiship were entered into by the I'uited States with France .lanuary lo, 1S8(); with S|)!Mn Kehruary ll-ll*, 1S71: with ]\rexico July 4, ls6S: nnd with (ireat Britain ,lidy li', 1sl>-_> (Id., j)]), 'jr.i;, 4ls, TOO, 10'_*"»), for the purpose of ascei'taiuiu"' and determin- ing' the amount of indemnilication ilue to the citizens of the Tnitetl States under the decision of the Km perorof Ihissiji (referre(| to in the opposin;:'arj'ument). Articles II and III of that treaty provided for a method of ascei'tainment of the avera!.;(' \alue of cer- tain property, ami havinji' ascertained that, it inis limridcil that the Secretary of State shouhl furnish the ( 'onnnissioners (/ list of this mid ullicy /iiiratf jirop- I if// fur irliiili tlir y limitin;^' the jin'i.sdiction of the Cinmiissioners Ity a specific list. (Id., p. 420.) 'i'he hist(»ry of the Alabama tri-aty an'! arbitration is ('specially instructive in this connection, because of its itroad conferment of jurisdiction and its bearing on the contention of (Ireat Uritain here that tiiat (Jovernment may present a national claim as distin- liuished fr(»m those })reseute■ mmmi^ imm 30 INTICKI'KKTATIUN ANH SCOPE dl" THI'. CONVKNTIOX. Artich's 1. Ill, iiiid X ciiild-jict' tlic (•(•iit'iTiiU'iit of jurisdii'tidii U|miii tlic iii°l>iti'iiti)rs, iiml so iiiut'li of tlicsf articles !is is iicccssiirv to «'o\t'r the point \vc siilnnit. (I.I., pp. 47!t, 4«1--J.y AiiTiCLi". I. Wlicrciis (lilVerciicfs lia\c arisen iK'twccii the (.ioveniinent of tlio United States and the (iovernnient of Her lliitaiinic Majesty, and still exist, fiiowiiig out of the acts coniMiitte*! by tlie several vessels, wiiich have jjiven rise to ///(■ cliiims (/I iivririillj/ hiioirn tin the *^.\ltiliritish ports: Now, in order to reiuovu and adjust all complaints and claims on the i>art of the I'nited States, and to provide for the speedy settlement of such claims which are not admitted by Her Itritannic Majesty's (lovernment, tlu' hij{li contract iiijj i)arties afjree that all the siiiil rlaiins (jroirittii out i>/ nets rommittfd liy the ii/dirKoitl vvHurlx, anil fieiierirallji kiioini as thr ^^Alahiima Clnims" shall he le/irrcil to a tribunal of arbitra- tion to be composed of live arbitrators, to be appointed in the ftdiowiu};' nnuiner, that is to say : One shall be named by the President of the United States; one shall be named by Her liritannic Majesty; His Majesty the Kiufi of Italy shall be rei|nc8ted to name one; the President of the Swiss Confed- eration shall be rciiuested to name one, and His Majesty the ICnijieror of IJra/.il shall be requested to name one. • • • • * Akticlk Vlll. * » • The said tribunal .shall ttr.st deteiininei.s to each vessel separately whether (ireat IJritain lias, by any act or omission, failed to fiillill any of the duties set forth in the forcfjitin;; three rules, or recotjiiizcd by the (irincipl's of international law not inconsistent with such rules, and shall certify such fact as to each of the said ves- sels. In case the tribunal tind thatCreat liritain has failed to fulllll any duty or duties as aforesaid, it may, if it think proper, proceed to award a sum in jjross to be paid by (ireat Britain to the United States for all the claims referred to jl^ • * • Aeticlk X. Inca.se the tribunal llnds that (heat Britain has failed to fulfill any duty or duties as albre.said, and docs not award a sum in {jros. the high contractiiifj parties agree that a boai'd of asses.sors shall be appointed to a.sccrtain and determine what claims are valid, anil what amount or m ^ I INTKKPHKTATION AM) SCOPK MK THK CONVKNTIO.V. .'U iinuHintssliiill Im paid liy (Jieuf Britain totlic Uiiitt'il tStates 1)11 iM'coiiiit of tlit^ liability ari.Hiii<; IVdiu sikIi I'ailuri', im to idvli nss(l,\u-von\h\ti to tlie<'.\tiMitot'su('ii liai>ility as decided l>y tlu' arbitrators. • • • Tlic iiu'iiibei's tlicreol'sliall subscribe a Holetnii declaration that tliey will impartially and (■arctuliy exaniiiie and decide, to tlic licst of tlicir .iii(l<>n)eiit and actiording to justice and eijuity, all nuitters submitted to tlieni, and shall I'ortliwitli proceed, under such rules and rc" the iiiiestions to he siihinitted to the Arbitrators. ('I'iiis will lie foinnl in Appendix No. 1 hereto.) l'a«i' lOo. Tile coiifennent of jurisdiction was certaiiilv iiroad eiioujih to cover national ehiiins in the case, Imt liefore the lieaiinj^s of the(ieiieva .\rl»itration were opened, and as soon as tiie iVinerican case was pre- sented, (Jreat l$ritain intiniate(l the ])in'pose of that ({overnineiit to with(h'aw from the arbitration, on tiie iiToiind that the national claims were not properly lu'fore it; and then by the assent of the I'nited States tiie arbitration was saved by an order eliminatinji' the national cdaims of the Tinted States from the proto- col, (Jreat Hritaiii holding' that the tribunal had no jurisdiction in the jireniises. (See IVotocols I, HI and its Annex, V, \'I, and VII, Papers |{elatin<>- to the Treaty of Washinjfton, Vol. 4.)* Thu Hritisli coiinsfl inMisteil, too, thattliu only shipH wliich apiieaiiitl iu the procejidiuKs of thu High .loint (JoiiiiiiiNHiou weiu the I'lorida, '^^■Mi mm 32 INTKHPm;TATI(»N AM> WCOrK OK TIIK CoNVKNTION. Ill tlif li^lit of tlif turcjioiii^i' !iiitli(iriti«'s mid tliis liislniv . wf if|ir(p(liici' licrc tlic <|U«'stioii iin»|i(iini(U'(l in till' (i|i|Misiii;;' l»ri( I ns t'olluws: Tlif liist (iiu'stiiiiis, flicn-loic. nrt'. Wlnit art' tin' cliiiips. iiiul ill wliiisc iK'liiilf is (ii't'iii lii'itaiii ciititk'il to I'ltiim com- lu'iisiitioii / (l'"(il. 10, \\. 14.) 'riic Jiiisw ci' tlific set down is iitfcniiitcd to Ih' , iiiid fr(»ni tli domes- tic corrcsiMiiidciifc in'twci'ii tlic cljiiiiiiints ;ind tlic ( iovcriimciit of tlu- Dominion of ( 'iiniidii — the I'liitt'd Stiifcs liii\iii^' no ili|ili>iiiiitic rcliitioiis with tluit (iov- iTiiiiit'iit — iiiid w iiicli, liy tlic wiiy, wiis never l»rou;^lit to the iitteiition of the I'nited Stiites. Alter coiisiderinj;' these iiiciins for inter] ii'etin;;' a conveiitioii which confessedly contiiins no !iiiil)i;;iiity, this conclusion is reached on those premises in the Uritish iirji'iiineiit (p. LS): It is tlieit't'ori' siiliiiiittcd tiiat tlic claims refer "d t<' re all tlic claims wliicli had liceii prcsciite;>'i"'i'if'a t Sec Itiitisli ar;;niii('iit, l'a|ioi'.s rclat- inn t" •'"' Trcalv of \Vasliiii;;toii. Vol. 11. p. L'lill. par. :f. ) And latur, uri that f^ronnil tlii' i'dmiikl'I t'orllriat itritain ilt^ilaiecl to tlic Aibitratcus "hi tlic must cNpJirit niannt'r" Ulms HunKeNtlii;; a pnipo.Ho not to In- liomid. (ir to " witlnlraw," as in the cane of the national claliim) tliat claims ill rpspcctot' vessels • * s|i«'eitl«il in the casr ot'the I'liiteil States anioiiK tlmse lor whose acts the I iiiteil States nskedtlic I'rilmnal to liold (iruat Mritalii. aic not. ill the view ol Her Majesty's (ioveriiment upeii to arKiiiiieiit or discussion ••smci- theij cini nol pniinilii he lakm into mimid- erutioii hji thr .lihiliulorxfur iiiiii iinriium irliulrrer." (Id.. p.Jtil.i INTKUPKIVl'ATION AND 8(.'0PK OF THE CONVKNTION. IIS rctcncil to the CJtuiiiniHsion in aiitl by the (Mtiivon- tioii ut' lM'l)nmry S. 1S!)6, im»l tlw "itcrsotis in wliose l)('li!ilt' (Jrciit liritain is ciititlcil to fl.iini (miiiponsa- tinii" art) tlioso s|i('ci(ically named in that convention as the persons who |»resent(Ml the elninis at Paris, iiiih'ss and except — (('norallv, as, tor in- stance, (II a niercliant ship or a wluder on the hi^^h seas, whicli woiiM have l)een coonizabh' nnder the eonveiitions ot' IS^S and ISTl. (.'i) The Award and the Findin<>s ot' tlie 'Priltunal of Arl>itration are f'onnd speciticidly referred to in this convention l»y(hite,and especially tind there speci- fied certain Findinji's of Fact: and S(t the "claims" nnist "arise" as will by tlie Award and the Findin;^s of Fact as by the Treaty; and in this award and tind- in^^s of fact so referred to as delininj; what this Com- mission shall take cojiiiizance of (a limitation in addition to that which we havi' seen attached bv the reference to tln' Treaty of ISil'J), we find our way to till' carefully prepai'i-d schedule of claims, pre])ared by (ireat Mritain and sworn to \)y the claimants, of which this Commission is uiven jurisdiction in this in(|uiry. The subject-matter of that findinji' — to whicli apt relative words and repetitions refer thron^^hout the finding, article by article — is stated in No. 1 of the Findings of Facts, and is this: Tlieso sovcral searches and seizures, wiietlier of slii])s or pMxls, iiiul the several arrests of masters and crews, respec- tively, iiieiitioiied in the scukditlk to the Hritish case, /*/». 7 ti) (id, iiirliiKirc, etc. Thus, throujihoiit err/// /iiinif)r((i)li ol the fiii(hni;'s. ill eacii one continuin;^'. as in Fiiidiiij>' 1. Thus in — 1. (d) (Questions as to the v.alue of "the SAIK vessels or their contents, or either of them, and the (piestioli as to wiiether the vessels mentione(l in the srUI'.DIM.K to tlie Hritish case, or an\ of them, were wholK' or in part the actual |M'o|iert\- of citizens," etc. (//) it beiiiL;- understood that it is "open to the Fniteil States to raise these (piestioiis or an\- of them INTKHPUETATION ANU SeO':'K Ol' THK CONVKNTION. ;5") it' tlicy tliiiik lit in any t'utiiiv iicji'ttliiit'ons as to tlic ■ iaUility of tlic I'liitt'il States ( lovcrninciit to pay thk AMOUNTS MENTIONKD IN THE SCHK1)UI-K To THE HKITISH CASE." 2. That the '"sEizinnvS aforesaid," with tlic oxccp- tionotthf I'((lli/iii(lrr si-\/A'(l at Ncah Hay, wcri' niaih', etc. 3. ((() " That ihi' saik scNcral searches and seiznres of vessels were niatk» hy iiulthc arineil vessels of the United States," etc. (/>) '"'rhat tlie alh'^ied acts or otVenses for which SAIP SEVERAL si'arches and seizures were niaih- were in each case (l(»ne (tr coimnitteii," I'tc. (r) "Tliaf tlie sAii> tines and iniprisonnients were for alU'jiccl l)reaches of the niiniicipal hiws of the Tnited States," etc. (No refereu<'e to "lines and iiii|trisoinuents" ajipears anywhere except Itetweeu pa^'es 1 to (!0, inchisixc, of tlie British case.) 4. N't* reference to the sul)ject-Miatter. ;"). "That the district courts of the rnited States in which anv proceedinjis were hail or tak«'n for the purpose of condenniinj:' any vessel .seized as men- tioned IN THE SCllEDUI.K TO THE i'ASE OF ( i KEAT UuiT- ain (pi'. 1 To (!(), inclusive) had all the jurisdictions and powers (), inclusive). ■ M i i 36 INTERPRKTATION ANU SCOPE OF THE CONVENTION. (3) '!'(» lU'teiniiiic tlu; ([Ucstioii of liability of the United States which might be raised on aceount of "whether the vessels nieiitioned in the sehediile" (pp. 1 to (>(), inclusive), or any of them, were wludly or in part the actual j»roiterty of citizens of the United States. Findinji- i, hist parajiraph, clearly points out that the (piestion tor the future ne;>()tiations of the ( Jovern- ments is onlv as to the liability of tlu^ United States "TO I'AV THE AMOUNTS MENTIONEO IN THE SCHEUri.E TO TUK UiiiTisH CASE." Article i{ of the ( 'ouventiou provides that the Commissioners shall "hear" only questions of fact ''not Jiiidid bif the 'J'rihiindl of Aih'i- frafioii," and, of course, to ascertain what was found, and what is therefore excluded from the co<>nizance of the Conmiissioners, can only be ascertained l»y the lindin<>s themselves, here aj-ain, referred to as a part of the ( "ouventiou, as has been seen. The »daims, then, referred by the Convention, are HO part of them, claims of vessels, but are "claims" on account of "persons," "arising" by the treaty, the award, AND the tindinointing' the way to the description of the particuliir claims ti> be referred, as used in Article I of the Convention, is clearly used in the sense of "li!iviiiassaf;e of erew, pas sajte of mate, jier- sonal expenses, lejial expenses, estimated sealeatcli for ISSd. to tal claimed by owner with interest at 7 i)er cent to date of pay- ment." Similar details. !:■ '! ■■- '{ Article I of the Convention names tlie elaiuis as "claims on acconnt of injnries sustained ])y jicrsoi/s." Article 111 i)rovi(les that the (Nnnmissioner shall determine, etc., in respect of "each claim," and "assess the comi»ensation if anv to be i)aid on account tliereof." Article Vlll uses this lan<>iia<>e: "The amount awarded to Great Britain under this Convention nn (icctiiint of (iii/f chiiiiHdit shall Ihj paid," etc. Turnin;^' n(»\v to the schedide of claims of persons presented before the Paris Tribunal, foiuid by the iindinji', anil of the persons who presented them as claimants, the follo\vin<;- is tlu^ li.st and the nature of the claim of each, as set out in "schedule (i)p. 1 to 60, inclusive) of the British ca.se." The details are omitt«'d of the several items that {•o to make uj) the claims, excei)t in one case, which is used for illustration of every other claim. The amounts are omitted because the findin<>s did not pass on amounts, ansof fact, or the Convention, lleiice, 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 IWtish arj)ositiou: Tlii'rc an' tiro ddsscs of '^ persons" (iiiioiif/ flirsi' clnhit- aiif,'^, irlio, liji flic svtflril nmJ (ulJHdicnted priiiciph's of iiifrriKitioiiiil liiir, (I IT not ^'jirrsoiis in ir/iosr hcliiilf (iiriif Ihita'ni IS entitled to claim conqiensation from the, United Statesr These are: (1) ( )riginal sul)jects of Great Hritain still owing that nation a ([ualified allegiance (in respect of sov- ereignty and certain exterritoriid laws), Imt who by domicile in the liiited States, without naturalization, owt' allegiance to the sovereign claims of the United States and olx'diciice to their numicii)al laws. (■J) Citizens of the United States, alleged to have Ix'cu domiciled in Great Hritain, who had not become natui'alized in (ireat Hritain, l)iit who owed allegiance to the I'nited States, obedience to the jurisdiction asserted by the authorities of its sovereignty — execu- tive, legislative, and judicial — and obedi«'nce to their exterritorial laws. And of these in their oriler. (ONK.) CLAIM.\.NTS WHO WKKK OKIGIXAI. lUUTISlI KUIUKCTS, Iirr DOMICILED IN iiii: uxited .statks. in respect of some of the schooners, there are two owners in this class, as to one of whom there mav bo ! ■* : H CLAIMANTS HIUTISU, IJOMICILKI) IX irMTKl) STATES. (loiilit, liut ill n'S|icct of ;ill cliiiiiis presented in lieluili' .f 77/ mil IIS II. ( iKifiir, iis I >\\ner, tlie tiict of his doiii cile ill the I'liited Stiites is coiichisive iiiijiiiist them. 'The British iU'^iiiiient iissiiiiies (p. 3S-31I), iind es|ieciiilly troiii the h'tter ritaiii iiiiL'ht |ireseiit chiinis under the ("onveii- tioii, was a means of enlarjiemeiit of jurisdiction rather than of limitation. As a matter of tact, that (h'scrip- tion was ehminated, tor the reason that its use, and the similar use of terms ini|>ortiiiji' the orijiinal citizeii- shiji of a chiimant, had in all prior ( "oiiveiitioiis heeii productive of much emharra.ssmeiit to the Commis- sioners. K'unniiig throuiih the |trocei'dini;s of the .Mixed ( 'oiiimissions of 1 S,")3 and 1S71 it will he seen that claims wi-re coiistantK' presented in l)ehalf of persons who were technically IJritish suitjects, liecause never natiirali/ed in this country, and yet who had estalj- lishe(l leu;al domiciles in the Inited States. The same ditliculty had arisen under all tli<' other Mixeil ( "ommissioiis which ha\c heeii het'ore referred to. In such cases it was insisteil on the one side that such a description ot' persons could not he elimiuateii from the coiix'eiitioii, altlioui;li at the same time it would lie admitted that a person h'lsally domiciled in a coniitr\' at the time his claim arose, tlioiii;li not naturalized, could not recover apiiiist the countr\' of his domicile, liefore such commissions, or against aii\" other countrx . 1)\' \ irtiie of his original citizeiisliip of the country of his orii;iiial allegiance I'mler the Mixed ('oniinissioii of IS"),'! the term ■■ Uritish suliject" was in such case eliminated from the convention. l>y construction, 1»\ the British iim|iire, liates. in the l.diiidiif's case: the umpire holdiiii;' that It s II 41 •fTwmmimmmi 42 CLAIMANTS — HKITI8II, DOMICILKI) IN UNITED STATES. tlu' ti'i'iii " liritisli siil»j(M't," iiltliou<4li (•(•rrcctly dt'scril)- iii<>' the |)i»liti('iil status ottlu' cliiiiiiiiiit.was not intended l»v the ctrnvi'iitioii of ISAS to lueiiii tliiit a Hritisli siih- ject domiciled, tlioiiji'li not iiiituiidized, in Mexico, and wlio liad thus heconie civilly subject to the laws and the sovereijiiity of that country in its foreinn rela- tions with countries other than (Jreat Britain, could ni'ii'e his political status, of orijj'inal alle' lt\' his statement ot' claim that he was a resident of the Tnited States, and therefore ilomi- cile(l there) that the demurrer nuist he overruled on the uround that liarclav was a "British sui)ject" within the lau^uai;!' of the* ("onveiition: hut in that case it clearlv aiipeared, as stron^K' urL;ed l)y the Britisii c(»unseK in point III of his hrief, that the claimant Bar<-Ia\- had, while domiciled in the I'uiteil States, lieen as "faithful to the I'nited States as any loyal citizen," the principle l)eiu;i' that he had heen loyal to the s()verei): (I) A person's presence in a country is piesuniptivc evi- dence (if domicile. (U) When a [mtsoii is known to Intve had ;i domicile in a ^iven country, he is presumed, in absence of proof of a elian{;e. to retain such domicile. (.'!) Itesidcncc in a country is jiriiiKt fitcir evidence of tlie intention to reside tlieie permanently {(iiiiiiiiis iiKitieinli). and in so far evidence of domicile. See cases, and see Sir \\ . Scoti, so often (pioted on this suhject: "Time is the i^rand ingredient in con- stitutinji' domicile." (The Harmony, ISOO. 2 C. Kol)., 43 S( 'c I Mcey, p. 137, note.) " U'esideiice is jtiiiiiti ./f/r/'c t'\ idiMice of domiciU', (Sir Sherston Maker's llalleck, Vol. I. p. 421.) mf^mm^ 44 CLABrANTS — IlliiriSII, DoMICILKl) IN INITKD STATKs. I'liilliiiiort' oil Domicile, jiiij;*' 14. 44,"».) To tile siinie etl'ert see "I'lir IikIkiii Cliirf," K'ol). Adni. l{e|iorts. ."i-li*. ;ind colleetitiii ot' niithorities, and leir iin;il\sis in iiowiiiij' the 1); inn lifit isll jllK w 1 A leiitoii, see. '7 .SYY, 7- inericnn iiiitlionties in luirnioii\ 111 I I >iiine\- veliort (ii. ;U9) (loiiiieile is (U tilled d witli iis '•resiueiice jit ii |inrtieii!iir |diiee iieeoni|iiinie( ]tositi\(' or iiresiini|)ti\ e proof of eontinuinj:' there foi" iiii uiiliiiiited til lie Tl le loiilciil liosi tioiis of ( Jrent Hritiiin iis to ( oouer ;ire tin-se: (ii) 'V\\;\\ liis o\vnei'slii|) of tlie vessels seized imist lie taken as eoiiehisiv c, (In tliis vvc fiilh a^iree, hut on otjief and distinct ^ironnds from those taken hv (Jreat Britain.) {Ii) That alrhoiiuh domiciletj in the riiite(| States since l)o\ liood. and for iiearh half a ceiitiirx , hecause lie was not iiatura lized. and hecaiisi- lie was an oriiii- iial tin siiltject. lie con Id, iiiidei' the iiiiinici|ial It a IJritish reiiistrv for laws of (ireat Uritain, take oi his ships, and ])iit them under the Uritish tlau'. (r) 'I'liat so domiciled, hv virtue of such ren'istiy and tlaji' alone, in direct violation (»f the muiiiciital laws CI-.\IMANT8 — HIMTISII, DO.MICIM'.l) IN IMTKD STATEH. 45 (it'tlii llnitcil Stiiti'sut' cxtfrritiirijil t'urct', mid in direct \iipliitioii tit' tlicir criiniiiid stiitiitcs, idsu ut' cxtcrri- tdi'iid furcc, iiml in direct detiiinee tit' tlie niitinnsd cliiiiii iiiid iissertitin t»t' jurisdietitni Dver tlie seidin;:' w liters i(t' lieriii;;' Seii (ii sovereij^n cliiini iiiiule iiiitliiiri- tiitivfly l)y iill tlie l)ninelies i»t' tlie < J.iveniiiieiit) lie fiilllil semi liis N'essels tt> liike sejils iii ijiiise Wiitei's. ('/) Tlmt etinciirreiitly with his, tlie vessels ut' ( 'iiti|ter',s lu'ijihltttfs in Sim Fninfiseii, wIid were niitivf- htd'M citizens ttt' the rnitetl Stiitfs. |irtitecte(l iiniiHU'e tiiiin hiniselt' liy the liiwsot' the Initeil Stiites, hiiviii^' lieeii sent 1)\ theiii ti) tiike seiils in the siiine wiitel's. iiiii\ Ite seized iiiid ctinileiiinetl. innler thitse liiws, while lit the sinne time their tiwners, his iiei^ihlturs iiiiil t'ellt>w-citi/,ens tit' thirty-li\c yeiirs, witness his llcets ji'ii iiiitl ciiiiie, iind tiike seiils with ini|uniity. (' ) 'riiat it' in these circiiiMstiinces the liiitetl Stiites eiit'tirceij the liiw alike iintl with e<|niil Inintl n|itin the |prii|iei-t\ tit' nil their citizens tit' Sun Kranciscn, he he II citizen liy thnnicile tir like his nei rhhtirs i>v nii- tivit\' tir iiiitnridiziititin, thiit ('tMiper. Ii, reiistm tit' his tiri^iiiid |itilitic;d idleyiniice lUitl hy haxinii' put hi> vessels in a Ih'itish re^iistry tinti iinilei- a British Hau'. is a perstin mi acctunit ut' whoiii. ttir these neiialties that he has siitVeretl, and while still retiiiniiiL;' his Anier- ican dtiniicile. < ireat Itritain can claim ctim|iensatitin Irtim the Cniteil States. \\ I' atlirm that mi sncli nitinstrtms ihictrine can lie tdlerated I'tir a iiKinient. In sncli circmnstances the citizen 1»\- dtiniicile (t'nr tliat is wliiit he is) can tnit lay aside his character as a "natitmar" ut" the I'niteil States whenever he sees tit tti ilet'y the same stiverei^^iity ami the same laws that pi'titect him, iiy iissertinjj;' his tirij;iniil ptilitical alleiiiance ami the tact that he has mit "tine thrtuiyh the t'tirm of niituralization. Mucli less can he call U|)tin the ctiuntry ut" his 46 CliAIMANI'H — nUITISII, |H».\II(I1,KI> IN I NlTKl) STATKS. ori^'iiiiil iiJIc^iiiMn- to iiiiikc rccliiiiiatioii tor liiiii ti<;'iiiiist tlic iiiitidi) lit' liis iictiiiil iillf;>'iiiiicc tor wliiit iic llil^ sutVcnil tor violiitioii ot tlic Inttcr's liiws. \Vt' (iiiotf tVom tlic liiii;iii!i;i(' of SciTctiirv I'isli, in liis Iftt.T to Mr. IJiicliill.T of April s, l,s74'(2 Wliiir- toil' Ir wiiiihl lit' a iiiiiii.strdiis doctiiiie, wliirli tills (iovci'iiiiiciit wiiulii iiiit toit'rat*- lor a iiiiiini'iit, that a <-ili/*-ii nt' tlio I 'iiited States will) nii;i'lil (Uhmii liiinst'lt' inJiiriMl liy tiie autliorities ol' tlio I'liitt'd Siatt's ((iiild. Iiy traiist'eiiiiiK his iilli'^jiniico to aiKitlitT powtT. «'r iipun that jiowcr th*> ri^^ht to iiii|iiii'i' into the h'fjality ot the procei'dinns liy which lie may have Ix't'ii iiijuri'tl whilf a litl/eii. |)i^., sec. '-'iri), till' iiriiifiplt' iiivolvtM I'rott'ctitiii can not lie invoked liv domiciled t or- ciiiiicrs, except for discriiiiiiiiitioii and a; liitrarx' acts "as distiii;;iiislied from penalties ami piinislmieiits inciiri'ed li\ the infraction of tlie laws of tlie coiinti\ within whose pin themselves." authorities.) .\nd I Kent, character." diet ion the siill'erers ive ilaceil (•_* Wharton's Di^'., .sec. IHIt. p. 4;i-l, and rd: " Domicile is the test of national Lord Stowell (I hod. .\dm.. p. •_'-_'4, Tlir Am,): A person il in another country is to he taken as a salijeet of saeh country. * * * Hr run not lahc Kilninlinic (if bath rhtiniclirs nl tlic same lime. Hlniitschli (Int. Law codified, sec. 3;>1): Certain persons may, in rare iiistaiiei's, ho uialer the juris diction of two diHereiit States or evtMi a creator numher of Stales. Ill iiixr Hiil*'iic(S(ir Iiih leHidtuice lov Mil iiidfliiiitt' lu'iiod, it Ixh'oiiu'h iiiHtuiitly his phicc of doiiii- cili', • * * It is \v«>il known thitt liiiiKlriMls (if tli(tiiHaii;iuncc to tliis (iovi'miiK'nt. Wliat woidd Im tlie (ioinlitioii of tliis country and its (iov I'i'iniM'iit it' tiic sovereigns of I'liiropc, fioiii wlios<> doiiiiiiionM liicy liavc ciiii^iratcd. w(m<^ supjiosed t: Such domiciled citizen • * • is under the bonds of ;ille};iaiice to tlu' ciaintry of his residence, and if lie breaks them, incurs the same penalties; he owes tiie same obedience to the i'ivil laws and must discliaific the duties they iiiiiiose (III liini. It is to lie iKitfd tliJit ill the Knszta ciisc the rij;lit was asserted lt\- tlie I'liited States to |iroteet a domi- ciled jiersoii, iiltlioii^'li iiiiiiatiiriili/ed, (tiin'nist mri/ iKilhiii v.rri/if IIk iiiiIioii uf li'ix diif/iiidl liliiiiis/tl/).* ( See id., |.. riO.").) See also .Marsliirll, ( '. .1 , in Miii'ray r. ('IkiiiiiIih/ llrl.sri/ (■_* Craneli, ji. ilMi); Carlisle r. I'liited States (K; Willi., p. 147). Wharton, in his ( 'riniinal Law ^Stli edition, see. ■_'(i!l-L*sl ), (niotes I'liilliniore to the |ioint that a man can have only one allejiiaiiee, and proceeds: lint 1 must aijree with HelVter in holding;' that a mere resi- dent in a State owes for the time beiii^ ailcfiiance to such State, and may be }i|iiity of treasiui to such State if as a 47 'I'llis llistilK'til II Ih Mot ill |i lint lure, liiit. attiMitioii is cuIIimI to it In iinnoilioii with thr i|Mi'sti(>ii of orifiiiiiil allt'ginnci', coiisiilrrtKl hitcr. Ilt'ic the rnitcd Si airs is not iiHsciliiii; the ri^lit to pidtoct t'ooiici' lor Illation of till' lawH of (Irrat Uri tain, but is ilfii.vinii tlif rifjlil of (ireat liritiiin to iirotc'cl (dopor in liis (Ifliiim lion i' icihIcis conirorl to its I'lKMllicS, Colibi'tt. I'nr instiMK'c, when in tlio tnit(' \\ bd: Mis. .\lc\amlrr's ( 'ott oil. .. 117: NCC. (IS; .M CllUS orlc\ s ( 'r. Int. I. I\\, sec li.ck's lilt I--'. i;<. II: ■2 I \('iit's ( 'on ori;;iiial alle- iliaiH'e, in an\ i-ase; ami in c.ise (d wai'. e\ coiintrv ol Ins on;^in ell it the le^iaiice is lielli^^crelit, the n^ATMANTS iSWniSIi, DOMICII.KI) IN I'MTEI) 8TATKS rdiiiiti'v lit Ilis l(M';il ;illcL;i;inc(' liciiiL;' ncutriil, iii;i\' iiitci'Nciic to )(rot('ct liiiii ;is ;i uciilrnl ms ;iu;iiiisf tin- ciiiiiitrx' ol Ilis (iri;^'iii;il jillcii'ljincc: Iml umr, cnii in lliiil <(lsi\ ij III' IhIs Iii'cii tfili/l// III' III/ III! Imsli/r In tlir ' iiiii/fri/ III Ilis iirii/iiKil iilli'iiiinirr.* W hilt v\'^]\t of pnifcctiitii nr rccliiiiiarioii rciiuiiiis to tlic imtiidi nf (irij4'iui)l Milcni.-iucc ;i^;iiiist the ii;iti<• the suhjcct ol the tanner so i|c.i;ii('ili;itcil hilt not ii;itiir;ih/.c(l in tlic Inttcr.' 'rhcr<' is no conHict ol' ;uitlioi-it\' iii iiil('rn;ition;il l,iu on this suhjcct, iUid the strictest riih- iiiijiinst the (•(luiiiry of (hmiicih' in iMMtr ol' ihc ujition of oriuiniil ;illci^i;incc is liiiil (hiwti ii\ I l;ill (see. ST. nil. 21 M -■_'!•'_'), 49 siiiijicis iinii Diiirr i>iiniu' imiiniiiiiiiK, the iirohrnon ol liic sliitc iiikI tlic jlintii-r ol' till' coiirls sliiill iir iilfhrilril riiHillljl. illld tliiit iM)iii|)i'iisiiti()ii sliall 1)(' iiiiidi' if the coiii'ts iVoiii rdi'iiip- lidii or iHt'JiHlit'c or otlier like iiaiiscs arc 'lils and subject to certain obligations, which latter character is the civil status or con dition of the indi\'idnal. and nniy be <|nito ditl'erent from his l>oliti<-al stains. The political status may dejM'nd tin ditVerent liar ilifYcnitt niiiiifrics^ irlitrcKs tlx i-iril sliitiis is i/ori '-iiiil 11.1/ I'll iilir KilK, lie inhh-ijilr, iKiiiii-li/, that (if iln irliirli ,'.v till' rvitiriiiil rstillili.sllcil lilj lillC Jiir (III- jnirjiDHi <;/ ilcli III ill! Ill/ riril .sill I Its. Hilt this siil)jc('t will lie ('(itisii wlicii we (•(line to tlic status u licrcil ItU'l I iiiiM'c (!ircctl\' '•iti/.cii- l('"('il til l\C liccll iloiuicllcil 111 \t', n {lilt) ■II. 1)1). ;) 3-(;(i Tlic cases cite! in tlic liritisli aruiiiiU'iit ^iiliicct of (idiiiicilc (p. .').■{), serve to iljiistrat ntaiii oil the e the priiicii lie. til ■ >, 1 t was (ieriiled: (1 ) 'I'lnit 111 •_* Kiiaii|i. I'. ( I )riiiimioiiil was a Uritisli siiliject: ('_*) tliat lie doiiiiciled in I'Vaiicc: (,'{) tliat under a treat\ ji wa> \i(lin ish sllli|ect U ( 'o( 11 Ml' jireciselv the >aiiic as there liehl as to I )niniiiionil iiid France, thus: (1 i That he is a liritisli siiliject li\ (■1) that ill orminal alleniaiici II. M'uniiiioiHl \\a> till' tune ol the allcL;ed lllinrx lie was ijoliilelleii III III till \n: ir|iurl ( 1' l\ii:lp|i. I'. < '. ,'il I will In- riilinil nlniiliU l.<)lilillt;> lM{ii:ill,v Nti'dii;; ii;,Miii>t tlir < l.iiiii in lii'liiiH' cil' ( 'iiii|ii'r. In l.< it iK lic'lil tlial II •III {Miiiitii l|MlSC'il 111' liritisli SIllljl'I'tH I'XlHlillU t'iiii>i;.'ii roiiiiti'V li.\ till' liitli'i'H iissrnt niii>t lif lii'lil til lii' :i I'liri'iKii I or |iiir.'itiiiii. CLAIMANTS — lUilTISIl. DoMII'Il.r.li IN ITNITKD STATES. 51 iiii' I'liitcd Stntcs; (,"')) tliiil umlcr ;i trriity ])n>\ iiliiii;- iir (■(iinpciisiitinii tiir iiiiurics tn ix I'sulis Inr wllulll (ifciit l>i'it;nii IS ciititlcil to make rcclaiiialiiui ai^T'iisi the Initril States, reclaiiiaticiii eau m.' lie made t'ltr doner liecaiise iit his (lnmieile ii (l< tiie r liiit tlie adileil nlijectiun in ( was eiiLiati'ed in \ iolatiiii;' tlie .■Mi\('rei;.;iit\ nt' his domieile. oojier s case is iiited State; tliat 1 aw: ami ilelNKi'i' iSiit the whole (|iiestioii as to aii\' claimant standiiiu ('oojier is not oid\' concluded aiiainst III till' IOCS ( 11 tireat iiritaiii 1)V III e niles ol mteriialional law , lint h\ fh'' t reat\ lietwi'cn the nation .f .liiK ;i, isi; as lolloW; Tl ic iiiliahitaiits of tiic two coinitrics, rcsiicctixt'ly, slial liavf liberty Iri'cly and sciaircly to ciunc with Micii sliiiisaiid (■ irj;ocslo ;ill siicli places, ])orts, and rivers, in the lenitorius al'oresaid, to which other l'orei;;iiers are |ieniiilled to conie, lo enter into I lie saiiii', and to niiKilii iiro\ ided in this treatw and eiijox ini;' comiilete prole lion and secnritv III theii- laws, lnit snliject to their laws and -latiites. as |irii\iileil ,-nid >ti]iiilated in the lreat\', tireat liiitain can make reclamalioii mi account of aiiv such siili'iect lor injuries siiriei-ed at the hands of the I'nited Stales while ill tile act ol' \ iolaliliu' iliose laws and statutes, more e>|ieclall\- when siich -latntes are in the nature ol' regulations of trade and commerce of exterritorial effect. direclK a|i|ilicalile to all citi/.eiis of the I'nited Stales e\cr\\vh, .e and ■'all jiersoiis." I'lcaticf* .iiiil ( 'oiiM'iitiiiiiH IjriWL'i'ii tlir riillcil Sliitrfl mill other I'ciwcrs ( |>. lie. fit. issni. mmmmm C'LAl.VANTS liiariMl. lii).Ml(ILr.l) IN IMTKIJ STATES. 1 11 piiiiit iiinlcr this trc;it\' is tlic oiiiiiidu of tin ( (llllllllSMlill lor tlic scttlclllcllt ut' clilillis l)Ct wccll the I'liitcd St;itcs jiinl ( iicnt llritniii iiinlcr tlic (•(Hi\cnt t' In."),') (|i]i. ,'!,')(I-,'>.">7 ), 1111(1 iilso citcil in Hiircl;! loll o CilSC uiulci the ( olUllllssloll o 1S71. I''iiuill\ . ;is to the ( 'oo|icr chiss ot' chiiiiis. tlic loLii cal ]iositioii of ( ircat liritiiiii is: (") 'That iimlcr the rules of iiitcriiatioiial law aiK the ireatx Isjo iniiiatii rali/,e(i Itritish sill je.-l- lei;all\ iloinicileil in the I'liited States are eiilitled ti tl ic |irotcctioii ot the laws e(|iia 11\ with A iiKTicaii citizeii>: liiir {!') T\ ie\ arc at tlic saiiic time c\ein|it ami pri\i- thai protect ihciii. aiic licxoud her tcrritor\- and jurisdiction. tl es iK'causc tlic\' ma\ (ianii i\ Jirit; and not to the I'nitcMl Stati protection atzaiiist them as IJritisli sultjccts. It is not Iriie, and l''iore enijiliaticjillv deiioiiiK the extension ot' such protection as is liei-c claimcij 1 (Ireat llritain in this class of cases in his Xoiixcaii l>roit international I'liMic. I.oi;!: "The protection is illicit and iiiiiustilialile when its ohject is to confer a pri\ilc;i-ed po>itioii upon the suhjccts or citizens (Nat lonauN > roiihn l;' ahroail { ooper w ot tlll-S( \C>S( a-, at the t line lie liecamc tile Ici^ai owner and at the time ol tne seizures (iiioail the I lilted ."smres. and m their relations to him a^ auaiiist (ireat liiitain. an .\mericaii citizen, and a- such his ship ill > s we >iiall see. were enntlcil to carr\ no I la- 1 lilt that ol tl niieil Mates, and were w- i evcii ciititicij to hriU-ii reui^trx . There remaiii- to ln'coii-idered in cases like( 'oopei'> tile position t.ikcii ill li.e liriii-h ar;^uinciit. which, we take the lilieri\ io I'liM i-\c, >|i(inld carrx it^. ow n rdii- Cl.AI.MANTs { ITl/.KNS Ol' TlIK INI'lED STATKS. i)5 (T\V( ).) Till'. CLAIMANTS WHO WKl.'K (iWKllNAl- CITIZl.Ns OF THE rMTKD sTAiiis. NAin r. i!oi;n oi; naitwali/.kh, ai' tiik TIMK or IIIK Al.l.Klil'.n IN.M'UIKS. Itl T XO T AT I'llAT TIMK NArri;Ai,i/i;i> in (umiat i;i."iiain rNnr.i; thk natiijai,- I/.ATION ri.'KATV OI' ISTII, I.VKN" IF DOMICII-KD IN CK'KAT lil.'ri'AIN, AUI. N0|\ CNDKI; this CoNVKNIION. I'KKSONS "IX WIIOSK llKll.MJ' (MtKAT MK'ITAIN IS KNTII'Ll-.l) To CLAIM COMI'KNSAl'ioN FKOM THE CNITEI) STATES." In the lirst iiliicc, tlic liunl ell IS 1 iiioii ( irciit Fritiiiii t( liow that tlii iiiiiaiits ai'( Slid I ii('rsoii> am I if it "I'l" were true thai Ic^al iloiiiicilf would ,ui\t' tlinii tlici AllSWi T til nct'(i( ■d status, rill' record I'ails to disclose tl i|iii'i-.Nii. 1, nroo j' 1 Or, (it doinicnc witiiiii llic rules oi evidence in interiia- rioiia 1 h w. lint conce(liim' tor tlie |)iir|iose of this ar^iiineiit that tl lese claniiaut-i had a .1 OlUICl le in ( ireat iJrit; nil. there is no aiitliorit\ whatever to sustain the |iosirion lit that nation that it can in their hehalf. in the condi- tions here iireseiited, make reclamation iif/dii/st the ration, that under coincnrioiis of this kind, in terms for the adjustment of |iri\ate caims, like all the coii- scntiiins on claims e\er entered into, in some way or other "tln' tlaj;' and the reuistc i'" of a ship are to carry not iiuK' con(dusi\-e e\ideiice of the natioiialitx ot' the (iwner ill the .mmisc, not only of political citizenshi|i hut ot' domicile, and are also to carr\' lliat conclusive |iresumprioii. nor onl\' oil rlie hi;^li seas, liiit into this inrernational court. r»iit as this aruiimeiit applies as \v(dl to the (daims presented in lielialf of .\merican citizens, iiati\c Imrn and naturali/ed, allei^'eil to he domiciled in (ireat liritain, it will l)e treated umh-r a suhseipieiit ca|ition. (See pp. (16 to S,").j ti'S' '!*. tit M'q. ^f mff 54 CLAIMANTS ( ITIZKXS OK Till-; IJNITHl) STATES. Uii'itctI Shifcs, nil 'fit is .s//// flicir roiiiilr// of jui/itlcnl Illllfl'lltllCf. The aiitlioritit's iirc nil tlic ntiicr wax. I)ct'(irc prdcciMliiio' t(, (•if(i fliciii, it is proposed to l)rictly iiniilyzc the autlioritics cited in the iJritish arjiUiiieiit, conmieiiciiiii' at pauc oO. {ii , Tile citatinii tVoiii N'attel is the perfectK' ■iettled liciu'fal doctrine that a toreii:ii('r | well lassiiii. tlirf ( I! ot I lood nation I'jiiijaiid was at w.ir. ma ke is that tl lie only commeni we lis was not a case where an American citi/Ceii, iiunatiirali/.eil aliroad and owiny' ori<;Miial alle- h ' 'I CLAIMANTS riTIZENS or THE IIMTKD STATES. 57 liiiiiicc to the I'liitcd Stiitcs, wms iiinkiii' (ireat Britain's laws, and (daim of jurisdiction, tlu^ case would he in ])oiiit. But takinji' this case for illustration of the whole class offered, let us carry it a step further and it will be seen how misleadinji' it is to cite cases "■cnerall\- to a point wliitdi is not covered or approache- (hiiiiiciliated persons, in certain waters claimed by the British sovereign as jiirisdi(!- B s 8 41 i,: Tt Mf ■■p 5H CLAIMANTS — CITIZENS OK THE LTNITED STATES. tioiiiil iit tlif time of tlic injuries; iissumc tliat iictsuf I'lirliiiiiit'iir iiJid Ix'cii pfisscd t'orhiddiiijiiiiKlcr pfiifdtics idl |)crs()iis troll I iloiii;^cfrtiiiii nets in those Uiitcrs/iiiid tliiit ill |iiirsii;iiic<' (it' tile iiiw the s(i\-ereii;ii iillthoritv ot'(ireiit Uritiiiii (•(iiimiitted the injuries e(iiii|diiiiied of: and. linidix , assinne tiiat the ease het'ore tlie court liad l)eeii whether I )riiiniiiond. thoiiyli a Hritisli sidi- jeet, lieeaiise (if his (hanieih' ill I'Vanee e( add throiijiii Kraiiee make reeliunatioii from (ireat Britain tor the hiss dl' his \csscls whih' xiohttiiij:' the elaim of juris- diction and the |ieiiai hiws of his own country. It is (il(\i(His tiiat tile deeisi(ai must ha\c lieeii aiiiiiiist tlie British sidiject, liowcNcr hniL;' domiciled ill France. (//) 'I'he ('oiintess (if ('(Hiway's ( 'ase was a (daiiii for coinjiensatidn aiiaiiist l''rance. under the same treatv as in Drummond'.s case (2 Kiia)i|», l\(>~t). The ('oiintess was not a British siiliject, nor domiciled there, and if she luul Iteeii it did not a)i|iear that the claim wast'oi' injuries siistaineil iiy liei' while en,i;a,iicd ill hostile acts ai:ainst I'Vance (the c(iuntr\' of her oriii'inal alle miles wide, and i:!() to I Id niihs lonj;. and under that claim Her llritaniiic .Ma.jest.v's cruiser seized the hcliooiier H tiHliitiiiton, llvinj; the American Ihi};, for lishiii); in that ba.y. i.See decisi(m of liritish I'miiire ajfainst Great llritain, >lixed t oniniis- sion cases, under Convcntiiui of \K>',i, p. 170. iii/'ivi. p. lOH.) CLAIMANTS rlTI/ENs Ol' THK UNlTKIi STA'l'KS. "»lt a<{!iinst S|)iiiii, the coimtrv of orijiiiwil fillt'tinj;' to (dmh- the jurisdiction ot' the I'liited States tdainied 1)\ that (lovcrnnieiit in tlie waters where tlieir |a'o|iert\ was taken in tliat act.' It is to l)eol)served tliat tliere is no (juestioii wliat- ever as to tliis |)ro|)ositioii : 'Tliat tlut |)rovisions ot' the Ke\ised Statutes of the I'nited States, sections 111.")!), etc., were ludd 1)\' the courts of the I'liited States, which as the Paris .\ward finds were courts "haviiiii' all the jurisdiction and powers of courts ofi'''"'l"'S ^'."- I J 1 ii r 1 s admiralty." to he statutes apiilyitiL;- to tlie place of Award. seizure in the waters of Bering' Sea, and that all the soverei^'ii authorities of the I'liited States assei'tiMl tlie jurisdiction to execute those statutes in those waters.* ''""lins !• ^loreover, that whether the I'liited States had juristnction <^r not, those statutes l)\- their construction in terms and l»y all the canons ot' statutor\- construc- tion, had, as to I'liited States citizens, an e.xteri'itorial effect; and furthermore, were penal statutes for the pi'otectioii of a trade. In the arjiumeut submitted het'ore the Paris Trihu- nal tlio counsel of (Jreat Britain, at the head of whom * TL« iissertion of sovcioif^iity over teiritorv. ami in all caNcs of dis- pute as t(i. jurisdiction contcHtt'd liy otlier nations usts witli tins Kxi'iu- tive branch of the (Jovcrninent. See Wliart. Dig., sec. 21.' and cases. ^ ^ ^ ^'•^^o. IMAGE EVALUATION TEST TARGET (MT-3) 1.0 1.1 ■a 12.8 itt 11,2 2.2 IK lU u 140 2.0 m i ^ N^ Ii4 ^^^B lllls:^^ llnl^^s < 6" ^ fliotographic Sciences Corporation 23 WIST MAIN STRiiT WIRSTIR.N.Y. 14SM (716) t73-4S03 5r \ S ^ }\\y''}i\n'rWn' (JO CLAIMANTS — ClTI/.liNS <»l' IIIK UMTKD 8TATKS. stoixl tilt' pn-sfiit Ltinl Cliirf .Iiistici* of Kn<;-|jiii|iiisiti only ri^lit of |troti'(;tioii «)f tlsliin^ iiiid otIiiM- tV*>f swiiniiiiiiK aiiinials in tlirliiiih MfiinwUu-h can bt> «'\«>ri'is(Ml l>y any Stair (apart iVoni coMVi'ntion) ix om lujahmt itn oirii iititioiitilH. It may Im> in the interoHt of coinnicrcc nd tlu' tisliini; intlustry ol' the nation that all its tishtTinen alik«> shonhl he uiailf to ri'spt'ct a close time, even tor niip-atory lislies. aiul even in tln^ (leep sea. A Static lias a ri};ht to le^iHlate tor its own snlijects on the liitjh seas. ( Vol. 10. C. S. Keprint. p. .«>.) Ami iiiiiiiii ill tlic IJritisli rniiiitfr case (\'ul. \'MI, p. S.^): In connection with this braiieli of the subject, vi/, the scope anjiils,iO\{\ the Hulijects of other initions whose persons m- )iro|ierty may l)c within its territorial. juristlictiun. .VikI it |(i power of the British Legislature |:J i->\ ■ ;i i J 1 1 '1! CLAIMANTS — crnZKNS oK THE LMTEK STATES. 6i oxteiidH, for uiih'HH tlu> words aii' so vWur tliar a rontrary coiistMKttioii can in no way lie avoided, I must |in>8nni(' that the LcKislatiirtMliil not intend to no beyond this |)ower. The Itnrx of (hr»t llritaiii iifl'vct lirr oini suhjiHn rrrri/- wheiT—foiritiiicrit onltj irhfii irilhin hvr oirnjurmlirtion. And ill tlu' I'liiti'il States tlif niK- «tt" iiittM-iiiitiniiiil law, always licM, is tliat tin- inuiiiripai laws of a nation extend oxer all citizens and sniijerts everxwliere on the earth. (The Ajiollon, ;) Wheat.. .'«;•_': Ilmlson r. (^nestier, fi ('ranch, 241. overrnlinji' * ('ranch, "Jil.) .\nd thronjiiiont the ar<:nnient on l»otli sides l»etore tne I'aris Triltnnal, it is admitted that in so tar as these statntes ot" the rnit«'d States are concerned, tliev an* ot' an exterritorial character on their face, and the onlv contentioi\ was that, iiein^i- nnniicijtal statntes. thev. of conrse, cotdd not liind torei;iiH'rs. .\iid see 'Aheaton's conchision that every nation li .s jiM'isdictittn oxer all citizens, wherever fonnd. (I)atia's Wheat.. vV^ ll.'), 11.-..) Now, initil the joint resolution of ('onyress of the '•''', f-^'?*' I . . I . . •, I I . 1 .1 "* '"> 2-3. I inted States, in ISiiH, declarniy tiie rijilit ot expa- triation, which was shortly followeil Ity the treaty hetweeii (Jreat Mritain and the I'liitefl Slates of lS7ll, |)rovidin;.>' for n.-ttnralizatioii, it was held l)\ Itoth (Ireat Ihitain and the rnit»'d States tiiat a «"itizen conid not throw oH' his ori<>inal alh-^iiance. In the I iiited States, the inclination of the Judiciary has lH>en to follow tiie rale of tlie Kn^Iish common law. and to hold that neither a initive or naturalized citizen can throw otf his alleffiaiure without the consent of his Htate. (Kent'ti (;om., '_'41»; Story on Constitution, 111, .5, Note 1 ; Wharton's State Trials, 0"»4; Opinions of Attorneys (k'ueral, Vol. VIII, ir.7.) The doctrin<' of ori<>'iiia] al]<'<>iance remains the same in iioth «'onntries in every respect except in the case of actual and formal natin'alization. Lord Chief Justice ('o«'khurn, in his "Nationality" (paocs 214-21.5), after a full revi«'w of the whole sul>- ject, says: That "under a sound system of interiui- If I. >' 62 CLAIMANTS — CITIZENS OF THE UNITED STATES. tioiiiil law such a thin<>- as a. (l- slidpt of actual naturalization carried out by solemn and t'onnal act as the law of the particular country may re(|uire will have the effect to divest the subject of his former alle:iance (tr rights will not suttice to overnmenl under which he was born, and subject to its laws. "I'nlil tliese laws [naturalization laws] are .satisfied, the Sfjite into which a ]ierslit of protectin;^- him." (Id., p. ■_'"»/).) In the vi»-w n riji'iit bv Sir Sher.ston Maker's Halleck, Vol. 1, 20r.: Otlensi's ajjaiiist the law of u State, rvguUiting or itrohibit ituj iinji piirticular truilc, if coiniuitted by foreigner.s witliin tlic territiirial jurisdiction of another State, are not pmiisli- able by the tribunals of the State whose laws they have violated; hut if vommilteil hy its vitizenit, thtji nrv so punish ahle, HO matti-r irhi'ir conimitteil, whether within itn own liniitH, on the hiijh Hetm, or in a foreign eoinitrii, A distinction, however, must be nnulv between mere eoin- merciol reijulatioHx ))erinittiug or prohibiting a certain triule, and statutes treating a criminal olt'ense, with personal penal- ties expressly applicable to all the citizens of the State. The commercial arty may sometimes exempt him from the oi»eration of the laws of trade of his own country, but while his former allegiance continues he is liable to CLAIMANTS — CITIZENS OK I'HK UNITKI) STACKS. incur tbe peiiiilties of a L-riininal utt'i'iise ugaiiiHt bis own luiuntry, which penalties may be enforced whenever he comes witiiin tlio reacii of its municipal laws. — (Citing: Fii-lix, Dntit Int. I'rivf, sections ."ilO-.'i.JU; Anu'rican .lurist, Vol. XXil, pp. .'{Hl-'Wii; Masse, Droit ('ommercial, torn, il, sec. ;!S, ;{7«i. el sill.; Hello, Derccho luternacional, pt. I, Cap. IV, sees. 5, (i.) It need not lie ar<»iUMl that the ahsnliit*' ri<>lits of Stiit<'s, 1\ inaf at tlir t'lMiiidatioii of cvcrvtliiii"- vUv, is tlu' rijilit of si'It-pn'stTvatioii (Dana's Wlicatoii, sec. ()1), aial it woulil he a vain n^lit it' a nation could not ])roti'('t its |»nl»Iic iiropcrty a;;ainst its own citizens wlicn-vcr it and tlu'v may 1h'. Of course sucli laws ciui not be enforced iijton tiie jinsitii of a citizen if lie he l)eyond the jurisdiction, lait no one would deny the jiowerof the ^dvernnient to seize n)»on his |»ro|»erty for violation of such laws, if the |tro|ierty he found within the jurisdiction or upon the high seas. It is laiitin<>: or regidating a /«»/- tiniliir inil/ir, or regulating the laws of trade and navigation, are hinding upon the citizens of a State wherever they may Im'. In Mars' I 'rival*' Int. Law ((Sidespie Trans. Kdin- lau'gh, 'id ed., j). Mi't and notes) the undouhted rule in this case is laid down: '' 7'//r Stati- of iloiiiirili' tiHiji vjtcuil inntrrtiiiH to a lnr fniii liiiii to tlii' fount Iff ojliix (loHiirilc. ( Kept »rt of British Aj-ent, Com. '71, p. -JitT.) In the Koszta case the I'nited Stati's asserted in the .strongest possible terms the jicneral doctrine of the alle<>'iancu of a domiciled |)ers(Hi to the nation ot his domicile. * A 8.vi)'iiiii*'iir her*'. I'liit the Hritisli iir;>'uiiiciit liik«*s nil niitifc ot" tin- «'Xt'('|»tinn, wliicii we liiivc dis- ciisscd, moro stmiioly mitl ('ni|i]iiiti«-iilly Inid down liy intt-niiitionid iuitiioritics, wlicn the «|(i('sti(iu lias ftirnc lip t'lir fonsidcnitinn, than the ;>'*'ncral rule stated. As lias Iteen seen, tliat exeeptioii was not in in any of the eases eited in the Hritisli .irjiUinent here, and in tlu-iii there were no taets hrinjiin;;' the (|iiestion u|i tor eonsideratioii. Kos/ta was a nik.ive-liorn citizen of Austria, and the ri^i'ht i>f the ( loveiniiient of the I'liiteil States to ]irot«'ct iiiin was asserted a<;ainst Tiirkev — not Austria. What the |iositioiinf the I'liited Stales would have iieeii as to .\ustria is sta1«'d as follows l»y tlu' Secre- tary of Stat*-: Had Koszta been within tlie jiirisdictioii of Austria when lie was sei/i'd. thu whole character of tlie case woiihl have Im'cii ciiuii^cil, and the forcible takiii;;: of him from the le»;:al custody of Austrian oflicers could not have been d«'fcndcd on any ininciplc of munieipal or internuti"», sec. 'M'-i.) .lusepli Murns was a sailor on an .\nu>riean whale- ship, which was sunk l»y the Alahintitt. The whaler was .\iiierican, liecause she was .\iiiericaii owned, and sailed from New Hedt'ord, Mas.-. Ke then-fore. for tlii' purposes (d' protection l>v his nation, had all the rijihts of a domiciliated citi/.en, and soiiu-thin;:' more, that of ii sailor on a ship whi»"h was heyoiid (piestioii Amer- ican territi>ry. Itecause American owiumI. (See Domi- cile authorities siipid.) I lis claim was disallowefl l»y the (Jeiieva Arltitra- tioii on the Mritish sliowin;:' that he was apjtarently a ' Tint |)iiiiit r:iiii» up ilii'urtly will) Austria in Siinou riiuni^'s ijihi', iiiiil till- Aiiu'ili'iiii Seiictiiry id' Stiite, Mr. Marc.v, wlm liml kuukIiI to iiiotcct KoHxta ill Turkey. ili'uliiiL>'iini('iit iit p. TiO as tlic Wortli ciisc, aiitl pn|M'rs r('liitiiily t'ollows tliiit ({rent Ikitaiii coiiM not intervene tor tlie protection ot" and reelaniation for American citizens doinicilol in (Jreat Mritain asa<>ainst tile United States in cases wlu-re their property liad lu-en taken l»y the antliority of tlie soverei«>nty of the Unitcfl States for viohition of the municipal hnvs in (iiiestion and for th-tiance of the soverei<«n chiims of that nation. NOT NATIONAL CLAIMS. 'I'he Mritisli ar;>'nment seeks to avoid tliis <'onchi- sion, l>oth in the case of Cooper and in the case of the American <'iti/.ens aUejicd to he domicihated in ( treat Mritain, on th«' <>'round that these an* not private claims, hut national claims, in the sense that thev are to he recovered in the individual ri;>ht, so to sprak, of the (Jovi-rnment of (ireat Mritain: and it cites (p. lit) the case where China paid to the Mritish (lov- ernment ><.'{,( M»(>,(M 10 on accoiuit of deltts due to Hritisli siihjects from ••ertaiii Chinese merchants. Hence, the contention is that no defense ^-oiiiji' to the natitinal slatus of a claimant can lie mad«'. Of course, in the case stated there was no Claims ('oiiveiition and no provision in the treaty, as in this, liiiiitin;:' the recovery of t u- ih'itisli ( Joverniiieiit to the case of '•persons" oil \ hose account she mi^i'lit ' An fxitiiiiiiatiiiii of tlic iiMonl (liKclKsrH tliiit ItiiriiH, tlio Hitilnr. wim (Ic'i'fitM'il, :iiiil that IiIh c'laiiii w.ih iirrsi'i tcil liv IiIh rutlirr im his li';;iil ri'iiii'Sfiitatlvc. who nwidcd at .Miinrhrs.iT, ICiiKlniiil : Iml licfon- the Mixi'il ( iiiiiiiiissioii of 1ST! it was Ik-IiI in such a caHit that lliu ri);lit to I'tM'Over il(>]i(>iiil<-(l ii|i(>ii thit national charai trr of tho ihToascil, ami not npon that of liis adniinislrator. "I'hi! Coiiiniissionors arc all of ihiMipiiiion that thr particnlar iiation- alitv of the adininltitrator ilueN not alVi-it the iini'stion." (T, IS, rnnea XOit-L'lL'-Ltl.'i.) NOT NATIONAL CLAIMS. 67 l)«- ciititliMl to i-l)iiiii, iiixl no |ii'ovisioii for tlic aiMlitiii;;' iinil tiiitliti^j' of "ciicli" i-liiiiii. 'riui «- <|Uotc:v hi\. Tliiit Wfis ii ( 'liiinis ' 'nnveiitioii, iintl it is clenrly shown in the iinssnye (Hiot«' that they are preseiitetl a<;ainst the I'liited Stales l»y the nation heraiise tlu-re is no other way to present them; and any (Joveinment ow«'s it to tlios*- within its protection in respect ot" its ohlioatioiis to its citizens to take up their cause as a nation, and this is the en- tire doctrine ipioted from Wharton in the Hritish hrief at pa}>e 4S. ( )f cours«' it is the universal doctrine, to wlii«'li there are no e\ce|)tions, that if a citi/.eii of one nation eoin- plains of wron<>-done him Wy another nation, hisliov- ernmeiit must assume the respoiisihility of presenting ♦he claim. .V claim on hehalf of forei;.;n siiltjects of .lotlier (loveiimieiit under the estahlisheil rules of international law is not eiiMtled to consideration unless a demand is made liy the (Joxernment of tlu' country of which the claimant is a suhject or citizen. (See I'liiteil States r. hiekelman. 92 l'. S., fiiO, and •J Wharton's i)i;:\. sec. '2\-i H sii/.) This is the entire extent of (ireat Mritain's interest in the claims. I'nder all claims coiixentioiis hetween nations throu^ihout their history, the Commissioners under them have heen occiipieil for the most |iart in ' for or a-^ainst claimants on the t |in's<'iit flu' point at sonic Icii^itli iit viirioiis |tliin's in rlicir ni'irinncnt tor (jlirat Uritnin.* ■•UNITED STATUS OWNERSHIP, ' OR THE BBARINO OF THE REGISTRY AND THE FLAG ON THIS CONTRO- VERSY. 'I'll*' ciipfion "I'nitcd Stiitcs owncrsliip" is tiik<'n tVoiii tlic o|i|Mtsi'(j:- In'ift't'or ron\«-nifniT of trciitnicnt. It is not seen, liowcxcr. how jmy «|n»'stiide I>y the |»rovision of the cfiiivtiilion itself, reservin;:- to the I'liitcd States (whatsoever the tla^i'. the re;;istry. or the diu- nity) the kkiiit to iiH|uirc into owiiershi|i, es|iecially with reference to the defense resting on citi/enshi|». The denial of lialiilitv on the part of the Initcd States, it is clear, ;^iies not only to the claim like that of ('oojier. who tor the purposes of this controversy was a citizen of the I'liited States, lint to the claims of the native-liorn or naturalized American citizens who are alle;ied to have lieeii domiciled in <«reat Mritain. It would seem to he the position of dreiit Britain that the award of the arliitrators at Paris, and the jiresent <'t;nvention. which was its direct issue au'l * Sco liiiH Hi);umi'nt pp. s:!, (*4, «'t. *vi\.. iiml p. IL'7. ""'IW lli VK8»KL8 — NATIONALITY KOIXOWS OWNICKSHII'. HO(|iicl, tlid 11 wholly vain tiling in provitliu^- for tlic iiKiiiirv into citi/.ciisliiii of owners. It iH said, true, tlu' I'liited States may raise the question of lialnlitv on ownersiiip and show that the "actual" own«'rs of the seized ships were in fart Ameri- can citizens, and may till tin* entire record and occupy* the time of the Commission for monti in adducing testimony upon that point, and (ireat Ih'itain may occupy other months with counter t«'stimony, hut tliat after all is dt»ne, this is the utmost I'Xtent of the pur- pose of the provision: that iuuiiediately after the evidence shall lie closed, and the n-cord made, Itoth sides are in the same position thev were lict'ore, in this: That the rejiisfry, the tlaj>-, and so on are still a con- clusive presumption on the 'umeiit has discussed the ipU'stioiis of inter- national law under this proposition in respect of 69 ■ 1 1 irirn 70 VES«KL8 — NATIONALITY KOLI.OWrt OWNKUSIIII'. Mritisli siiltjcrtH (loiiiicilfil in tlu* t'liitfil Stntfs uiitl Aiiicriniii siihjffts iill*';;'fil to Im- (liiiiiifilcMl in (Sn>iit Itritiiiii, tin tlit' iisHnnipiion tliiit it nii^lit Im* o|M'n tu )ir;>inn»'Mt — wliicii is nnw (Ifuictl — utter cstiililisliiu;; «-iti/<-nslii|) tit' citlitT clinniftrr iis n intittt'i- iif t'iii-t, tliiit tlifi'i- i'cniiiin«-i| 11 jnritliriil tpu'stitin ns t' tit' the triliiniiil nntlcr it, iiiitl tiiis funvcntiiin it was intcmlcil tiiiit lit' injuries iis nii iiwiier antl linlilfi- in Nvliiij*' III- ill piirt tit' ii vessel. Wtirds tii' such si^jnilieiiiiee ns "i»y its citizens," in Article \'III til' the trenty of ISlfJ," ctnihl ntil even in ii ciintiiift lie set Jisitle ns li!iviii;»- iiti ineiinin;>'; iind they certiiinly can iitit lie eliiniiijiteil t'rtiin a stileiiin treaty lietweeii iiatitiiis l»y a mere tiltservation on the part tit' one tit' them that tlitise wiirtis liati ntit lieeii iliteiitiiinally iisetl (tipptisiiiy ar^iUiiieiit, p. .'{S, f't»|. JO), es|iecially as the impiiry as tti citi/.eiisliip is reserved all tliriiii;:ii the awarti, the tindin<:'s tit' tact, and this ctiiiventitiii. It was (dearly the inteiilidii (if tlidse wliti tirafteil r e tin(lin;:'s nf tact \n comdiide this tpiestion in liar- nitiiiN with the prov isidiistif Arti(de \ 1 1 1 (if the treatx' (if lS!l-_'. The present lord (diief justice tif l')n;^'lan(l drafte(l tlidse lindiii;is (if fact. (See his statement td the presi- dent (if the ( 'diirt (if Arliitratitiii, \',{ American I{e|»rint, !». ."i."i and cdiitext.) At \>n'if 4S (if the .same cdlhitpiy, he made this statement tu the arliitrattirs: Tlif liiitliiii;s tliat tlic vi-s.scis, the iianit'tt tit' wliicli appciir in till' ciisc. have liccn sci/.t'tl xvliile cxeicisin;;: a Icpil riylit wiiiilil not coiicliKle tlie liatiility of tin* Ciiiti'tl States to pay if, for instance, it turned out tliat Home of ttiose vessels were owned by eiti/ens of the United States and Niilijei't to the laws of the liiitetl States. VE8SKL8 — NATIONALITY KOI.LOWH UWNEKSHIi*. 71 Ami iifriiin, lit |)ii<;(' f}4, thin apiK'iii'H: Mr. .liiHtict* II ABi.AN (uiiu of the urliitrutorM). Whut, then, JH l(>tt tor t'litnre ncKotiiitioii ? Hir diiAiii.KS UusHEM.. The «|iioHtH)ii of ninniiiit. Ml. .liiHtitT llAiii.AN. Only of iiiiioiiiit? Mir t'UAiti.Ks KiTssKi.L. Tlif (|n(>Htion of aninunt, and a littl«> more Mian ainoiint; a <|u«stion of anioniit, H|H>akiiiK uf the matter in kfohh; a (|ueHtioii of liability aH ri'itanlH iteinx of tliat aiiioiiiit; iih, for iiiMtance, tiie i|iioHtioii of whi>tii«M' (lie rIainiaiitH |Mit forward are t'lititled to elaiin — wlH>tli«>r tlit>y ar» I'liittMl StatcH citixuiiH. .\|i!ift t'ntiii tlii' coiii'liisivi'iK -- »•' .till* tft'iitv, iiwiinl, limliiio's, ami coiivfiition. let li la- tciitativi'ly niiiMiiltTcil as an o|M'ii (|iifNtiMii nt' inrcniatitiiial law, ami this will la- finisiilci'iMl uml*T— I NATIONALITY FOLLOWS OWNERSHIP. .Vssiiiiiiiijr that rlif i|ii<'stiii(-lii(lci| liy the treaty, tin- |i<>siti(iiis of (Jrcat Britain ari' not tcnalilr in any ruiirt iiiliiiiiiist«Tin;> inti-i'iiatiiiiial law. It is riainicil tliat: dialer no priiaiph' known to the hiw of nations ciiii it la- opi-ii to tht^ Uniti'd States in tinit* of peace to iro liciiind liie llai; or ic^isttT. i ISrit. .Vrt;iiiiient. p. .'. i .Vml till- sanif tliin;:' as to tin- n';:ist('r ami the tla' the I'liited States The last otHeial eoininunieation (d'tlu' Hritish CJov- ennneiit to eoiiiplete th«' eorrespondeiice there (pioted 72 VESSELS — NATIONALITY FOLLOWS OWNEUSHIP. (til till' sultjcct is the K'tt«'r ot" Lonl .MaliiU'slmry <)[ .Iiuie 11, 1S"»S, to Lonl Niipicr (Urit. uiitl For. State Piipcrs, lS.")7-8, \\A. ;")(), p. ;").'J7), as follows: Genenil Cass ohservos, in liis note to Mr. Napier of April 10, l.S.'tS, tliat 'Ml incrcliaiit vessel upon tiie luf;li Heas is jtro tected by her national cliarat-tcr. lie who I'oreibly enters lier does so np(»n his own responsibility, rntloiihteillji. if it riMMtl nmiiiiiieM « iiatioiial rharacter to irhivli she ii not ciilitlcd, (mil is sailinji iiiiiirr Jiihc i-olors, nhv ran not he proti'vtfil Itj/ this iissinnfition of a iintiiniiilitu to wliicli iihr him no claim. •'As the iilvntity of n person nnist he ilvterniinvil hi/ theofiirvr beiirinij n pntnss for his itrrcst iiml ili'terniinnl ill the risk of sneh offiirr, sit must the niitioniil iilentiti/ of it ressel he ileter- minril itt the Iihr hnuinl to him irho, ilotthtinij the Jlitij she ilis- plitys, seitrehes her to itseertitin her trne ehitriteter. '■'There no ilonht mity be eireinnstiinees irhieh ironlil fjofnr to Moili/ji the eomplitinis it nittion ironlil hare it riijht to m it he for It riolittion of its sorereiiinttj. If the boartlin;; ottieer Inuljust jfronndsorsnsjtieion, and d»'iM)rted himself with propriety in the ])ertorinance of Ids task, doin^ no injury, aud peaceably retnrniii<; when satistied of his error, no nation would make sncli an act the subjeet of seriinis reelannttion." //()• Miijistif's llorernment [continues l,ord Malinesbury] itfiree entirelji in this rieir of the ease, itnil the iineslion, there- fore, Ineomes une soleh/ofiliseretion on the fntrt of the lioarilinij ofjteer. So that, after all, it seems fVoiii the |{iitish position the qiiestioii of ri;iht and wronj:' and ilaina^'es woidd l)e one for jutlitial in(|iiirv in the end. iJiit the discussion of' the riuht of search is, in- the way, and in the present coiniectioii, oidy academic. The - nations has l)een stated 1>\ (Jreat iSritain ;, i 111- VK8SEI.S — NATIONALITY FOIiLOWS OWNERSHIP. botort' a CHurt of iiiitioiis. as follows (( Jciu'x a Arhi- tratioii; "Mritisii Case aixl Kvi(l«'in't'," Vol. 1, |). 79): Tlu' effort of registry is to «'iititle the ship to use the Britisli flag and assume the liritish national cliaraeter. The eonditions necessary for obtainiuf; re^iistry, in the ease of a ship not already registered, are the i)roduetion to the rt'gis- trar of a (H-rtilieate by the liuilder, in a form prescribed by law, and of a declaration (also in prescribed form) lliat tlif uliip in Hrilinh oirnnl. it IK Hot tlit'iliity of tit r rvfiintror to ifuntioti or (iMirrtaiii the nccHfiivji o/ritin r tlw l)iiililii-''s rcrtijiralr or thr iinlioiis iirixiiin INDI'-B MlNIClfAl. LAW iridfiicf of thil'lllr of the iicrxoH rcfiislirrd iniiiant r. l'iff.soii, 4 Taunt, i{r>7) said: The register is not a docunu'ut i Mpiired by the law of nations as expressive of the ship's luitional character. Smith's .Mcfcaiitilo l.aw (pp. 14;{-4): No ship is required to be registered, registry only being necessary to confer privileges on that particular ship. II s 10 73 i. r. Www M 74 VES8EI.8 — NATIONALITY FOLLOWS OWJJKIiSHIP. Piirsons's .Miii'itiiiu' l^aw (Vol. 1, p. ;V.(): Tlie law is iniwilliii}; to recognize in the fa«t of registra- tion any other el)i('i(Mi(;y than tliat of iinpartingccrtain privi- leges, or to jterniit the absence of that registration to have any other etVect than merely to i»revent those privileges from attaching to the ship. Kent (Vol. HI, ]>. 14(j): Tlie registry is not a tloennient required by the law of nations. The registry acts are to be eonsiileretl as forms of local or muui(^ipal institutions for )>urposes of public ])oliey. I$iit tlic Iciidiii^i' .Vincricaii case is l>v .lusticc Storv, ill 1/) I'ct.. .")l.S-,"(4.'{, iiiiil is conclusive. (Sc«' Aiialv- sis, ii/fni. |». 7H. ) Tlif Attonu'y-(u'iuMiil of tlic L'liitcd Stati's ((itli Attonu'N -( M'licriils' Opinions, (I4'.l): The statutes do not rciiiiirr a vessel to be registered and enrolled: and Ifoiniiil by a citizen of tiie I'nited Stiites she is American i»roi)erty, and possessed of all the general rights of the jtropcrty of an .Vmerican. .\nil iit piiiic ().">■_* lie s|M'iilvs ot" tlic rijilit ot' an .Viiicr- iciin citizen to jmrcliiisi' mid own a t'orcitiii sliip, and savs : Phesliipso purchased becomes eiilitlcd to bear the Hag and receive the protection of the Inited .States. And sec Wliait. IM^-. (sec. HO. p. it!).'?), for a full review id' the ipiestion 1»\ the author sustaininji' the ])ositioii taken here (»n this (|nestion. Henry, tlie author o\' .\dmiralty .Jurisdiction and I'rocedure. in a carefully prepared letter printed in 3 Wliart. Hi;.;., sec. 410, sums up the iuternatioiiid (;()-;{, where .Mr. .lustiee Field, in deliv- ering- the judfi'inent of the ccturt, .says of ships on the iiiji'h seas: "Construetividy they constitute a portion of the territory of the nation to irliidi their oinirrs Iwlotiii" "The admiralty jurisdietion of the country of the owners of the steamer, they Iteinji' citizens of the United States, is not denied, and the steamer beino;' in navijjable waters * * * w^. hold these waters to l)e hijfh seas." Courts of admiralty administer international law, and it is a common thinh such vessels are owned 76 VESSELS NATIONALITY FOLLOWS OWNERSaiP. bv toiviyiuTs, iiiwl slmwiiiy as (looumeuUMl and ivyis- tcrcd as t"(irei;>u ships; and tlu' jiidj;iiK'Ht ot" those (•Mints tir the tith' |»assinuiscd in her true character of an enemy's ves.sel. .\Liaiii. aL!'reeiii;j;' witli llalleck, I'hillimore sa\s: lint, in general, and unless in s|)ecial circumstances, the nationui cliarat^rer of ships depends upon the residence of the owner. VK88EL8 — NATIONALITY FOLLOWS OWNERSHIP. 77 It iH only ships and cargoes engaged in the privileged and peculiar trade of a nation, under a special contract and the sanction of the government, that are considered as atl'ected by the (character of the nation. Ciiii tluTc be aiiv tltiul)t tliat jin Amcricim ship may Ik* sold t(» a Britisli sultjcrt, (»r a Ikitish sliip In* sold to ail AiDi'ricaii citizt'ii, in any part nt' the world, with- out rt'j«istratioii, or any doubt that in such a case tlie nationality of tlit* jturchasiT wouhl •iivc to the ship his charactiT and the pnttcction of his national ti;\*>: Tiu' o]iposin<>' arjiunicnt (piotcs the nicssajic of President (Irant, in ISTiJ, in the i-asc of the \"nii'iHins. I'rcsidcnt Grant docs not make the statement con- tended for in the Mr<>uinent, but says, as there (pioted: When, therefore, she left the port of Kingstcni, in October last, luider the Hag of the (Initeil Htates, nhc iroiilil y the I'liitecl States that Spain had a ri<;ht to adduce proof to >h(iw that the I'iif/iiiiiix \\;\s not ri;.>'htfully carryinji' the tlaju' of the rnite 78 VESSELS — NATIONALITY FOLLOWS OWNERSNIP. Mr. Hiiviird oonvctlv stilted the law ref^anliii"- iiiitiuiiiility in tlio |iiissii (' Koh., 1")'): see 3 Kent, 13tl) Lord Stowell said: A bill of sale is the projter title to which the maritime courts of all coinitries would look. It is the iniiversal instru meiit of the transfer of ships in the u.sage of all uniritinie countries. The tla^i', then, the ontward synd)ol of ownership, shonld ]U'operlv c(UTespond with the hill of sale. (11 .\tty. (Jenl."()p., T'J, iSfJd.) And, liiiidly, we have on the (piestioii -Iml^i'e Story, an anthority on international law, received hy Jiritish pnlilicists and jnrists, as well as hy the entire world, as in the front rank, where there an' hnt two — the {ii'eat Lord Stowell and Story. We have him, too, on this (pu'stion, not as a lext writer, i»ut from the bench of the Supreme Court of the I'nitetl States, deliverin^i' the ju(l;>inent of that court as to the hnv in such case in time of peace. (See 1") IVters, pp. .')18-r» 13 supra; U. S. r. Armisted.) This was the case of a Spanish re^jistered and doc- lunented ship. Not only was she documented as a Spanish shi]» and as Spanish owned, but, by treaty between the nations, certain privile^ies were ^juarau- teed ships of either nation so documented. VKSSKL8 — NATIONALITY FOLLOWS OWNEhSHlP, It Wiis licM that till' rc^iistrv iiiid (lofimicnts— the sliiii's |iii|H'i's — well' I»iit priiiiti fill if I'vidciicc ot' S])iiii- isli o\vncrslii|i, iiiul tin* laii<;iiji;ic of the court was tliat it a vi'sscl uikIci' tliosc (•ircmnstaiiccs "slioiild in reality l»('Ion('s, and tlic )»ro)»ri('toi's were cnch-avorin}!' l»y fraud to cover tlu-ir own iUeyal acts under tlie tia;;' of Spain, there can lu' no douht that it would l»e the duty of our c(»urts to strip otl' the disguise." This was in lime of peace, and Mr. .lustice Story comments upon that, and sa\s that the alnive is the rule in time of peace. The authorities snhmitteil on this stdiject (at p]). ll-4rt) of the liritish ar'nee and an attachinji' cred- itor. The bankru)»tcy assi<>-nee wasappoint«'il in .Mas- sachusetts, and the creditor attached the ship in New York. Itwasaeld "for the purposes of tin- suit" that the shi]) was a portion of the territorv of .Massachu- setts, annment passed the title as ajiainst the attachment. Nothinji' else was decided. (r) Catlett v. 'i'he Pacific Companv (I Paine's C. ('., r)94). 7J» i!t1 80 VESSELS — NATIONALITY FOLLOWS OWNERSHIP. It iippcars distinctly from the docision of the (' wlu'tluT tiic implied wiUTjnity in :i policy of insm-- jnicc tliiit the ship wns an American vessel had l)een complied with. It api»eared, as stated, that she was (1) "■(hnicil hji Aninirtni vH'i^nis" and (2) It inis ^^riiiiri'ifiil" that if she also had an American register on itoard, it wonld have been a compliance with the warranty. The es.seiilial thin<;' dis|tuted, evidentlv, was the (pU'stion of American ownership, and the effect of rcfiistrv was not in issne. If this case is snp|»osed to decide that je«-t (and to that extent jjrohablv it is here) in the United States Sniireme Court on the arfiinneiit in 1,"» l'«'ters, r>lS, sh/iki, where the contention there and here was distinctly overrulefl. ('/) The texts (pioted from in all of folio "»0 (pp. 44-4rt), Hritish ai'^i'iniient, do not appear to l»e cited. Imt it is assmned that they refer to the lliffiiiiiis case already discussed in this ar^iunient. (') Direct issue is tak«'n with the Hritish ar^iiuuent (p. 4,5) in the jtosition that the same principle of con- clusiveness applies to the reji'istry of a ship as to nat- uralization papers, and if the ipiotation from Wharton (2 Whart. Di;^'., 304) — from which the frajiinent froin the connnunication of Mr. Kvarts is taken — had been continued, it woultl have l)een .seen that the inviola- bility of naturalization jtapers was put uj»on entirely different }iround. That <;rotuid was this: That naturalization was a ciecree or judji'ment issued bv a compet«'nt court of the ITniti'd States, and that therefore tiie executive department of the (lovernment could not for itself, or through any authority to an international conmiission Tlic position (tt" the rnitctl States licre, lis alwiiys, iiiiiv aji'aiii 1k' ivpcatcd. 'hiat nation asserts withont <|Ua1ifi(>ation, and vitli enipliasis, that where the Ha<^' floats over a shijt in time of peace, any other nation invades the deek under it at its peril. " Till- Kritisb iirKiiiiumt coiil'iises registry with "8hi|i'8 papers," enibrnc- ing nntl es^ieciiilly iiieiiiiiii); the "Hen letter" or " Ship'spass,'' isNuetl by the HiivoreijLcn authority only after olhcinl investigiitioii ag to artiial ownership. n s- -u VE8SKLS — NATIONALITY Kf»LLOW.«< OWNKKSHIP. authorize an inipiirv 'i>»tini; to nn individual the ri^'hts of citt/enshi]> is entitled to receive tlie respect given to all other Judgments ren«lered by courts <»f coni])etent Jurisdiction, and if not impeachable for fraud, is conclusive as t.o :ill the facts necessarily passed tipon. (The Secretary of State to Mr. Hamlin, l* VVhart. IMg., p. 35.-..) Tliis doctrine is fainihar in tlie United States from tlie leading- case in the Su|ireme Court — "Spratt's Case." This is <|nit«' a diH'erent principle from tinit \vhi<'li Avould he applied to the rej^istry of a siiip, with which no jutlicial or quasi-judicial authority has anythin<^' to do. The executive jtosition of tlu^ United States as to what is a test of nationality is stated in (! Attorney- (Jeneral's ()pinio]is at pacs iu»t truly rcpn'scnt tlic iirtujil tiwucrsliip, tlicrc is no ;;rnuu<: in such !i ciisc is wliully a i|U«-stion lictwccn nations, with wiiich privati' |M'i>on> Iiavc notliiu''- to i|o ami fur which they can make no |>iolit. Ttuhtso wonhl lie to cK'vatc the incidental inferior private interest into the place of the pannnount ]iulilic one. To do so in cases where satisfaction for otl'ended dijiiiity is due would lie to demand for one individual the reparation owin;;- to all the people of a ^ireat nation. Take the case of the Mritish ship Tnitf, where an An\erican cruiser took from under the Uritisji tla;;' the .\mericau citizens .Mason and Slidell. This liein.ii' an act of a pulilic ship of the I'nited States, that coniUr\ was. of course, responsilile for it. The proceeding- was variously designated as "wan- ton," as a '"wanton insidt," "piratical attack,"* and so on. .\n apology was demanded liy (Jreat Hritain and a return of .Mason and Slidell to the protection of tile Mritish flay', lint the su;i';i»'stion was never ijreamed of that .Mason and Slidell coidd have had any claim throu' iiiid tlu* iiiviisioii ot" tcrritoi'v. (Irt'jit Hiitnin asMTtrd tli»' ri;>Iit toi-iitrr the territory on tlu' ^ztouikI of s«'lf-j»n's»'rvatioii, a' term of imitrisonment und«'r the authority of tlie State of New York. Hoth (Jovernments — the I'nited States and (Jreat Britain — asserted that imprisonment to liave been uidawful, as the act of Mj-Leod had been assumed by (Jreat Britain as lier act. Sid)se(iuentlv, un(U'r the .Mixed Commission (»f 18"»3,* Great Mritain made rechimation for McLeod for »hnna;>'es. It was hehl by the British umi)ire tliat it could not be brouj>"ht before th»'c<»mmissi<»ner.s as a privateclaim, bee. ise it grew out of a purely national (pU'stiou which had been adjusted between the two «'ountries. The case will serve for further illu.stration on the (piestions before these IIi° the insurrec- tion a^i'ainst (ireat Britain, had been damaji'ed in his j)erson or property ri'inal alle<>'iance to Great Britain ? s."> !:: ' See Keport of A^ent of the ITiiited Stnteg, 314. St NOT THK NATIOSH CI.AIMH. Or .•.ii|i|M>s(' I'lti ('iiriiliiiii liml, ns n iimttcr of f'lict, tiinifil out til lit- till* |)r'iiiiist (Srciit Urifiiin tlnoM;:li the Initttl Stiitcs.' < hi ilic ilistiiirtinn Itctwcfii i|UfnliiinH of tli*' Ivinil !iri>in;i' iM'twtM-n Uiitioiis in r('S|(cct nt' tiic in\ it>liiliilit\ ut' nntionii! territory ionl tlit- *>nil)li-in of tlit- niitioiijil ili^i'iiity, inir |irMoert\ injuries )i;;iiinst nnotlier. it is lnoiitll\ iiml well (iniwn liy ronnsel in tlie tiise nf .Melln^li nnil utiiers iiL^-.iinst 'I'lie I'liiteil St.ites, Itefoic tile .Mixed ( 'uniiiiissiun niider tlie Treiity of Wiisjiinjiton (re|iiirt of l)iitis|i ii^i'ent. p. 6(»7, Appendix No. 7, '>-*), jis fol- lows: Till' i|iifstioii iielori' tliis Ciw issioii is not wlH'tlicr (ireat lii'itain liii.-i siitVcicil •ri'i«>vtiiii i insult at tlir liaiidH of the riiitcil States ill till- fast' in ii(!li r<'(^!aiiiation is sou<;'lit. It' it were so, it woiilil be entirely iiiiniaterial wliftlMT tliu iiitostatf. SlnMiiiaii, \v»'it' a Uritisli suliicct or no, ho haviny Ix'fii aiK'stnl on liritisli .soil. Tlie injury to (iit-at liritaiii was liv the iiiilawt'ul invasion of Ium' territory and tin* taking tlu'iic<> liy for( fa |it>rson iinilt>r the ]>rotcction of Iter laws, N\ licthcr that iicrtioii was an Aiiifrican citi/cn or Itritisli snlijoct is of no iinixiitaiiL-e. She lias the saint' ri;;ht of coin- jilaint af;ainst the InitiMl iSlntcs for the unlawful aniiii her soil, and his removal liy force from the protoction of her laws, as nlie would have for the Hiune treatment of a Itritish snbjeet. Hnt it surely can not be contended that, by reason of sueh injury to the soveiei};nty of (ireat l>rilaiii, Sherman, if in fact an Anieriean <'iti/.en, would have a standing before this tribunal to make reelaniation under the treaty. Jle woiiK have t, ( 'iiiii|ilicll mill otiifi's r, Sjijiiii, iniilcr tli«> Sptiiiisli ;iiiiis, iliily )li)riiiiifiit('il ii.s ni! Aiiici'iriiii sliiji. Tlic iiiii|>ir«> liiuls distiiirtly tliiit tlir \inliltioll ottlic tlil^i- Wils ill) ullt'llSf ii;iiiilist tllf so\ cr- ri;;iity ut' till' I'liitcil Stiitcs. Tlic rliiiiii wiis pni- ^(•iih'tl l»y tiic I iiitfil Sliitt's, iis fliiiiiis jirc |in'sciitf(l here, !ls uiU' oil iicfiiliiit nt' tile nwili r. Tllf iiiiipirc siiys: TIh' iiiiipirt' ciiii not \n\ \c}iU\iu»U']y culled upon to treat lliis as a case ol' tlie Ihiiti'il States aj^aiiLst Spain liaviii); tor lis (I'leet object a Hiiitable reparation tor the olt'eiuletl ili^nity (if iieir lla^. Ill siicli a case the reyiilnrity ot' tlie capture would con- >litiite the principal i|Uestion to lie considered — the per ~iiiiial situation of tlu^ owners of tlie property hecoinin^ siibordinalt'. Hut no such vttHf III' till- I'liitfil Stairs afini list Simiii has hie ii III- riiiihl, ill tllf opiiiiini It/' tllf lliiipirr, iiiopfilj/ Iw iirimiltfil til Ih'iH Iriliiiiiul. \t aiiotluT place lie says that it is — irrelevant under the circuniHtances of tiiis case to state iiow far, if at all, the acts of tlie Spanish forces were nnau- tliori/.ed liy iiiternationai law, and such as to create a claim on the part of ti i' I'tiited States a;{aiiist Spain in behalf of I he ott'endcd 8ovcreiu;nty of their llatj. i'lir claiiii was tlicrcton* dismissed tin tlie ;:niiind that altli(Ui<;li the seizure was outside ot" the jurisdic- tion of Siiain, and on the lii<>li .seas, vet, as it trans- 86 piled that f/ir oinirrs were eii^ia^i'ed in an enterprise ilawt'id as a;;aiiist Spain, the Tnited States could III lint recover on their aecoinit mnler veiition. theC anus i on mm T 8ti OONn.USlON ON KKKECT OF liOMICILE AND CITIZENSHIP. CONCLUSION ON THE QUESTION OF AMERICAN CITI- ZENSHIP AND O'WNERSHIP. Tlir s/icci/ii- cldiiii.s cliniiifittril. The (VM»|H'r('liiiiiis: Tlii' (inicr, Dolftliiii, Amid linl;. iiiid tlic Sdifiriuil. 'rile AlcXiimliT Fi-Miik cliiiins: Tlie Alfrrd Addui^. llldil; DiditiiiufL seized .Iiily 11, 18S!I, and tlie Lili/. Tile Andrew J. Hi-clitel elainis: The Cdrolciid ami I'athdiiiln: Tlie Daniel McLean claim: (The larji'er) Tridiiijih. The Ah'xander .McLean claims: Tlu' Oiiirdn/ and Fdriidiiff. Tiie tore' voya^ic As to the Jl/dcic IHdiiioiid, '*re;iistered" owner .Morris .Moss. As to the /«////, "re^i'istered " owner Morris Moss, The .Vndrew .L Hechtel claims: As to tlu' CdiDlriid, the entire ownership in Mnnsie. ,\s to the I'idli/iiidn; ownership half in the partner- ship, and a ipiarter each in the individual nuMnhers of the lirm of Canie i\c Mnnsie. The haniel .Mcl^ean claim: As to the lar;:»'r Tiiiiiiiidi,'2\ shares in Kd^arCrowc Haker: '_*■_' shares in Daniel .McLean, and 21 shares in one (!il)son and Hlackett. I; CONCLUSION' OX KKl'KCT OK DOMICILK AND CITIZENSiUl'. 87 'V\w Alcxiiiulfr .MrKciiii chiinis: As to tlic (hiiranl, Cliiirlcs Sjiriii;: as sole uwiut ;H:(I clilillliint. As to tlic Fiiroinifc, Cluirlc.* Spring' as sole owner .111(1 clainiaiit. It a|t|»('ars l)v the tt'stiiiiuiiy citol in tliis record tlinr tl'.e I'liitcd States, uiidei- tlie rianiel McLean, claimed to he a political and civil citizen ol the I'nited States, and in any case a civil citizi'ii domi'.'iled in the United States. Tlu' (hiiranl and the luiidiiritc one-halt' in Alex- iinder M(d.ean, an American citizen dt>micile(l in the I'nited States. it may he slatetl in this connection as the rnle in such cases, to which there have been no t'xceptions under prior commissions, an.d as a proposition which lairies its own demonsti'ation, that to entitle that natioi" to make reclamation tor anyone as ii person "ill whose hi'halt' (Jreat Ihitain is entitled to claim compensation from the rniteinal citizenship ajiainst the nation of hit; existing- citizen- ship. And so the Convention provides, Article I, that the ])ersons for whom reclamation nuiy he made by (ireat Mritain must be persons who then, at the time of the convi'Ution (anlicil in <»ur relations with Great Britain : A citizen of tlie United States residiiifj in Canada, wliose property there situate lias been destroyed and pillaged by Britisli trooits, must Hrst aeeiv redress from the tribunals of the country under whose laws lie has settled. (2 Whart. l>ig., sec. 241, and see sec. 22(!.) Kenworthy's t*ase, Mixeil Coinmission, 1853; llally et al. Connnissiun, 1871; see <> l'ai»ers. <'tc., Wasliin^ton, pp. 19-20; .Vnderson's Case, id.; Hoyd's Case, British Agent's Kepoit, p. 12. As heretofore seen in such cases, there can he no "iTound tor intervention hy tlie country of ori;iinal alleji'iance unless there lie discriniiiiation as ajininst ihe person Itecause of his political nationality as be- t\vee!\ him and citizensof the country of liis domicile. It appears hy the authorities hereinhefore cited on the sul)ject of domicile that the pi'esumption is that a citizen of a country has his residence and leji'al dom- icile in the c(tuntry of his political citizenship, a*nd that the l)in'den t(» estaldish domicile in anv other country is upon the ])erson alleiiin^' it. 'i'he l)U.rden may l)e at once shifted hy showinu' actual residence, MS has Ikhmi seen, but if there lie anythinji' i'.i the point made in the opposin;^- ar^iinnent as to Frank, the Mcl.,eans, and Becht(d artuer of Gutman, Ijut there is no proof whatever that he was a resident of Victoria, as he was not. (Hecief/o. See.\pp.2. As to Alexander McLean's American citizenship there is no (piestion; and while tlu* testimonv as to him is the stronj>e.st in the record as to anv residence in Victoria at the time (d" the seizure of the ships he was interested in, there is notpiestion whatever that for a loiiji" time prior to the ("onvention, at its date, and ever since he has had his domicile in the city of San Francisco. ( )n the (piestion of Inirden of proof to establish the relation to a person wliicli would «'nal)le Great Hrit- ain to make reclamation, it is settled hv the decisions under all the ("onnnissions heretofore referred to.* It follows, that if (treat Mritain shall sliift from the jiTound heretofore taken, that ownership in that nation's political subjects is conclude' a ship's re<>'- ister, and now claim the riainst their own country because of their domicile (a proposition never heard of lu'tbre except in the ar;;ument here), the chan,i>-e should start from the postulate as to them, that their domicile by resi- dence has been conclusively shown, both at the time <»f the seizure, and at thc^ time of the treaty and pre- sentation of the claims. The (piestion remains as to the effect of part own- ership by an American citizen with a Hritish sul)ject. ■ St'oartjiiineiit — citiitioii of Sir Uouiiiloll I'uliiior. piipers, otc Treaty iif Wnsliiiigton, vol. I{, p. 25, lust pariigriiph citrd. mi fll "iwlf 92 CONCLUSION OX EFFECT OF DOMICILE AND CITIZENSHIP. It' jt>int owners or partners, the whole chum must tail beyond (juestion. A recoverv ean not in such ease he had for a moietv by the ndes of international or eomnum law. The right to thi' protection of this Govemineiit may bo acquired by birth, by naturalization, or in Home cases and for some purposes by domicile in the United States. No other mode occurs to me, nor do I now perceive the authority of an officer of this (Jovcrnment, except in virtue of a treaty Mr.l'ish.Sec. t'l" otl'C'' positive legi.slation, to bring a new subject within of .State, the sphere of its obligations. Least of all can I discern any to Mr. pof.jtjulty in a private (iitizen to spread the protection of liis p°"8.^"J^; Government over a third per.son by adopting him as a part " ner in a commercial establishment in foreign parts. pan. Whatever the rule, however, ou this subject, tlu' United States desires to ur^e it only as aj^ainst those persons who have s"*fered their names to be used l)y American citizens, or have permitted the investments of American citizens, with them jointly, havinji' the object in view to aid such citizens to violate the laws of their coiuitry under cover of such arrangements, and have befouled their consciences in the effort to sustain the frauds. This objection is not ur<>ed l)y the United States as a<>'ainst the owners of the Tri- ii)nj)h, in respect of the shares in the former held by Mr. Hak r and his associates, who were British subjects, and in respect of the interest in the On- wan/ owned bv Mr. Spriny her owners at Vict(»ria, Mr. Sin'inji's interest sh(»uld l)e treated like that in the Omranl. In sucli cases, however, the rpiestion (if jurisdiction remains for the C'ounnissioners to decide, as it can not be waived l)y the coun.sel for the United States. DAMAGES — PR08PKCTIVE CATCH. 93 COMPENSATION, OR THE MEASURE OF DAMAGES. I'luler this lieud it is jn'oposed first to consider the question of Prospective catch and loss oj catch.* Tlie theory of all hiw on the snl)ject of the htss of personal property, is, that tlie i>arty deprived (»f it or al)an(h)nin<'' it to the e(»nverter may immediately sup- ily its place in the market with its money valne if le sees fit; and therefore his nieasnre of recovery is iniited to the value of the ])roperty lost. The following i)ro])ositions are maintained under the present convention: {(hic) The claim for prospective catch is settled advei'sely to <^reat Britain by what has been seen is conven- tional oi positive international law, fixed and bindin<>' on both nations, viz., a decision of the precise question on analogous facts by the adjudication of the Tril>u- nal of Arbitration at Geneva. (Two.) The claim for prospective catch, prospective prof- its, and the like, in cases of marine torts or cajttures on the high seas, however tortious, has never been allowetl bv any tribunal or court administering inter- national law, or by any authoritative judicial judg- ment of either country, whether administering inter- national or the nmnicipal common law. And of these in their order. * See the coutiiigeiicies anil uucortnintics of pelagic sealing, ji. 177, infra. 94 DAMAGES — PR08PECTIVK CATCH. {ONE.) Tlic JiidfiiHrid of GoHcni. liy the treaty of \Vasliiii}>-t()ii, Article VI, it was |)r(»vil by such priiiciplen of inter- natioiKil law not inconsixtent thvreivith ks the arhitratois shall determine to hare been applieahlc to the vase. Then follow the three rules as to duties of neu- trals in time of war; and the article closes with this jmivision: And the high contracting parties agree to observe these rules as between themselves in future, and to bring them to th»! knowledge of other maritime powers and to invite Ihem to accede to them. It is apparent that, as to the rule (»f dania;>es, the arl)ifrators were l)ound by the principles of inter- national law, and that their decision u])on that (pies- tion must Ite held to oe the international law as between these nations, accordinj^- to the authorities citee "JO, supra cf set/. That rule is l)indin;i' unh ar. This is ii strikiiifi' error. Alter !i very full and most exhaustive discussion of the (juestion of prospective catch, and after hotli sides liad rested the entire ar<>uinent, on Aufyust 1!», 1S7'2 — but ten (hivs l)efore the first formal ruling a<>'ain.st ])rospective ])roHts — the arbitrators recpiested the counsel for the United States to juesent tables of the claims of the I'nited States, and then in th(»se tables, as stated, "In accordance with the su<>'<>estions of some of the arbitrators (the counsel say), we have elimi- nated from the tables the claims submitted in favor of whalin}>' vessels for the prospective catch, the annmnt of which woidd be 84,()()!»,3(>2.r)0:" and it api>ears that those claims were so eliminated for the purposes of the tables for the use of the arbitrators, althou<;'h not wholly withdrawn. (See Papers, Treaty of Wasliin<>ton, Vol. Ill, p}). 579-580, and attached tables under head Shenandoah, l)p. (i()2-(;01).) In Protocol XXVII (Id., Vol. IV, p. 43) the arbitra- t(U's made their first rulinji' again.st pro.spective profits Auj-ust 2!», 1H72. Now, in Protocol XXIX, by which the Hritish ar<>u- ment, here, states, as above (pioted, "it will appear that the award was finally made upon the basis of allowing' ii sum equal to 2") per cent, etc., in lieu of prospective catch," it appears as a matter of fact, and as stated in the protocol itself, that the only fi<>ures pre.sented was n(tt an award or a findins|K'«'tivt' profits and interruption of voya;io" in this his own niiMV personal suesti(»u to the 'rriluuial. Hut as appears l»y tlie same j)rotocol (XXIX) the arbitrator for (Jreat Mritain, Sir Alexander ('ockl)urn, promptly attacked the item in (|uestion, sayinj;: M. Staeiiiptli has al8o adiletl. tor some aiiknowii reason, 25 |)t>r ci'iit oa the vahies of the whalers, an addition wliich can be easily shown to be equivalent to altogether allowing;, over and above the ori^iaal value of the whalers and their outlits. a i)ereentajje exeeedintj (Ml per eent, and this although the <|uestion of interest is left open to the decision of the Tribunal. 'I'his all ocenrred on Sififrnihrr :J, IS};* — seven days Ix'fore the award of the arltitrators. (Vol. IV, id., p|t. 44 t<) 47.) Tile award was (inally agreed to and adopted, as appears hy I'rotoeol XXXI, on Sr/itniihtr !>, 1^7. 'J, and in it is the ///^f^/ (h'cision on tluMpiestion of pri>spertiv(! ]>rolits in these words (see id., ]». o.'J): AikI wiiereas i)ro8pective earnings can not i)roperly be made the sabjeet of compensation, niasnnu'h as they depend in their nature upon future and uncertain ar<;innent as al)ove (pioted) was made and si^iiied l»y the arhitra- tors on September •_', 1S72, and after .M. StaempHi had then made the snj;';i-estion (called the award i»y the opposiiiL;' arjiumeiit) so vij^orously and successfully contested l)v the arltitrator for (Jreat Hritain. The error of M. Staempfli in protocol 29, is thus .shown to have heen fully discussed and ruled to bo an error, and expressly ruleil as not haviufjc the ap- proval of the Tril»unal. '! ^ DAMAUKS — I'WOSl'KCTIVK CATCH. . It is ii Miiittcr of no iiii|iortiiiic(' licrc, hut it is np- piirciit tliiit in iiiiikiiiy' his siii^'^icstioii M. Stii('m|i}ii Wiis misled in iissuiiiiiij>- tliiit (irciit liritiiiii liinl iiumIc an fMliiiissioii in tlicir ciisc to tlic ctVct't set out in his nu'inoriimhiMi sno'^^cstioii. 'rinis: At i>ii;i(' 1(M)1» ot' the IJritish counter casi^ iuid cvi- ilciicc, iit'tli )»in'ii;irii|»ii, it Wiis siiyiicstcd ns to the irliiiHiii/ n-sscls (in re^iU'd to wliicii mil// juiv cliiini lor prospective ciiteh Wiis luiide hy the I'nited States) (hat interest at the rate ot' " lA) /iir mif jn r kiiihihi on the \ahie of eaeh shij* and outfit, and in aihlition o cents pel' ton ]ier (hiy to meet expenses on account of expemlitures and other (nshursements, l)oth amounts hein^i' inchuh-d lirtirccii flir da// of Irariiiff pint ni/il llic iliifr iif iii/iliirr, wouM provi(h' for the h»ss actuallv sustained in respect of the forty-one wliah-rs." M. Staempth evidently understood from tliisa(hnis- sion that 2") per cent aj' niliir was admitted l»v (Jreat IJritaiu as a proper measure of damay'es in tlu' case of the whalers, when the fact was, as aixive (pioted, it was :J.'t jtir mit jirr nininiii iiitnrsf tor the limited time, which had l)een sui'sted in hehalf of (Jreat Hritain. It is apparent that the arbitrators allowed no interest in their award except on account of tlie whalers, and for the limited period suiijiVstiMl in the Uritish ar;^u- ment as above. It is submitted that it has been demonstrated that the (leneva Arbitration did decide that prospective profits should not be alloweiiment, the Tniteil States substantially al»andoned the claim. Claim for prospective catch or jn'osjjective profits was made only for tlie forty-one whah-rs destn»yed or captured, for tlie most part, bv the SlirHiinilixili. B s 1;{ 97 ?f !i! ^wm 98 DAMAGES — I'ROSFECTIVE CATCH. It a|i|tt'iuv(l timt thi'sc vi'sscls wore tnkcn on tlic wliiiliii^i' «:r(»iiiiils, iiiany of tlu-iii with cimturiMl wliiilc-; iictually iiloii;;si(l«': all ot' tli«'iu succcs.stully t'lif^a^td. and all witli nioit- or li>ss Ixmi* an*l oil on Ixianl, witli evi'iv hope of a larj>n catcli. It a|i|K'an'(l, too, tliat suiistantially tlio same ovi- di-nci' as to tlii' iisliinji' «iroun(ls was ]»n'sc'ntc'(l under till' claim for id'ospcctivu catcli as |tivsi'ntcd here, includin};' the evidence that nia.sters and crews had their "lavs'" or shares in the voya<;«'s. \'ol. ill, I'ajier.s, Treaty of Washin;;ton, pp. 253- 2."»4; "J Id., .'JS4, and specific evidence of prohaltle catch and estimates. "Am. Claims." Paraphrasing;' the hritish arjiuinent at pajiV 2"», fol. 10, as to seals: I'lir rrssri.s ini'i' Joiiiid ait the li'liiilii/ii t)i<>iin(l-<, irifli irrri) (iji/iHni/ct' for r(tl(liiiiif irlialrs ; tin irhuli s inrf flicrc to he oim/lit. It is not apparent from the learnin;;- on the snliject, ■ heretofore I'ecorded, that there is any difference in the rule of damai^es for marine tort, whether that tort lie the result of iic;:li;;ence or , tol. 30): A nuliciil distinction oxists lii-twiMMi tlic Ai-'IniiiKi ciisc and the ])i'i>siMit. In thu ciisu of tlie Alulmmu \t was mtt roiitviKliil that it was tiio dcsijrn of tlit' IJritisli (iov'tn'nincut to ranse tiie loss whii'li ensiu'd, uw was hucIi loss tlu! diruct it'snlt of tlic nejfliyfi'nco with whicii they w«re charjjred. Tliis is iinswcn'fl tVuiii tlic IJritisli nr^iiiin-iit licrc, itself ipiiitiii;;' tlu' positions ut' tlic I'liitcil Stiitcs a^iiinst (Jnsit Uritaiii (p. 21, tol. 10 <■/ mv/.). Tilt' cliar^',' ot' tlic liiiitcd States liefore tlie (Sciievn 'rril)iiiial was coiisidcrcil l»\ licr .Majesty's (Joveni- iiieiit as "a cliarye of iiijiirioiis iic^iliii'eiice." (Mrit. Ca.se, \'o|. 1, Papers, Treatv of Wasliiiintoii, p. 4rj.) it was eoiitendeil on tlie part of the I'liittMl States tliat the acts of (Jrcat iJritaiii were of a eliarartcr l>v •'actual or constructive complicity with the Confed- erates which ;;'ave the same riii'hts a^^ainst her as (ireat Britain asserted hv war against the Nether- lands." (Id., V(d. Ill, p.*21S, and .see id., pp. -JlK- •J20--J22-22:5.) I'he whole aroument of the I'liited States, from iu'ninniu;,;' to the end of the (leiu'va 'i'riliunal, was to estal)lisli these |)ropositions, as a^ain>i (ireat Mritain, l)y the acts of cruisers for which damaoes were awardeil: Thed»'t'aiiltscharKvd,an(l as wo tliiiiii, the defaults proved, are jjrave, serious, capital. * • • If yon destroy my ship, my house, or my horse, by culpa- l)le carelessness, it is no answer to say that you mi}iht have been more careless, nay, that you ini;iht have acted with deliberate malice. If there be responsible wrong, whether it be the greatest possible wrong or a ilcgree less than the greatest possible, still the indemnity follows as a legitimate and .just conseqiientie. Snob, indeed, is the tenor of the creaty, which attaches resiKmsibility to mere wiint of "due diligence,'' and does not rei|uire that (treat IJritain should have been guilty of the utmost conceivable degree of willful negligence which could by possibility be conunitted by any Government. Id., p. !20. flr'?!'W1f' xoo DAMAGES — I'KOSPECTIVE CATCH. I.I., i>. 'J'l.i. 8ncli is the lolative predic'ameiit of Great lUitaiu and tlie United States. We liave been injured as a nation by aets of a niaiitinio wai' liapiK-niiifj;, as the counsel tbiidc tbeyliaxe ])roved, by the culpable and responsible neglifjencc of the IJritish Government. The wronj;; is direct as between the two nations. 'rrilmnal t'ountl Orcat the tullowiii" liiiiyuaye liritaiii «»f tlie And tlu' (icncvn oiiilty of ii t(irt hy awiird; And whereas the circumstance s out of which the facts con- stitiitinji the subject-matter of the present controversy arose wev»i <>f a nature to call for tlu^ exercise on the part of Her Br nic ]Majesty's Government of all jmssible .solicitude for the servance of tlie rights and duties involved in the jjroc- lama ion of ueutrality issued by Her Majesty on the l.'itii day of May, 18<)1. • • • * * Aiul whereas the (iovernnu'iit of Her Britannic Majesty can not Justify itself for a failure in due diligence on the plea of tiie inellicieiu'y of the le}>al means of action which it J K)SS(>sse(l ; Four of the arbitrators, for the reasons above assiffued. and the tifth, for reasons separately assijjned by him, are of opinion — Tliat Great Britain has in this case failed, by omission, to fultiil the duties prescribed in the first aiul the third of tlie rules established by the \'l Article of the Treaty of Wash ingtou. Ami see tlie viji'onms terms "oU'eiider" ami "iieiili- oeiiee" ill the Award. (Award, \'(»1. 4, i'apers K'elat- iii;.;' t(» TreatN' of Wasliiiiiitoii. ]»|). i'.t, 50, .")!.) vl Jitiliiri' aj'ihir ililii/nicr is one of tl:e standard deti- nitioiis of iieo'li^i'eiice and of "eiilpalde ne^li^ieiiee." ('iilpahle neiiliucnce is not actionalde uidess it results in injiirv, and recoverv can not lie liad for it, then, unless the neiiliucnce is the direct or proxi- mate cause of the injin'v. So that the (ieiiexa Trilmnal haviiio- found eiilpa- l)le nei:li^-enee on thi' part of (ireat Mritain and an DAMAGKS — PHOSPECTIVE CATCH. injiirv, tlie luoasiirt of ri'CdvtTV iippliod l»v i1 is tlic im'jisurc to Jh' iip})]ii'(l in all casi's ot' iiiariiu' tort, and ill this case. It is suhiiiittcd tliat tlio niliiiji' of the Cu'iu'va Tri- bunal on ])ros|)C'ctiv(' catch is the law — the law of this case. (TWO.) There is no authority tor the allowance of ])ro- s])ective catch or jirositective profits in international law, or in the judjiiuents of the courts of either nation. Then' is no conflict whatever on the subject, and after considering the Knji'lish and American jndle itself, so many contiupencies which may vary or extinguish its application, and so many didiculties in su i\.]iiiif^ itfi legal correctness, that the court can not b'^^lieve it propev to entertain it. The Amis'.ad de Hues (.') WheiJton, p. 3X5): In < li.ics of iiKtiiiiv torts this court has deliberately settled ♦hat the probable profits of a voyage are not a lit mode for the ascertainment of damages. It is considered that tlie nde is ton uncertain in its own nature and too limited in its aitplieabiJity to entitle it to judicial sanction. 101 "«»lf " 102 DAMAGES — PROSPECTIVE CATCH. In tlic Hritisli Coimtur ('iisc, (Jciievii Arliitnition (pp. !)1I0, !iyi), wi> iiiiIicable to the i>re.sent (piestion. It is on this principle, limited by these considerations, that the courts ol' common law and ot' adndraity, as well as the l)rize eoxirts, Ixith in lOngland and Americ j, ):ve awarded damages /// vusvs n)' collisiiin, cnplnrc. tmi '>'/,■ >•- of a like 111(1 lire. Thus, in the case of the Amnlin (5 >"( ,. Ko;.' ' i , ll>4), Dr. Lnshington, the late very eminent Judge (/!' tli<' high court ot admiralty of j^nglaiul, said: " VVluM-e a collision inis taken jtlace and one of the parties to the collision has been placed in the situation of the wrong- doer, according to all ordinary principles of Justice the party injured ought to receiver full ami entire indemnity for his loss. Tliis is a |)rineiple of common Justice. It is undoubtedly the rule originally pi'evailiiig in all these cases, and is technically styled n:stititlii> In int<(jrnni. It is not only the doctrine of the court of admiralty, but the doctrine of the courts of common law." .Again, in the s. iiit'liiiliiij; Tiiiicy. ('. .1., Iii.vinij ilowii tin' rule of tlio tuxt iiinl (lissiiitiiiK liiMaiisenot aiiplii'il to a casr of doti'iitioii pii riscly as to a total loss. t DAMAGES — I'KOSI'ECTIVE CATCH. Ou the other liaml tliat yi'iieral iiili' is limited by tbe con- siderations above referred to. Thus, in tbe Cohimlnis (2 \V. Itobinsou, l.'tS), Or, Lushington said: "It lias been argned tliat the i»rineiiile uiion which this court proeeetls in all matters ol this kind is rcxtUutio in inie- (jfxim ; in other wcn-ds, the principle of replacing the i)arty who has received the (lamage in the same position in which he would have been i)rovided the collision had not occurred. As a general jnoposition, undoubtedly the priu(rii)le in (jues- tion is correctly stated, and not only in this court but in all other courts 1 ai>i)rehend the general rule of law is that where an injury is committed by one individual to another, either by himself or his servant, for who.se acts the law makes him lesponsible, the party receiving the injury is entitled to an indemnity for the same, iiut although this is the general iirincii)le of law all courts have found it neces- sary to adopt (iertain rules for the application of it, and it is utterly impossible in all the various viises that may arise that the remedy which the law may '^ive should always be to the precise amount of the loss or injury sustained. 103 111 * * * "Let us for a moment consider what would be the effect in all cases of this kind of giving anything beyond the full value of the vessel destroyed. Supposing, lor in- stance, that this vessel had been an I'-ast Indiaman bound ou her outward voyage to the Ivist Indies with a valuable cargo on board, lor the transportation of which not only would the owners be entitled to a large aimuint of freight, but the master must be entitled to consideral)le contingent juofits from allowan<"es nnule to him upon such a voyage. Oould this court take upon itself to decide ujion the amount of these ct. "The true rule of law in such a case would, 1 conceive, be this, viz. to calculate the value of the projterty destroyed at the time of the loss, and to pay it to the owners as a full imlemnity to them for all that may have happened, without entering foi' a moment into any otlier consideration. If the principle to the eontiary contended for by the owners of the smack in this case were once admittetl, I see no limit in this application to the (lilllculties which would be imposed upon the c(uu t. It would extend to almost endless ramilications, and in every case 1 might be called upon to determine not oidy the value of the ship but the prolits to be derived on 104 DAMAGES — PROSPECTIVE CATCH. the voyage in wliicli she might be eiisiiffed ; iuiil, indeed, even to those of the letuiii voyage, wliidi might be said to have been defeated by tlie collision. Upon this consideration alone I shonld not, I conceive, be Justitied in admitting this claim." The same qualitication of the broiid pvinciple of rcstHiitio in hitifiriim is laid di)\vn by Mr. .lustiee Story in several reiM)rted cases, as, for instance, in the case of the Linli/ (1 Gallison,;Jl 5), where that most eminent American jndge said, in reference to damages for loss of cargo: '■ rp(»n the whole I am satislied that the profits, U])on the sui)position of a prosperous termination of the voyage, ought jiot in any case to constitute an item of damage. ♦ • * ^ am satisfied upon print-iple that an allowance of damages upon the basisof a calculation of profits is inadmissible. The rule would be in the higlu'st degree unfavorable to the interests of the community; the subject would be involved iu utter uncertainty. "The calculation would i>roceed ujton contingencies, and would require a knowledge of foreign markets to an exact- ness in i)oint of time and value which would sometinu^s pre- sent embarrassing obstacles. ]\Iuch would de[iend upon the length of tilt' voyage and the season of arrival, much upon the vigilance and activity of tlie master, and much upon the momentary demand. After all, it would be a calculation upon conjecture and not upon facts. Such a rule, therefore, lias been rejected by courts of law in ordinary cases, aiul 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.'' Si'c also 1 'arsons oil Sliippino', Vol. I, p. 538, and Sedywick on DaniajiX's, p. 70. Tlio ivason of tlie rule a^i'aiiist allowinh seas near the Hrazlliau coast uj)on a whaleshij) called the CaiKidd, sailing* under the Hag and belonging' to citizens of the I'nited States."* '["he act was conniiitted by the military authorities of Brazil, for which, of course, the Brazilian (Jovern- iiient was responsible. It consisted of the capture of the vessel, resulting in her loss to the owners. Not only was the act an atl'ront to the flag and the dignity of the [-nited States and a disastnms wrong to citizens of the Tnited States, but the circum- stances were particularly atroci(ms, in that the whaler at the time was in distress, having run on the rocks, and was in iimninent danger of shipwreck. The un(piestioned principle of international law need not l)e here referred to, that in such circum- stances a vessel is held to l)e under the jn'otection of all nations, and free from the ordinary rules as to lial>ility t(» the laws of port of any nation except its own. On March 14, 1870, a convention was concluded between Jirazil and t\\o. I'nited States by which the (piestion of lial)ility and compensation was referred to the arbitration of Sir Edward Thornton, then, and for ti long time thereafter, Her Britannic Majesty's minister at Washington. Sir Kdward made his award on July 11, lS7t>, by which he found the following facts: The Caiuuhi gntunded on ii reef of rocks within Brazilian jurisdiction. 'I'he proper means were used by her captain and crew with every prosi)ect of suc- nispatcli of Secretary Kisli to Mr. Blow communicated to tbe mia- " " ■ ■ 8, l>ecember 28, l«i». p: ister for foreign i B8 -U TTWHW^ 106 UAMAGK8 — PROSPKCTIVK CATCH. »'oss to ui;li the interference. Il\i(h'nce was introduced as to the ])ossil»lc iiid ])ros|tective catch if she had been permitted to pro< eed on lier voyaji'e. The amount of the pros]»ective catch was (h'luon- strated liy her own previous catches and 1)\' the catches of other wlialei's tor the same season. The distiujiuislied arbitrator f course hehl Hi-a/.il lial)h' for the full value of the loss so iuHicted on the citizens of the I'liited States, and tliat a full coni- ]»ensation and indenmity became actnalK' due from the moment of the loss; but on the (piestioii of pros- pective catch, the arlntrator, in rulini;' against it, uses this laiiiiuauc: I can not admit in any case tlio right to i>iobal)le profits, because tlie sliijt nii<>lit have been lost at tbc bejiiiniing of bcr voyajje, or tlie exjictlition niijilit liave been altojietiu'r a faihu'c and in-otitles.s. (Vol. (i(>, lUit. and For. State I'apers, 1874-.'5, pp. l.M»t-JO!».) (ireat Britain made a claim ajiainst («ermanv tor the destruction of certain British vessels in the Seine by the forces of (n-rmany in ISTl, in l)e]ialf of her subjects, the owners. The daims were fir.st audited and examined (as the.s<' shoidd have Ix-en) authori- tatively by the Mritish (n»vernment, and for this jtur- pose were referred to the lords of the privy council tor trade. There was alsct a reference to and a report from the learned registrar of the court <»f .\dmiraltv, Mr. IJotherv. 1^ ■ i DAMAGES — PKOSl'ECTIVK CATCH. 107 "I'lic result was rcportcil 1)V Sir Louis Mallet to Lord Kiilicld on April L"), ISTl. Tlic followiiij;- is an extract tVoni that report (lirit. and For. State I'apers, 1S7(I-1, Vol. 61, pp. T)".! 1-607): As regards the claiiiis of tlie owners for loss of enii)lo.vinent of slii|i8 over and above the claims for value of the ships, and of the nnistera and crews for loss of employment, the board are advised that they must be rejected as untenable. The claims preferred nniy be said generally to iindude the values of tlu^ vessels, and of the cargoes which were on board, or were about to be i)ut on board, compensation to the owners lor having been forcibly deprivetl of their nrop- crty, and comi)enHation to tlie master and seamen for the loss of their employments (p, (i(K(). A further ([uestion seems to have b(?en raised whether the owners are entitled to anything beyorid the full value of the vessel and cargo, the rvsliiiitio hi iiitcunim, on the ground that if they had not been dei)rive»l of their vessels they might have continued ior some nionvhs or years to carry on II prosperous trade and have realized large protits therefrom. One gentleman claims specilicaily ou this ground tlie antici- pated |)rolit8 of several snbseiiuent voyages, and all of them claim it iu Notes of Oases (p. 071). It was the case of (t Jinliiiiii rcsscl,* which had been run down and utterly lost, and the owner, who was also the master, claimed, the smack having been his sole means of support, a sum of C8!» for wages an»v.v.v contract, the sliijiowner will make a i)rolit, nor what that ]>rolit will be. 1/ there is mi critrcnx contract for the hin of the shiji, iioii can no tlouht cstimutc appro.rimoteUi the jtrojitu of the roj/dfic, ttnt if there is no sitch contract yon can not \vned l»y American citizens, and was under the American Haaiiist prospective catch, it is clear that that item was not allowed. \\l'l DAMAGES PROSPKCnVK CATCH. 109 Ofhrr (iiitlioriHi's train flic courts. Ill till' J/i(illiiii (II Wlu'jituii, ;{()•_»), .Mr. -lustico Storv, (IcIivcriujLi' the opiiiiou ot tlic «'t»iirt, siiid (p. TIlis court on various (xu-iisioiis lias exprcssi'd its drcidod opinion that the i)rohal)le prolits of a vr)S; Del. Co. r. .Ann.ld, ;; l)iill..;{;{;5; TIicAuuu .Vmid. •iWlicnt.. :\-21. Wood's .Miiviu' on l);iiii!i"('s, citi'd in the Hritisli iiryiinicnt (1st .\iiK'riciiii Kd. troll 1 3d Kni>lisli edition, ji. At!) says : In fjeneral, however, injuries to projuMty. where unaccom ]ia.iied by malice, and especially where they take ])lace under a /tincieil rhjht, are only visited with daina^ics luoportionato to the actual iiccuniarv loss sustained, ((irand Tower Co. r. Phillips, I'.t Wall., 47 1'; Owen r. liouth, 14 O. 15., ;{L'7.) And in I Sutherland on Dannio'es, 173: The value of the luoperty constitutes the measure or an eleineiit of damages in a great variety of cases both of tort and contract; and where there are no such aggravatioi « as call for -2). i: I<|.V™V-'?'!I (. I' 110 DAMAGES — PROSPKCTIVK CATCH. It results that the (l(MMsioiis of iiitomiitioiuil courts, ciiid t)t' courts of Itoth countries, arc, without excep- tion, in (hrect conHict with tlie i)ositi(»n taken in tlic (tpposin;'- argument, in every case when- the ship of the claimant is lost to him l)y tort, either l»v destruction, capture, or the ahautloumeut l»v the owner to coinlenmation proceedings, or to the captor, or in any other case of actual loss of the property. Cases of detention, and possildy of warnin): The action was like that of con- spiracy to injure trade. It was a willfid and malicious tort, for which a recovery could have been had, as in the case of any trespass. As for instance, a cons|»iracy with overt act or, possibly more aj»tly, a malicious libel not action- id)ley>''r .V6' and not actional)le without an averment of special damaj^cs. The case is not in p(»int, and besi(h's its citation here is distinctly noii srtiiiitttr, as the amount of dam- af>es, or whether )»roHts were alloweil, (h)esiiot appear, the parties hav'u<>' aj;reed to refer the amount t(» arbi- tration. * iSt'o page 116, this argiiiiieut. DAMAGES — PROSPECTIVE CATCH. Ill (-') 77/r tli.^iihif,, (S |». 1)., p. 110): {ii) It Wiis not a ciisc of loss ot" the vessel, but was a suit for tlaina<;»'s for delay or deteiitioii while inakiiifi' repairs reiuK-nMl lU'cessary l)y tlie tort. (h) The suit apin-ars to have been between for- eifi'ners, and never to have Ix-en appealed. ((•) It does not appear that the point as to proba- ble catch was niaile in the ca.se when rejtorted by the reji'istrar and merchants, ]»ut the defendants went to proofs and contested, the point deciiled l»ein;i' a (pu'.s- tioii of costs only. ('/) The case occurred in ISSl; the decision was never treated as an authority or cite. lOll) — an appeal case decided afterwards — the case of 'I'lic J{isi)liit(i is not referred to, and it was there held that a ship havin;.>' been tlama^cd l)y collisicm, the owners claimiufi' anionji' other things damaiji's for loss of market, the conse«pU'nce of delay, it could not be considered as an element of damaye, atlirmin';' Sir .lames llannen in the case of '/'lie I'didiia (2 I'. I)., 1(15-1 IS), where it was held that for a delay the coiisijiiiee could not recover dama<>es for loss of market, as that element of daina<>es involved a mat- ter (»f speculation (tn contin<>encies: In the case of LiunI) r. Walker (:J Q. H. D., HHd) it was held (Cock- burn, C ./., dissentini<) that prospective damas|»t'ctiv»' (!;iinii;it's ill Ihiilcvr. .Miti-licll ( 14 (»>. M. !>., 11 Ap))., 127). (,/) This is not an iiiitliority iis njiiiinst tlii' IciKJiii^i Fisliiiio- ciist^ involving dircrtly tiic iiriiiciplc of iivt'ni;"*' profits nil t'litiirc ciitcii, (Un-idcd hy I >r, Lusii- iiiji'ton (The ('ohiiiihi(s, (j Notes of Ciiscs, siijira). Thr (ilvdiiif (3 Asp. Miir. Ciis. X. S., AS'i), iilso V('i)oi-t(Ml ill .'{H L. T. (N. S.. (i">(l). This wiis an action lirouji'lit ajiaiiist a trawl tishiii;ji' smack, Tlic (ilfdiin; liy the (»\viit'fs of the drift-net smack 'I'lir Jfdiiil (111(1 Florence, for collision. The (daiiii \vas for the \aliio of lu'ts and <>car ami compeii.sation for Ictss in fisliiiiji'. Tlic ship was not lost. The report of the re;iistrar allitwed f72 tor the earninjis of the smack for four weeks — the season's lisliiii;^'. The chiiiii was not ohjec d to, and the case Avas not ill court on the point « owaiice of pros- jiective profits, but was reporti 'le court on tlu^ HUestioii of costs only. The case was never appealed. (-t) The AiffeiifiHo (14 A))p. C'as., p. "»19): This was not a case of total loss. Tlie Jri/entiiio was proceedin<>' on a vova<>e to Sevastopol, dial she IkkI d coi/lrdct prn- vidinji' that as soon as she dischar' tlio contract for the sec(.iid voyajic. Lord Ilerschel announced to the lords his views, as follows: It dots not appear to nie to lie out of the ordinary course of tliingn that a steamship while prosecuting her voyage should have secured employment for another adventure, and if at th( time of collision the damaged vessel had obtained such an engagein adventure ajuiearh so) The case of Phillips v. [.(.iidoii iu»overned by a rule as to dauiajies entirely di.stinct from tho.se of injuries to jirojjerty or pntperty rights. '/'//(' Forfuiic lidji cases: There are some luifortunate omissions in the statement <»f facts in this citation which will be supjdied. The claim was for 8120,000, and while, as stated, "there were l»ut four vessels out of the Heet ot twenty- two actually lishinji'," it apjwaii'il that those fimr vessels irere haiidlint/ the seines in liehalf of and for the henejit of the entire fteet of twentji-two. It further appeared, and was proved incontestably, B s 15 :'*:'., X,.t- ■p iilJlU'.iiSUfi "11 i 114 UAMACES — l'ROSPE(;TIVt: CATCH. that in tlio seines at the t'nuv of the tod, and therefore in jKissessiou, tliere were suttieieiit tisli to <;ive a full canjo to ciyi-// one of tlir tiveutif-tiro vrsscls; aiul that by the act of the tort feasors, the projjerty iu lish so aetually at the time in possession of the Heet was lost to them. Theelaini, therefore, was not for i)ros})eetive jn'oHts, bnt for property actually taken from the fleet. Tiiere was no agreement or decision jjiving esti- mated profits or averafie ])rofits, or j)runu'Ut here, on this citation, tliat tlu* set- tlement by the ])ayment of a lump sum "implied the '•onsent of both nations in the j»rinciple involved in the claim for catch." If the j)rinciple of prospective catch should (iver It ' I^'l ' ""''PI Ih' ('(MU'cdcd jit .••11 in cases wlieiv tlic owikt sut- t'ors ii total loss of the cariiiiij:' iiii'diiim, there would be no reason or lojiii* in allowin*;' liiin for one season onlv; his loss of earninrinciple that the owner, havin;^' lost the earnin<>' instrument, he should be eutitU'd to what it would have earned him tiKlate, as for instance in the ci;se of t(»rt for a continuinji' nuisance. rir The remaininji' proposition of the Hritish ar<>unu'nt in su[»port of the claim for prospective profits, resting- on cases like that of Allison r. ('handler (11 .Mich., r)42), cases of personal injuries, cases of profits on special contract, and cases involvinji' malice, wantou- ne.s.s, orjjross nei>liji-ence, W(»uld not be seriously con- sidered buf for the fact that counsel, for whose Icarniui"- and ability there is entertained the most sincere and profound respect, liave aj^ain so far yielded to their instructions as to set it down for the consideration of this Iliji'h Commission. 'V\w "iult is so wide lietwei-n flic |>ropositiou apply- inji' here, as heretofore discu.ssed, and this one, as to permit of no contact t)r induction at any point, and till' very text writers and ca.ses cited to sustain the latter, as will be seen presently, point out the broad distinction. it will l)e treated under the hi id iti' (IdiiKif/rs jinii'i- tori/ or r'nidictirt' in rcs/xtt iij inintomirss, iiHilicf, or ffro,'j»ted the rule of tlie Kn<;lish jiKlfJf- nients in eases of partial loss, distin<>uishin while she is undergoing repairs. That an allowaiuu" shmi lU some com))ensation for this loss would fail to be an indemnity for tlic injury is a])parent. Tliis<|ue8tion was dire(;tly before the court of admiralty in lOngland, in the case of the (lazeUv, ilecided by Dr. Lush- ington, and in deciding it the court observed: "That the jiarty who had sulfered the injury is clearly entitled to an adeipnite compensation for any loss he may sustain for the detention of the vessel during the |)eriod wliieh is necessarv for the completion of re])airs, and furnishing the new articles." In lixing the amount of the damages to be \\i\\i\ for the detention, the court allowed the gross freight, deducting so nnich as wcmld in ordinary cases be disbin\sed on account of the ship's exjM'Uses in earning it. A case is referred to. decided in the common law courts, in which the gross freight was allowed without deductions for 117 118 DAMAGES — "warnings." expenses, wbieb was disiipproved as iiieijuitable and exceed- ing an adequate compensation, and the qualification we have stated hiid down. This rule may attord a very fair indeii.;iity in cases wlieie the repairs are completed within the period usually occupied in the voyage in which tlie freight is to be earned. Uut if a longer period is reciuired, it obviously falls short of an ade' Kniiislie(l from cases of total loss. It may be observed in passinj>' that in the case of the Clyde, supra (Swab.), Dr. Lushin^ton (puttes Ur. Twiss as refei'i'in<>- t(» the above-cited case (»f the (fa- zrlh', and sayin<>', that a pai'ty was in a better situation who received only partial damage than one whose pniperty was totally destroyed. Dr. Lushiufi'ton comments: "This is undoubtedly true, but it does not affect the ))rinci])le." The Befseif Cn'nies (2 Ha<>'., 2!)) was a case of col- lision, wherein the injured vessel was at the time en' that there was not sufHcieiit evid(!nce to support the recovery, said: No authority has been mentioned by which the court might be induced to consider itself excluded from considering a •luestion of consequential damage. » • * Besides, this is not a mere claim for consequential orproba- lile charge only, if the smack was ivctually in the ]mrsuit of earning that which it had been stipulated she should receive.* 'Again a case of certain (laiiiajtes in tort inoasured by au existin); cou- Iriict. iW\ 120 DAMAGES — "WARNINGS." And see wlicre the (listiiictions iirc drawn between total and j)artial loss, and yet where in every case mere ]»ros|)eetive daniaj^es are exchided, the tbllowin<>': 1 ladle V r. Haxendale (!) Exeheciiier, Hep., o41), a case of special contract. Tin- yoftiiif/liill (;» V. 1).. 109, siipi-d); delay by collision resnltinji' in the cancellation of a charter- party — the charterers having a right t(» cancel the charter-party for delays, liad canceled it, and the court held the tort feasor liable for the loss of the charter-])arty, the actual loss being cajiable of exact computation as between the amount to be paid for the charier and the amount actually earned by the ship in less profitable em|)loyment; but in that case it was held that there nuist be deductions from that sum for wear and tear, for the difference in the length of the voyages, and for the uncertainty incident to all sea voyages. Tlir Coiisctt (5 P. 1)., 229) was a case of collision and loss of charter thereby. Of course the charter was in esse, and the loss capable of s|)ecitic compu- tation. On the other hand, in the Forarm (2 I*. I)., 118), which was •; suit for loss on account of a delay of three months, the loss having been alleged on the fall in the price of cargo, and there having been no con- tract for the price, it was held that there could be no recovery for the loss of market. Tlir (Hurciirr (\\ W. Hob., L'SS) was a case of col- lision and detention. In this cassi' it was attempted to ]tro\e the loss b\" e\iilence — as in this casi' — of average earnings of other vessels. 'J'he court said: The (|iK'stion wbich I liavc to deterniiiie is iu>t the rate at which such a vessel as the t'hnriicc might be hired out, but liow uiuch the foiupany have actually h)8t by lier detention whilst !uider repair. * • • DAMAGES — " WAKNINOS. 121 * * • lu order to entitle a party to be iiuleiiuiifled for what is termed in this conit a coiise(|iiential loss, being tor the detention of liis vessel, two tilings are abso- lutely necessary, uetnal loss and reasonable proof of the amount. • » • The objection, it appears to me, has been founded upon a misapprehension of tlie principle upon wiiich a court pro- ceeds in assessing the amount of danmge. It does not fol- low, UK (t miittir of nivcsxitu, that anytliing is due for the detention of tlie vessel whilst under repair. Under some circumstances unhiin tin's complaint is that because of the infeiior quality of the seed a cro|> of less value is produced, by these circum stances the means would be furnished to enable tlie jury to make a jiroper estimation of the injury resulting from the loss of prolits of this character. Till' Maylu'V ens*', rcitortcil in 4 HIiitclit'., 43'K wns (iooidt'd l)y Nelson, circuit jiidjic nt'terwiirds of the Suprt'ine Hc'iicli of tlic riiitcd States. It was jin ap- jK'al from the decree of the district court in a case of collisi(»n, partial daniajie, and detention. Justice Nelson says: Theaggregateof the bills jnoved for rei)airs, etc., i881,.l'(JL'.;i(t. If interest be added, say for live years from the 1st of November, 18."»l. to the date of the report, October lit, 18.V.I, upon the bills for rei)airs, etc., which inteiestis *r)."»4.17, making the aggregate *l.',l(iL!..S(», whicli, deducted from the amount rei>orte(l, leaves a balance of 8l.0iM>.r>(), which nmst liavc l)eeii allowed for the fourteen days' demurrage. I am not satistied that tlie |)roors bring the case u|>on tliefiuestion loyment in the towing business, and the amount of tlie earnings if employed. This kind of jn'oof is too siicculative and contingent to be a fonmlatioii for any rule of damages. It is. at best, a con- Jectine. The true (|nestion within the case of Williamson r. Uarrett was what could the tug ha\e been chartered for i)er day in the business of towing, rvijuril Ihuki hod in the maihrt ]>rici' in the i-iti/ of Siir Yorh. This would have i)rought the (piestion down to some degree of certaint.y and atlbrded ground for an intelligible allowance or lutt of the loss whicli the libeilant had actually sustained by the delay during the rei)airs. The facts, as left by the examination by the com missioner, are too uncertain to form a basis of any allowance M DAMAGES — "WARNINGS. for the detention. They are s])ei'iilivtive and conjectural and mere opinion, *.o which no limit or rule can be a]>|)lied, and it can never lay the foundation for the action of a court on this Hubject. I shall therefore strike out the item of demurrage, i!!l,(Vj!>.'»0, and confirm the decree for )?-,102.80; costs to i>e allowed on the appeal to neither party as against the other. Fletclier r. Tayloiir (17 ('. li., 2(1) is somotiincs cited on the \ Coolcy, r. ./. Ill IJrowii v. Siiiitli (I'J ( 'usliiiiji', i{(i(i), the court says: The (ioiijectnral or jtossible jtrofits of a wlialiii;i- voyajic can not lie taken into consideration in estimating the daniaji'es. ni jirofits as ii iiu-asurt' of dairiiiLics in ruses of tort or coiitriict liavc never lieen allowed as such, saxc wliert' at tlie tiiiii' of tlie tort or of tlie lireacli of contract evidence < oiild lie adduced of a certain t-liaracter in tlie nature of a definite and certain aiiioiint to lie realized if tlie lireacli or tlie delay from tort had not OCClllTcd. un Tlie seannji' nusiness in rue .\oriii i acme or in le .\sian seas. On the other h uid, unlike the cases of detention ('■ I DAMAOKS- ' WARNINGS. 125 wlicrc liiisiiu'ss is lost, tliore is no wear ami tear to l)e estimated, as the slii|) did not enter upon the voy- a<;('. tor (h'tention froiii which compensation is claimed. (^Mioiid tlu' tort, every ship and e(piij»m«'nt was as yood as ever after the period ot" delay. A fair charter value in such cases would be the rule. Milt, on the whole, it is siihniitted that, as hy inter- national law l»etween nations there is no rule as to interest or the rate of interest, somethinj;- in the nature of a substantial return on the amoiiiit invested should be awarded to the owners of the slii|)s of Ihitish sub- jects tor the season's sealiiiji' voyajic for which the vessel was (Mpiipped, and from realizin;^' on which she was prevented by the warning;'. 'I'lie j»riiUMi»le adopted l)v the Hoard of Trade in their reports on tlu- chiiin of the whalers in the case l)etbre tiie (ieiieva Tri- liiinal is a reasonable one.* Story, ./., in the case of the l/inlji (1 (Jail., i515), which was a case of iinlawtiil capture, said: I slnill allow dciiuirrafie. iiu'lii(liii}>' tlicreiii wajica and expenses of the ship IVoin the time of capture until she could retain to the place of capture. Siibstantiall\' the same |»rincipK' was involved iu the decisions that have lut-n considered in the discus- >ion of partial-loss cases. ill this <'onnection it slioiild be oliserved that in the case of the forty-one whalers as to which there was Ml much discussion as to prosjiective profits in the ( iciieva case, manv of the whalers were not destroyed, Init were ca|»tured and bonded, and driven fnan the sealinii' jiToiiuds. Others were utilized l)y the captors lor the purpose of rerieviii<^' their ships of ca[)ti."es taken from other vessels destroyed, and thus were not onlv driven from the sealinji' firounds, but were sent on the service of the captor-s. ' r. 97, siipm. 120 DAMAGES — I'lINITOKY, ETC. Tliis appi'iirs by tlio sclu'flulc and sfahMuciit of claims in the record of tlic proci-odin^'H at (Jciicva, but for more coiivt'iiiciit reference as to the facts tlie opinion of the American (Jonunissioners of tlie Ahi- bama chiinis in tlie case of the Jdiiics Mauri/ and others may be referred to. l)(iiii(if/i's piniifnri/ or vimiirfirr in rrsju'ii of icdntoinicft.s, iiKilirr, or tfross Hi'ffliffcnce. In so far ns tlie opposin;;- arj^ument «'laims damat,fes for acts of wantonness, insult to the tla^j', an I ihe like, (juestions whully between nations, the position seems to l)e that in some way an individual subject mav succeed, as it were, to tlie usufruct or satisfaction that one nation ma\' demand of anotiier for such acts, and that this vindication of national honor may be trans- nnited into cash for iiis lienetit. On this propositinn enouji'li has l»een said and sutlicient authority cited. Inasnuich, however, as some weijjht is attacheil to the i)osition of the American counsel at (i» .cva in respect of this class of dama»i'es (see th' Am '.u-au position (pKited at pp. 20-21 of the British argument) that point is briefly referred to. 'riu; American arjiumeiit stated the rule (»f damages which applies in all eases of malice, "culpaide ani- mus," nv i/riiss nff/lii/fiii'i', which is always held to be the e(iuivalent of malice or willful and wanton injury. On the theory of the case of the l'nite(l States as ori;>inally ])resented at (reiieva, before the withdrawal of their unlicjuidated and unestimateil national claims, and on the theory of their ried was the loj^ical and correct one, altln»u<>li not allowed then, and never allowed in the history of the world before • ///r Xolioii, upon the theory, sustained, as they claimed to have demonstrated by the evidence, that the acts of tiie ('onfederate cruisers were dlrrif acts of (ireat ih'itain of a hostile charac- ter, and to sustain that position hy the record, inter ;dia. they (pioted .Mr. ("ohdeii and others tliroujiliout tlieii' case to that elVect. To illustrate liy one instance of many, to sustain tlu* char;ie of ciilpahility and lios- tilit\. and tliei'cfore what would he calleil as lietween individuals, willful and malicious tort, they (pioteil from the speech of Mr. Cohdeii in the House (»f Coni- nidus, iis follows: You liiive been carryiiiji on liostilitios from tlicsc .sliorea iifjainst tlio iu'oi)le of the United States, and liave been inllictiiig an ainouiit ot damage on that country greater than would be iirodiieed by many oi'dinaiy wars, etc. (Id., i). 1.S7 middle.) The facts of record, unhappily, seemed to the coun- sel of the United States, such, as to reiiuire them to r ;&; If "I : "III.jp w 128 DAMAGES — PrNITOUY, KTC. urji't' the ruli' ot" (limiiiji'i's t'roiii which the IJritish !ir;:u- nu'iit here (|iiotes; as, tor iiistiince, they state ot" tiic acts ot" (treat Hritaiii tliat "her acts of actual or ((iii- stnict've comphcity with the Conteth'rates {iave to the United States the ri^Iit of war aji'aiiist her as in similar circuiustaiict's siie asserted aji'ainst the Xelher- lainls." (Id., vol. 3, -JIS.) .Viid a<;'aiii: "\o such case on so lar^c a scale has evi'r occurred except in the controversy l)etwc.) Such national claims, or so-called indirect claims, however. W( re, as hasbeen seen. |)ractically withdraw n 1)\- the rnited Statt'S on the intimation that (ireiil iiritain propo.sed to withdraw from the arbitration. 'To conchnle this reference to a most rejirettidile jtart of that controversy, made necessary owin^;' to the citation in the opposinii <>t ilimiiijics was lint I'M'ii sini-;i('stc(l. Tluir rule liad no more to do with tliosc cnscs tlicr«' tliaii it lias to ilo with tlic cases licrc. Ill this case tli*' I'liitt'il States asserted jiii-isdietioii over a piece oi' territor\', and e\teii(h'd their iiiiinici- jial hiws oNcr it. In imrsuance of the exercise ot tliat jurisdiction and in tlie exi'ciition of those laws the ( io\erniiieiit diil not discriminate a;iaiiist liritish stili- jects or the siilijects of any other nation : hut the great- est ill iiiiinher to suffer, and the L;r<'iitest snlVerers from its action wen- those jiersoiis who were under the pro- tectioii of the I'liiteil States and were their own citi- zens * The incidental and coiii|iarati\ el\- insi^nilieiint iiijiir\' to Ih'itisli snlijiM'ts in this assertion <)f a ri^^lit ol' so\ei\'ii;nt\' in respect ol the seals in Uerinu' Sea can liardh he cliaract<-ri/ed as "wanton" under such circumstances. It has not Iteeii considered a wanton and oth-r.siveact l>v(Jreat Britain, when l>y international nejiotiatioii and l»\' treaty, that ( ioxcriimeiit has treated the (pies- lion of the jurisdiction of the I'nited States, as one of such n'l'jive (loul)t that all other considerations should lie postponed until it could lie decided; aiiil when liy repeated coii\-eiitioiis, treating:' on the suhject, as a matter of ri;ilit or wronu', irresjiectixc of jiirisdiclioii, she has admitted the rectitude of the iiosition of the I'liited States iis to pre\cntinu' pelagic sealini;' in Kxi'liiiliiii; the tln'ts ul' AiiU'riciin ('ili;'riis who tilicvi'il tlu' lin\n liy Ui'(^|iiiif; out 111' till' NOiiliiij; i;iiiiiim1h, iiiiil \vori' tlms ilr|irivv judicial judgment — ami was then treated as a simple tort. In these conditions it is not seen how tlie illustration cited against the I'uittMl States from .Mayne applies, where lie sa\s: If any other rtih' exist «■(! [ilie rule as to punitory ;es in citcuinstances of aji;;ravatioii| a man of hujiv fortune nii^ilit by a ccrfain outlay purcluise the rljrlit of heiuKa i)ulilic tor- mentor, lie uiipht copy the exami)le of the youn}>' Iiomau uohle mentioned by (iibbon who used to run aloufi' the Forum striking everyone he met ui»on the cheek, while a shivu fol- lowed witii a piu'se making a lejiai tender of the statutory shilling, i Itrit. Argument, p. -I.) DAMAOKS — ITNITOin, KTC. 131 'riic rule in tliis case is, as tlic sjiiiii' iiiitlidr statos ^Voodv , . . ,„ . , Xlaviu' oil It, as ut a case (it oiilv "raiicu'd njihts, thus: Hiiiim^ics, 1st .\m.Kil.,tVoni III jieiieral. however, injuries to pioiterty, where iinaccoin :i'o]iortionate to tiie aetaal pecuniary loss sustained. Xt'itlicr is it seen liow the rules apjily, citt'tl tVoni Siitlu'rlaiiil on 1 )aiiiaL;('s. that tlic niotiv*- witli wliicli a WTdii;^' is (Idiic allccts tlic rule hy which coiiipcnsa- tioii is lucasiircd. or, as the same author is (Hiotee t'oiiiid in Sedji'wick: and his statement, as (|Uoted in the o|t|iosiim- lirief. as to cer- taint\' in the allowance of jirotits, "wlu-n not «'xcliiiled as unnatural or remote, heiiiji' wholh' a (|Uestion of the certainty of proof," refers, of course, to that "cer- taintv," in the lef^al sense of the term, as defined hv the cases which have lu'eii alreadv exliaustivelv examined. Uut i>asl piolits are in no case to be taken as a jiuide to what inav afteiwards be made. (IMasterton r. Mt. Vernon. • IS N. V.,".$',»l.) 'I'iie citations from Sednwick and Sutherland, of which the case of .\Uison /■. Chandler (1 1 Mich., ')A2) is taken as the te.M. appeariuji' on paiics l'S. ■_>!», and I J w i'(i 'tr^™™ 132 DAMAGES — PlMTORy, ETC. 30 (»t tile IJritisli iirf^iiiueiit, Jirc aiiotluT iiistiuicc ot I'Xtroim'ly iiijti)|)rtn»rijite iipijliciitioii. Ill tilt' fiist^ of Allison r. ( "liiiiidliT, it" i'Xfiiiiiiu'(l, will lu* tuuiul the same hroad '0(i(l I'aith and uiidor an honest belief that he had a legal right to do tlie act, the plaintitV is entitled to lecover only actual damages and not daiiiages of a iiunitory character. The action was one of trespass to realty, ami the acts of the defeiidant were of a jieciiliarly Hajirant and oiitrajieous nature. Allison lia stock in trade. It is usually spoken of throujih the hooks and reports of cases as the leadinu' example of a "willful, wanton, reckless, and nialicioiis trespass." And so the .MichiiL','an cases follow it, i»ut distinjiuish cases like the one here considered. (Ilvatt /". Admus, l(i Mich., ISO; liatterson r. Chica-.-o, 4!) Mich, 184: Kreiter r. Nichols, 2S Mich.. 411(1) And, furthermore, it is held in the supreme court of Michiji'an — where Allison /•. Chandler still holds its place — that the "wroiiji' must he one wilfulh' done till' |»laiiititf, and Mot a wron;^' iloiie without ri'fereiice to him." (Detroit /•. McArthur, Hi Mich., 447. And see '2X .Mich,, supra; (Janslev /•. Perkins. ,'50 .Mich.. 4il-_': Teiihopeii r. Walker. W .Mich., '>:U\.) The case is like that of rempertou r. Kussel — malicious injury to trade — (ISK,'}, I {}. IV, 71."t), or if applied to marine torts, would he like the cases of malicious arrest of a ship, if it was the "result of had faith or rrti-isn neiiliL;eiice." (See cases cited, L. 1{ Dio'., lS!il-lsil,-), column 803.) EXTRAVAGANT CLAIMS. TIr' (iiiotiitious troiu I'otliier, l^Jiiirciit, imd tVoni Dl'HIoIoiiiIh' ivciuire hut two (•(minit'iiTs: (1) Tlicse iirc not cMSfs df tViuul: and (2) It ni't'd liiinlK- be said that ilic ruk' (if daiii- au'cs uii(k*r the ("ivil Law diHers from that of the coiiinioii law, and lias no apjilication Iumt: neither has any code which has the Civil i^aw for a parent. LEGITIMATE COMPENSATION AND HEREIN OF EXTRAVAGANT CLAIMS. Hereafter, under the proper heads, the testimony of the several owners of the respective vessels and the other evidence will lie analyzed, so that what may lie deemed the hi<:hest limit of fair valuations and fair compensatitin for injuries may lie arri\-e(l at from the testimony. '['he tendencN' to preposterous exaji,t>eration by claimants aj:ainst nations, and I'specially under ( 'laims Commissions, has been universally observed, and is authoritativelv set d;l/,)2!»,sr.l. The claim of American citizens presented to that C'onmiission aiiainst (Ireat liritain ;inoT('o-;ited >^ 1,01)0,000, of which noiu- were allowed. fi?!'it. .Vuent's Hep., p. "i, App. 1(14: and see Am. .\,uent"s ivep., vol. (!, Papers Treaty of Wash., pp. 4,S.) I'nder the Convention of February ll', 1S71, bi- tween the Cnited States and Spain, upwards of >^;iO,- OOO.OOO of claims were presi'nte(l and considered. 133 and o ftl US amoui It th lere was alloweil souk ■thii lU' o\e ^1,0(10,000. (Am. Wep.. -'Opinions and Decisions Ai W' iiiem lix.) 134 KXrUAVAGANT CLAIMS. Hcforc tlic Aiiici'Icaii ainl IJritisIi Coiiiniissidii ot 18;");} cliuiiis ii;i'utiii<:' some Diillioiis dt' ddllms were prt'sciitcd hy ciU-li ('(iiiutry JiiiJiiiist the dtluT, .111(1 tlic total award on tlit'in was, on account ot liritisli siihjccts, >;l*77,1(>2.(SS, and on accoun; ot Anicrican citizens. >i.'5".^!»,7iU.l(l. (Am. Aiivnt's lu- ])ort — Iiitrodtictioii ami Recapitulation.) I'lidfr the Claims ( "onveiitioii hetweeii tlie rnited States and Mexico ot" .Inly 4, 18(>S, the claims pre- sented ai47(;,(;i8.i;{. and the Com- missioners allowed on them the sum ot ^ii,!)7r),ri;{.71t.* Urit.aiuU'.ir. jn April, 1S71. the Mdiitiiti, an American shin. .Stiito I'll- ' , , , . Ill I • •. 1 o ' ,■ piis. iM74-Avas captured and detanied l)\ the I nited htates ot "°'.L"'; ''"■^-"h"ii''iii- I'he I'nited States invt'erred a claim for damages. The matter was referred to arltitrators. The amount of the claim presented was >>ll4,0()(t. Tlie arl)itrators disa^irei'd, and the matter was then referre paid fui- 8lii|>. Alice ■>() Ann 10 .lani' Tindiill Jl .li'ssiiniine 1(1 McLaren l<) Sally (iale 11 Svlpli 53 mo 117 l.-|!l 211 ITS i;is f 2, KMI I.S2I l.NdO -', r.()(t LMlOO 2, SlIO 2, (K.O 7(10 Br it. and 1,000 l"»i'- State 7(10 I'apers, 000 Vol. 61, pp. 1, 100 595-5it7. 9.->0 .-.-)() 15, 32 1 ,900 i The aj>'<>Te^iite of claims presented was 20,-_>7O poimds; the total allowed on the able report of the registrar of tlie Court of Admiralty was (I.SDil pounds. A similar rejHU-t by the same authorities was made (111 the American claims and tiled as a part of the ISritisli case before the arbitrators at (Jeiieva, wherein tlicv say: It will at once be admitted by those who are at all familiar \ol.2, Papers witii the practice of tlie courts in maritime ca.ses that it is ™ii'ting to iiiilKissible to place much reliance on the opinion or evidence Jy^'^}^- "' of shipowners or nu'icliaiits as to the value of property ton!*p!"s3! wiiicii they are scckins to recover. Sliipowneis are in the hiibit ol tbundiiig tbcir estimate not on what wouUl be the iiiarki't iirice of the vessel at the time of her loss, but on ' A fJ.-Tr.-^ 13(J KXTK.VVAGAXT CLAIMS. the iit be cited. Init the above will sullicc to show (what, iiuleed. a nu're conipari.s(ni of the claims tliciii- selves with the value aiul toninij^e of the vessels but tim clearly proves) that these demands are of a most extortioniilc character. Vol. 1. 1' pers. Ire of Wa.sh. 5:)8-.'>n. I i)elieve that the estinmte of >*\W) |»er ton for ship and Outlit (whaling ship), jiropo.sed in the iiritish Iteports. is sncli as would l)e accepted as adecpiate by i)ersons aci'i''''i-Ml<'' that if tlie <>-eueral phiii of presentation as pioneered hy tlie alh-ji'ed owner, ^Iiiii- sie, in tlie lon]it have been added t(» the enormous amounts that are i low suown and as 111 tl le case o the Cdioh'iKi, vouchers niiji'ht have iieen presented of the most orderly, most regular, and correct kind to convince the Commissioners that all tl lese were usee It s- 18 138 DAMAGES — "I'EKSONAL CLAIMS." ill ii im»loiiiiial phui, in the amounts of tiios*' hiliorionsly lioiicst voui'hrrs for supplies and ciiuipiiR'Hts, arc not in the case, and even the first fruits of it, so carefulh- preserved and so faithfiillv sworn to l)y Miinsie, the ('(ualciid vouchers, are nut I )roiijilit forward, (»r their amounts h»n;;'er iiudiKh'd in the al)ove " vahiations." Tlie Commissioners have seen tlie (daimants iit \'ictoria and liave o!)served their methods of ]»repar- in<>' and ]»resentiiiji' their evidence. As a tdass, thev were certainly no better tiian those referred to in the citations lieretofore (pioted, as iK'iii}^' unrehable assess- ors of tlieir own vahies and (hima'oticIi story, which seems still to be fiiveii credence in the IJritish ar^iument, is a story of hard- ship, l)ut it is not ludieved, after the investijiation at Victoria, that the Commissioners will <>ive it any credit, p. ,")9, ached- The "surt"erinj''s and losses, navi<;'atin-e(l for the hardships iill appear by the table presented. ■ Infill, p. .T!.". i^' i l,AMAiit it di', tor the lirst time, thiit Wiirreii. IVtit, iiiid Keel'e were occiipied diiriiiy their "deUiition" in Aliiskii lit II very hijili rnte of coniiiensntion, |»iiid In the iinthorities of the L'nited States ( Jovennuent, for their services luider volinitiirv conf: t better wa;:'es in that employment than in following' the sea. There is no claim for wa^cs in thesi' personal cl iins, and not a word of testimony except that of Mar;;dtich and the witness just mentioned as to any actual damage sutfered. The testimony of (,'aptiiin liaynor disposes of the O^livie claim, and it is not thought necessary to ar^ue the (|Uestion as to whether the item which .Mr. .Muusie ('harries for cash lost throu;;h him is a j)ro|K'r char^ie against the Tniteil States, 'I'he jiersonal claims are of a character in any case which have never heen allowetl in a case of unlawful capture at sea. 'i'hey are claims for jiunitory dam- ages, which, as we have seen, can not furnish the rule of dania;;es here. It appears throu^ih all prior ( "ommissions, and iiotahly under the (."ommission of 1S71, that all ]ier- sonal claims of masters or memhers of crews of ships 18!) 140 DAMAUKS — •'rilHSONAL CLAIMS." tor iiii|iris(iiiiiu'iit, lmnlslii|»s, ur dtlicrw isc, were pfc- sfiitcil sc|)iiriit('ly iVom tlic ships, hy iii(li\ idiKils, lic- (•iiiisf ii liiidiii;^' wiis n'(|iiinMl on "ciicli" cliiliii. .is in lliis ciisc. It follows, on tliis ground iiiso, tlint im cliiiiiis cini lie cntcrtiiiiicil tliiit iirc not scIumIhIciI. It Wiis tlic iict of ii ( )o\ ('rnincnl mulcr coloi- of rii^ht innl cliiini of jnrisdiction. Aitliouiiii the persons un the ciiiitni'fd \('ss('is were |H'ii('ticidiy ini|ii-isonci| in tlic AliiliKiiiii ciiscs, IK) siicli cliiinis were cN ni |ircscntcd. Tlic cMsc ot tlic Miiiilijii, siijirn, Wiis |iiirticnl;irl\ oiitriiui'oiis iis jiiiiiinst the slii]) and those upon her. In tliiit .case similMr cliiinis wci'e presented liy the I'nitcd Stiites in lielndf of the otiiccrs mid crew, iiiid this is whiit the Ih'itisli minister, iictiiiii' iis umpire, decided on such (diiinis: lint tlio iiiMK'i'.si;iiM'(l, wliilst (lecitliiii; mi the liiiliility ct tlic owners, docs not si'o miy nt't'ossity tor indtMiiiiityiiiu- eitlicr Mr. .loliii Sclinilu'r, tlu' ciiiitiiiii, tlie I'liH'iiu'cr, or the |)ctty olli(U'rs iind ercw ol' the Mciifijo. No pei'somil injury seems to IniNc licen sutrercil hy iiny of tliese persons, iiinl tlie incoiivenieiict' tlicy oxperii'iiccd .ippeiirs to liave liccn siiiiill. Ill the fiise of tht' uH'km'I'.s anil cicw piohiihly tlu'ie was none at iill. Tlie waKi*"* ot all of these latter have doubtless been paid hy the owners, so tlnit it really iiiiist have been a iiiiitter of iiidiH'erence to them w hetlier tliey weic sailin,ii under the orders of Captiiin Hamiders or ol' .Sefior llenera. As to .Mr. .lohii .Sehniber. the iindt'isi<;iied eaii scarcely consider iis a ca.se ot' I'alse inii)risonment his retention on board of his own \e.ssel. 'i'hat lu; wiisnot ii I'rce mtni is true, iind tliiit he siiHered some inconvenience and possibly some loss of business by the act of which he complains is prohahiy the case. It is also i)()ssible that a court of law mifiht considei' him entitled to iiersoiiiil daiiiiiges, but the undersiKiitMl believes thiit ii 'I'ribnnal such as this is may lawfully e\crcl.se consid- erable discretion of its own, and decide rather on broad {{en- eral piiiicijiles than on a strict interpretation of written law. Such bein^i' lii.s opinion, he coiii'iirs iritli the Ayhilnilor of *lif f'nitid States in strikin;;' out of the accounts presented by that (ioveniment the chiinis for iiersonal diunaj;es of all the parties (!oiiceriied. KAMAflKS — SKAL SKIN VAhlKS. CLAIMS FOR LEOAL SERVICES. < >ii tln' tcstiiiiuiiy fit N'irtiiriii. it is iuinlly tliiiii;ilit |inssil)l(' tlifit tlif'sc clijirtii's will Itc ciitcrtiiiiiLMl, in sutiir ;is tlicy rt'liitf to the |»r<'|»iir!itiuii ut' cliiims to Ix- prc- >ciit('(l ii^^'fiiiist till' ( lo\('niiii('iit, jiikI iiorliiiiji' ciui lie iillowcil tor "Iciiiil imd otlicrcxiicnscs." on inicstinuitt', ol' witlloMt |irool' of wllill tll('\ iWC. W'liiiti'N ('!■ rliiir;^c> were |i;iiil ont tor tlic dctcnsc of tlic ships of IJi'itisii owiici's in tiic conrts ot' Ahiskn, iippcnrin^ in tlic Hritisli scliciinlc of ciiiinis lict'orc tilt' I'jiris 'rril)iin;il, slioiilij i»c iillowcd; liitt tlicrc must lie ii ciTtitinly ot' proof iis to tlicin, nml tlicx' r.iii not !)(' i'('co\('rc(| witlioiit j)roof, iiml on tiicir iii('i-(' stiitcinciit ot tlic cljiiiii, jinnloHohs to tlic ail 'liniii/iiiii cljiiisc ill ;i (Iccliiriition ;it niiiinioii law — unless tlic theory of the llritisli ari;iiiiicnt lie correct, thiit (linnancs on a nciicral allegation of le^^al ex- penses can hciiixcn liecanscof matter of a;^t;ra\ation. In the case of the claini of (Jreat IJritiiin in l)elialf ot' her siiltjects in the ships dcstroxcd l)\- Prussia in the Seine, s/ijirii, the cliar^'c for Ic^'iil services of lawvers eiiiployed to protect their interests was stricken out. The claim is iieNcr allowed in such cases of niariiie tort. (Hdltiiii'in; S Wall., ,577.) ( )r in cases of wrongful cMptiire at sea. (Xiusfra Sruorii iii' h'rf//ii, 17 Wall., p. ;;i.) 141 I I Till'- vam:k of skai. skins.* The liritish Aiynnieiit cites the witne ;sTlieo. I.uhbe, the h'adiiiii' iiurcliaser of seal skins in the \'ictoriji market diirin.u' iSSd, 1S.S7, and ISSi) t(» this effect: That the inark(>t at \'ictoria was ruled l)\the liondon 'Till' iiiinilici- of seals si'i/^id mi I'iirli vessel is iiccniiitely staled in the Aimuiit'iit for (Irt'iit liritaiii. rw'wipp W 14-: DA.MACKS SKAl. SKIN VALIIES. ■lies. This liciim' so, even it' it lie iidiiiitti'd tluit tli< \ |)ri('fs li;tv(' iiiiytliiiii;- \i> ilt> with tin- niciisii Ldiiihti of \;ihl('. tile tcli(h'lic\ (•)' tlic tcstiiiKillX iis Id th; torciii-ii iiiiirUi't, ill ('diiiicctidii with tiic ;ictUiil siili t \ ictoriii i> ti> the cdiu liisiou thiit the \ ict nn;i ncfs, s(i ruiiMi, ;i re still the tests (if \iihii'.-. ill tiii> The ('\i(h'i ICC I lischiscs.i low ('\cr, t hilt there Wiis ill \\;i\> ii iiiiirUet ii t \ ictnriii. iiiid thiit the I (illowiiii'' were liii'i;'!' l)ii\('is iit thiit iiliice iliiriiiL;' the three \ em issC llcndori New V Liililie, re]ireseiitiii;r .Miirtiii Hiiti orl Aliiskii ( '(iiuiuerciiil ( (1111- |iiiii\ : IJessiii^cr i\i ( )i\.; The I i iidsoii W.w ( 'oiii) I ' - - lehes i' >c ( )t S.iii r liiiiciscd: 1. .^ A. I );iii\ KISCdW it/.. 1SS7: Theodore 1 Ir., .^ ( fork: I New V iihlie, re|ireseiitiiii:' .Miirtiii liiitt ork ; ,1. I'ldiuini i\i: < "o.. of N e\\ Nieiics iV: Co., of Sim Kniiicisco; .Morris .Moss, purchiisiiiL;' iiii'eiit iit \ ictoriii: .1. Uoscowit/: Hudson \\,\\ ( 'olll|lilll\ . ISSH: Theodore Liiltlie, re|»reseiitiii;:' .Miirtiii IJiites Ir. i^ ( .f New York: Wiilter l5ov lis: n lllllilll. oi New V ori 11. vlelie i^ ( oi ^illl OSS, jiiircliiisiiiL;' iiii'eii Friiiicisco: .Morris .M toriii: 'i'lie lludsoii l?ii\ ('oiii|iiiiiy: .1. t ill V ill Id n OSCOWIt/. With tl lis cxideiice of ii iiiiirket tit X'ictoriii iiiul with the (deiir exideiice of iiiiother iiiid iicti\f iiiiirkcl so iieiir lis Siui friiiicisco, it does not \ el ii|i|ieiii' how the ('\idelice ot' London sides could he coliliietellt irc- Tlie (diiiiiis oi'ii^iiiiill\- set d iwil m the stdiedille | ill tcriii- liiised (III the \'ict ol'lll seiiteil ill 1 iiiis were iiiiirket. with the exception of those of .Mr, Miiiisic, who there .sets out the London |)rices. .\s to the other cliiiiiis. the l'oreii;ii iiii;rket is ii new theory. It is not iiecessiirx' to iiu'iiiu stiite the nieiisiire ol reco\-er\' lor the comcrsioii ol persoiud |iro|ierl\. The ciises heretofore ciiiefullx iiiiiil\/.ed. iiiii\ ersiilly hold to il test, tliilt would exclude the London Iiiiirket l)AMA(iKS INTl'.UEsr. MS ii iiu'iisurc of \;iliif. Wlu'rcxcr iircsciitccl, us to rjirjid, ill CMscsot' luiii'iiu' tori orcoutrfict, sucli ii cliiiiii liiis been iiiviiri.ihly riilcil ;iL;iiiiist. Tin' rime ot' tlif iiit'iisurc i>t' viiliii' ill such cnscs is tlic iImIc ot' seizure. IMie jihnc of tile measure ol' \ alue of cariio is imaria- l»l\ tlie port ot' tle|»artiir<', it a market exists there or, if not, the nearest market. 143 INTKKEST. Ill limine, it may lie saiil that inti-rest was never liefore claimed ii|»on |)ros|»ecti\ e profits, or uiioii aiiy- thiiii;' j:i\('ii in lieu ot jiro.spective profits. Tlie only reason excr nixcii for the ;illo\vance of interest at coimiioii law, or l)\ the ( 'i\il law, is, that as prospec- tive proiits or future earnings can not lie i;iveii, inter- est shall lie alloweil to represent future earnings, or future profits, as the nearest approach to a just rule that the law can attain. Hut her<' is presented a claim for future earniuii's as well as for the actual values, all, too, emhraciiij'' the tlieor\ of punitory dama;^t's, and withal, a claim lor iiiKTest siiiieradded to the sum of all these. Apart from this \ie\v of the nialter, upon wiiich no moit' lime will lie spent, a re\ iew of the authorities, cited in the opposiijo' ariiumeiil, seems to lie reijiiired, as \\(dl as some reference to the principles appl\ iii<.i' lo the slllljecl. ((0 III'' (iii'iiiil (ij Sii' I'lilirmd iliiinihiii nx iiiiijiiriiii Hit' tdsc (if'llir I 'iiilid Stiitrs iii/(iiiis\ lirii:il Is c'lltil. This case has lieeii ;iiial\/ed in this ar;iiimeiit. and it iip- pears, as Sir U'ouudell Palmer stales, that the decision 144 I ) A ^r A( ; hs — i ntp:k' kst. ;i 1(1.. p, Mill., p. Id. M.,p, procccdcil upon "onliiiiiry jtiiliciiil pi'inciplc III iiiiii III reel tl for tcs rlic cspt'ciiilly reckless iiiid willt'iil cliiii'deter tills seizure i-oiiiiiiitreil 1»\' the iiiilit! le wniii"' 111 ii'\ ces (II lirnzil. tlie sliiii lieiii"' then under tluit tions iirotectKin. lie i'lirther si low; (ns d oes tli( record) tlint 'the ii;i\iiieiit of the coniiiensiition n\\ tl\ cliiinieil at the tii iiideiiiiiitw though |iroinp for nianx Ncars delaxed." (See \'ol. ;{, 1' lie. W .1- llli. to the Treatx of W ashiiii't ipers rehu- on. oil. ,1 V,\;-')iu). 1 le "oniiiiarv- pi.licial principle to wliicli ^i \olUl(l< ■11 aimer adxci ted. itl ieiiioiistrates as lie how ; mar that case came within tlu- niies where interest should lK'- )Ute liasis for it, set forth in the idaiih The 1 eariieii counsel coiicHules wi ith :-' II J \\\r foil OW'; Wlicrc iiKincvis (luc witlidut iui\' dptiiiitc tiiiioet' |iiiyiiu'iit. anil tlicrc is iki coiitriic I. express or iiii])iit>'l. Iliat interest slnil be paid. Ilie laijilisli rule. iii'lcpciHicni: of statute, is that ii can not lie ciainii'ii. A no he I plotes the rule of the New ^ oi'k judLiineUts, ;is to /'///' II st, as follows: In t'vo actions ajiainst a master ol' a ship t'lir ii(iii(lcli\ cry of {■'(Kids, it was lield in New York that the jury iniulit jjive daiiiaji'es iltlie cimduct of the dereiidant was iinpniiici. i. (>.. wlierc IVaiid ur j^riiss niLsconiiiiet ciiiild he inijuiteil tn him; but, it ap|iearinh rule, ipioted from Sed^'wick. where "It (interest) is imposed to piniish iiej^liLi'ence. tor- tious, or fraiidiileiit conduct." (/;) Till .III ji Ti'iiiti/ ( 'iisi. mill till ii/iiiiiiiii iij SirJiiliii Xiiliiill is I'ltnl. Interest was ^iveii under that treatx ini tlic cliiiins \vlii«'li nnctc tor ^'ilchts Ixdki Jidc i'on- rriictcd hct'orc tlic )i(';icc, still r('maiiiinnl)i('cts] l)\- citizens or iiiliiibitii its of tin' I'liircil Stiites;" hut it wiis |ir(i^i(lc(l tliiit cxi-n tliiit |iro\isioii should not extend to losses occiisioned h\' the inanirest ilchii/, neji'li^ence, or willtu! omission of the clainiiints. As to till' clinins in i'livor of the I'liited States, Sir .John Nicholl reconnnended interest on the a.seer- taineil amount of tlu' "original (ost" of the projx'rty of the (daimants. ()f coiu'se the ori,i>inal cost was a certain basis for the computation; itut it is expressly provided in the treaty iu that case that a recovery shall not he had for losses or damaji'es occasioned l)y the manifest dchti/, etc., of the idaimants. (See for the distinction, Uritish argument, id., p. ')6\ et seip) 'V\h' case at (ieneva radically diiVers from this case, and amonji' other distinctions it is to he observed that, as stated 1)V the Hritish Arbitrator at (Ieneva, Sir Alexsnider ( 'ockburn ((pioted siijira), the ori<;iual list of [)rivate (dainis was "forwarded by Mr. Seward to I\rr. Adams in 1S()(!, iti/d ((iiininiiiicufcd hi/ flir liitfcr fa flic liill'isli (idri'iiniii'iit." (r) Tlic arfiiiiiiiiit of llir Afl<>nii'i/-(iriiir(d nj llir Ihlitrd Stidrs ( 11'///) inidrr tlir Jiiidiiii/ of tli ' Kiiiiinor of Orniiinii/ is I'llrd. it is true that that advo -ate ar<>ued that the rniteil States should have interest in that (•ase as part of the indemnity (daimed l»y that (iov- ernment; but the case is not an authority for (irent Uritain. for the reason that the Commissioners did not aji'ree upon a decision and the result was another su|>])lenientarv convention between the two countries. (See Sir Houmhdl I'alnier's review of the case, siijini.) (il) Tlir ciisr ill J /'. Wdliiniis Hr/i., I'!lki)is r. Ktist Iiidiii Cii., is citi'd. Was not decided on th' jirinciples of international law. 'idle ca.se turned, too, upon the rule that he who 11 s l!l V ^ II 1' ■■ 1 !' 1 DAMAGKS — INTEREST. 145 146 DA.MAGES — INTEREST. t!ik(.< iiiKitlu'r's inoiu'V or Iiis uropcrty and turns it into nioiU'V tor Ins own usi' sluill respond in interest. (See Sir (.'hristoplier Kohinson iuid Wirt, infra.) There is no (|Ui'stion that international hiw does not sanction the allowance of interest. It can only he eharji'cd as "dania<>'es for withholdinji- money which the jiartv on^iht to |»a\ and would not or could not." (I (>|). .Uty. Cen.. ■-'(IS (11'/;/). " Interest is not an int<',i:ral part of a del)t under the (•onunon law ot Mn^iland as accepted in the I'nitiMl States." (Set- '2 Wharton's Dii;'., sec. 2 [6, ami cases; (Jordon r. Ihiited States. 7 Wall., ls8.) In the case of the MoitHjn, where the I'nited States was a claimant a^iainst Colond)ia liefore the Ih'itish Minister as umpire, .") percent interest was disallowed for the followiiit;- reasons. (pipcarance of iiiiiiinhiiiii the ('olomhian iieoplo at larjie for an .at with which very few of tlicm h:id anythiii,ar to do, and whicl. alfected no Colombian interests heyoml those of a few si)ecnlators in levolutions in I'anama, (Vol. (iti, Hrit. and For. State I'aper.s, 1874-75, pi). 4liO-lL'l.) l''inall\- we citi' Sir ("hristopher Kohiiison, who wa.s the reporter of Loi'd Stowell (Sir W. Scott), the ^reat Enulish authorit\- on pnl)lic and private international law, on the (piestion as to whether interest should !)■ allowed to the I'niteil States on the award of the Emperor of Kiissia M^ainst ( ireat Uritaiii. "< Ml thin point see Amci . i . I.iiiii;stiict (10 I'u. St., ll.T). UA.ArA(iES — INTEKEST. 147 'I'lic I'dllowinL;' is liis ii|)iiii(,ii cMllcd toi' 1)\ tlic I^rifisli ( iii\ (•riiiiiciit tm this sii jjcct: 'I'litMiiii'stidii of iiittMest presents 11 (nicstioii ot'cDiisiiicrablo iiii|)(>iliiiicc and doln^acy, and to wliicli it will lie didicult to a]i|ily tliii analofi'v of rules dciisfd lidiii Iej;'al jirocefdinji's, iniit'iii'ndi'Mt of the political considerations, which nniy liave reji'iihited the conduct of tlie power niakinu compensation in tlie part icnhu" case. In tiiat view, it seems to be a reasonable distinction wiiich is raised, that sovereif;n powei's do not usually ]iay interest unless they stipulate so to do. The ol)lij;iitions of (lovernnu'uts for civil injuries are mat- ters of rare occuiTeiice, and deiiend. in form and substance, as much on libeial concessitnis, or on reciprocal en-iajjcnients, as on the intrinsic justice or eipiit.v <»f the claim. I licy (it'v iisiiiillii compensations inaiir on iiiicsliniis in dtmhl. after con- sitlcrahli' iiitrrralu nf time, hi/ irliicli inhrcKt is much inlidtivvil. They are also conipensatimis for the acts of others; for the c,onsc(|uences of error or misundeistandiuf;' rather than of intentional injury, and for cases in which no prolit or ad- vantasi' has accrued to the party by whom such conipeu- sation is made. Considerations of this Iciinl seem to i'e(|uir(> that, if interest is to be paid as i)art of the compensation by treaty, it should l)e nmtter of special arrangement as to anu»unt an- of tlie claims, and not from the date of the capture of the ships. In this case, as it has hi-en shown in the Introduc- tion to this ariiUiiient, (>reat Hritaiu expressly statcil that the circumstances inrc skcIi tjiat the chihiis cmbl, iKit hr iiiiilifcil or j)iisf>/fril, and suj^yested that in lieu of auditinji' and ])resentinu' the claims' at the time a. Connnission should l)e appointed. This sujie or was made, and thi-n ciiitsidrrdfioii icas h// tu/rec- nii-iif, in the stipulate(l tindinjis, a<>'ain postponed. It results that undi-r the law and precedents — (1) Interesl can not be allowed as a matter of right: and ("2) That under no circumstances can interest be allowetl upon values from a date ])rior to the I'aris award, or, as we sulimit, prior to the ascertaiiuneiit of ulie claims l»\' this ( 'ominission. (3) Tliat tlie rate of interest, if allowed at all, can not l»e tixe>()2,S 17.12, iulmitteil to he tlie ex])enses of the British (Joveni- ment in and about a vain apidication to the Supreme Court of tlie I'nited States for a writ of i»rohil)ition to the Federal Court of Alaska in the case o'' the IT. /'. Sdifininl, a fishin;^' schooner worth at the hi<>hest estimate 87,000. It ajjpears by the claim i»resented in behalf of the owners of the schooner that for the costs of till', oiviicys in litifi'ation riiflrc/i/ onfsiilc of this r'i(irf/(',u\iv\i.^ in belial' Of the British Goverinneut, there In a claim for lej^'al expenses and "co.sts" amounting to sl,,SO0. (1) There is nothinj^' referred to this ("ommi.ssion by the (!onveiition under Article I except "claims on account of injuries sustained by pkrsons in whose behalf (Jreat Britain is entitled to claim con)pensa- tion from the Cnited States and arising' by virtue of the Treaty aforesaid, the Award, and the Findings of the said Tribunal of Arl)itration, as also the addi- tional claims specitied in the tilth paragraph of the preand)le hereto." The United Kingdom of (Jreat Britain is not a "person." (2) This is not a claim appearing in the "Findings of tlu> said Tribunal of Arbi^aIion" or an " A(Mitional claim." It did not appear in the schedule of tlie Brit- ish claims, pages 1 to lih'il, discldsini;' ;it jiiijic ."il") of tliiit ('(tuntcr ciisc this idcnticid ciiUMi, which wiis its first attoniptcil jiititcitr- ancc Itctiirc the Pin'is Triliuniil. I'll go !*<•.. \(i\v thv liritish Mr^^'Uiiicnt, here, stntcs th«' t'( I'ol. .'id, )lln\v- nii. Tilt' liicts arc. tlioret'oro, lliat tliis imrticuliir claim was /onuiiliitiil mill jilticiil hil'iiri' Ihv Paris TrihiiiKd. It irtts nut then ()lij(ct(il ti> as (I I'lih' mutter for coiisiilcrtttioii. I Am. i; piiiil, PI 'I'iiis iiuiiin, is il striking;' tTnir. As iippriirs li\- I'riiliKdl -1 of the l';iris 'rriliniial, oil is-m! April 4, IX\)'6, tht- I'liitcd States |irom|)tIv moved to strike ll/is itnii out, on tlie i;rouiid tiiiit it was tendered for tlie first time in fhi- coiniter case, and was not ])ertineiit or relevant by way of reply.* < )n A])ril 7, 1S93, the American counsel, Rfr. Phelps, Vol.ll.Aniii- i n n lit - riiit. p. called the motion uj), and after some discussion li 1 149 Vol. I. III. tweeii counsel ami the arbitrators, it was postpoiierl until April rjtii. On the latter day (April 12th), as aniiears hv J'i'iiltiiiil ;, the consideration of the motion ])oned until such time "as l»v the Triliimal."" diall I lerea fter 1 was post- licatcd )(• 1111 'V\ le arLi'umeiit on th mam ipiestioiis foil oweii Viil. ll.l(l.,p nil. Vol. I, 1,1., p and the next (tllicial act touchinji- this claim, it having;- been desii^nated by the Uritish counsel as a matter of "small imiiortaiice," was on .Mav iU, 1S1I,'{ — I'mlmul ■ 10— w Charle hen the IJritish ( lovernment, fhrouj'-h luissi Sir II, siibmilte(l to the Ariiitrators in writ- ing- tiic (|iiestioiis of fact and claims of (ireat liritaiii as to which a tindimj' was asked, de.sci'ibiu"' the claims as b.-t ween iia: i-es 1 to CO of tlu oriti'inal British case oiil\-. t/ins i.nhiilii/i/ (iiid irilliilriiitiiif) this roiitisliil tic III. It Wiis put In iit tliB L'\ti'fnic tnd of llic roiiiitci' ciis DAMAfiKS- y Sir CliMrles liussell, on August loth t'ollouinji', niaile the Kindini^s of Fiict, and found the claims before them, in res|K'('t of which Findin^i'sof Fact were re(|uired,to ho, nidy those l)ct\ve(Mi paii'cs 1 to (iO inclusive of the c>rij;inal Hritish case, thus formally excluding- this claim l)y the act of the 'rrii)Uiial itself as one vif " hefore" it. The British arynnnent is auain in ei'ror when it >ays there Were no other costs for 7'//r Saiiinird wliicli could i»e referreil to. 'Phe\- have been referred to and stated as amonntinji' to >>l,S(l() in the Uritish ar<>'ument at paye 111, and wen referred to and set out in tlu' (iiif/ii/iil Jirllisli sf the Sai/iranl. (;5) This claim is not an "Additional claim" lim- ited l»y Article 1 of this Convention as specitiecl in the tifth paragraph of the preand)h', and is as ex- pressly e.xcludeil from reference under that head as it is in terms, as above shown, exchnled from the class appearinii' "before the I'aris Tribunal." (4) As to the etfect of the "Ai)pendi\" of (daims attaciicd to tluf ('onvention: The title of that Appendix, as attached to the Con- vention, excludes the co.sts in the Sni/ironf case for tile reasons itefore stated. That title is "Claims sub- mitted to the 'I'ribunal of Arbitration at i'aris." The words "costs in the Sdjiinird case," as mtiv con.strued l)v (treat Britain, are interpolated under that title. It need hanlly l)e arj^ued that such an annex or schedule cannot, in anv case, control the C(mventiou, 80- 152 UAMAGKS — 8AVWAUI* COSTS. or ii«l(l to the ( '(tiivciitioii ;'i Ad. \ i:i., lil-'T (Tiii»lnl,0. .1.): Marl left r. Cibiis, ") M. \ {',.. IKi; Allen r. Flieker, 10 Ad. vV HI., tMO; Hejiina r. Ifnssell, i;! (}. I!., L'.iT; Dean r. (heeii, L. K., s 1'. I)., 79; Clarke /•. (Iraiit, h. li., S Exeh., \ir>2.) ('») Kveii if the matter were not ahsolutely cdu- cluiled oil the (|Uestiou of j'.iiisdietioii, the couusel of tile I'liiteil States are unaware of any priiieiitle, hv which, the lejial expenses of a defeated party, incurred in a case wherein lie has vainly invoked the wronn- judicial jurisdiction for relief, can he allowed liini. The rule is otherwise in a proper case, if the partv has pursiie(l the jiroper jurisdiction hy a])peal. No reclamation can he made a;.;ainst a (lovernmeiit, upon judicial action in its courts, unless the proceed- ino' comi»laiiie(l of has Iteeii sancti(»ned hv the court of last resort in the judicial system of the coimtrv comi)lained of, or there is a /(//((I excuse for the failure to ap|ieal. See cases directly in point under the American and Hritisli ( 'laims ( 'oiiimissioii of 1871 from pp. ss to 141, iiudusive. (\'ol. (i, papers, etc., 'i'reatx' of Wash- iii;.i'ton.) It is not true, as intimated in the Hritisli arji'imieiit, that the a)iplication tor writ of prohihition was a con- sent proceedinji'. It was viji'orously contested hy the I'liited States, and the tififc mho/c of the Secretary of State, referred to in the British. \,r<.;ument, [Ajiril 1)ITI0NAL CLAIMS." jiirisdictiiiii liiis notliini; ti» rest ii|m)Ii. WIicii tlit- Itritisli sliip W'niiliiil ciiiiu* within tin* coiitrnl oC llcr Miijfsty's ship of Will', ill the liiirltoi- of riiiiliiskii, so t'iir iis jiiiy |tn\ ih'^f tVdiii cxtrii-lcmftiriiil seizure wjis coin-eriu'il. it wiis, iis it cniihl In-, Wiiivcd l»\ the iutioii - of the court of Ahiskii on any jiiritlifjil (pifstion. No intt-rnationai court can n-xisc the jiuljjnicnt of the court of a nation, uiih'ss tliat iinl;iiiu'nt Itc l)y tlic coin*t of last resort in its jinhcial system. This rule is estaldisheij as one ot iiiiiversai application, to wliich there ca;* l»e no excep- tion, iinh-ss an a|)peal was prevented. The owners of the Wniifhil vnw not eiitor this iutei- iiational court, witlioiit sliowin<:'aiiiinsuccessfulappeal to thi- hist appelhite jurisdiction in the judicial system of the I'liited States. (See vol. (I, I'apers, etc., Wash- ington Treaty, pp. 88-141), where the authorities are collected and tlu' whole suhject is exhaiistiveh con- sidered and is rejjeatedly passed upon. In this case the point of jurisdiction was not made hy the owner; he, projierly ac«piies<'in;i- in the direction of the coniinander of II. .M. S. McIihiiiiiik; defended on the merits and was condemned, and took no ap- Iteal. Moreover, for the Whiijhil to recover would >e .ijiainst jiuhlic policy. Whatever purp<»se of t'X«"ii.se lu-r distress uiiyht serve, for eiiterin<>' the sea, »\\v was thereafter found actually en<>ji;i-ed in taking Heals in violation of the Imrs of hotli ( treat Mritain and the I'liited States, as is admitted on all sides. 'ADUITIONAI. CLAIMS. 156 TlIK O.SCAK AND IIATTIK CASK. It is tlic sHtlcd rule in surli cast's that Ih>w»'v«t the tiu'ts may turn out, if flu- captor acttMl on reason- able cause of suspicion, daina'^es can not Ite allowetl for tlie seizure, liut in tins case Her Majesty's (Jov- ununent under the dhhIiis rirnitll .set out wliat should he considered the proi)ai)le cause. 'I'his order was adopted in tlu' United States. On the (piestion of probahle ause we cite Tlir Isaln'llii 'riioiii/hsini. Am. and Hrit. .Mixed Com., N'ol. 6, Papers l{elatin;>- toWash- injiton Treaty, p. !t3; I'drifit/m; id., p. !(7 et se(|., and cases cited. .And see />/'. Liisliiiiiflmt in the Liticailr, ■2 Spinks, -inC; Tlir r>fnlw(K ."• Wall, 28, which was hefore the .\m. and Hrit. < 'onnnissioii. vol. (», jiapers, etc.. pp. i;{(:-l.'$!i. In thi.« . ase, imder the iiioi/iis rininli. the Osxir uml lliitfir was turneil over to II. .M. S.}[(l/i ofciistdiiis, w liii liiiil Im'cm ii«l\ is«'(l tliiit slu- liiid <'srii|H'd tVuiii ;i prcviims seizure tliiit liiid Iteeii iiifid*' under tlie ilirertinii 4it" tile I'reiisiuy hepiirtiiH-nt tor iille;;»'d violiitioli ot' tlie liiws ol" tile I'llited Stiites. The revenue eiitter. witlunit dehi\ . towed lier to thi' nearest teh';ii:i|ili st;ition, iit Port Townseiid, ii six lioiirs' run ;ind ;it oiiee i-oiiiniuiiieiite(l with tlie Tretis- ur\ heiuirtineiit sit Wiisliini^toii. wliereU)»oii luT re- h'iise w.is iiniiiedijiteK ordered liy tele^rii|tli. She Wiis detained hut a part ot' one day, and the utmost possihle ex|»edition was used in olitainin^- authoritative instiiietioiis ill reiiiinl to her case. l"'or this act (Jreat |{ritain lirin^i's a elaiin lor "sei/,- iire" and for daiiia;ies tor luture cateh. It need not lie ar;^ued that the ;:eiieral rule is thai all i'oi'eii:!! vessels, and tor this |iur|iose evt-ii ships ol war, are lialtle to \isitatioii tVoni riistoiiis and (jiiar- Jllitiiie oflieeis ot' the nation whose jurisdirtioii tlie\ enter. (See Kakel's llalleck. N'ol. I. p. iMT, not«'S ."> and <;: and see Hall. \>\i. 11 •.')-■_'<•()-•_' (lit. The I'llited States jiave statutes, calleil "hoveriiiii acts," similar to those of (Jnat l>ritaiii, and "ollicers of rext'iiiie cutters are aiithori/.eil to search, examine, and remain on ItoanI all iiicoiiiinji vessels, domestic or foreign, when within 4leaiiUt's, or li' miles, of the coast." (Kev. Stat. T. S., sees. "iTdO-JSCT-JStiS; and see 9 (leo.. II, clia]». .'i5. ) The Kn^ilish law was enacted in 1T3.">; the .Knu'rican a«'t in IT'.IH. The law as to a vessel, that has put into a foreijfU port in distress, is |»erfectly well settletl. Tlu' privi- le;;e of siudi vessel, l>v the coinitx of nations, which in this respect has hecoine international law, is admit- ted to the fullest extent: Itut the exemption does not <>o to the len^ith of ex«dudin;'- reasoiialile quarantine or customs inspections. The detention for customs OUSEHVATIONs AI'PI-YING ONLY TO CKUTAIN CLAIMS. 157 iiis|HTtii»ii iiiiiy Ik' tor a surticiciit tiiiu- to jisr«'rtiiin the i'liiinictcr of tlic ship, :iiiy prott-st or tttlu*r\vis«', the iiu- tlioiitics jiH' nitirh'il to Itr rciisoiuiltlv siitistictl ut" tlic <>oo'e, iiii^Li'ht work tortcitiire of ship ur ear;:<>. There is iiti ihnilit whatever, either, that if the privilcii-c lie elaiiiied. ami the jiood faith of the ••laiiii is fairly doiihted. the (piestinii may lie liroiluht iieftire the eiiiirts (if the nation of the port for trial. The liiinlen of provin;;- the iieeessitv or distiH'ss, which liroiiiiht the ship in, is upon the ship. (The l>iiiini, 7 Wall.. i>."»4: ami sec The ('iijinilidiii ii, 1 ( '. Rol)., -iSK.) In any case, however, the privilcji'c mnst lie as- serted and claimed promptly frnm the antlioritics of the jnrisdietiun in person, or liv a consul of the ships nation: otherwise it does not avail. Ill lllis iilsi, lis llir ('iillllllissiiiiiilf ir'lll Jiiiil nil iij'ii- riirr to tlir lirrOI'il, tlir rlililll imir scl iiji on llir jiilii of this nssil, tliiil slic inis ill .\riili I'tiii/ to " lir lirr rinl- ilif" or otlirnrisr thuii ilistirss, irns nmr iiiinlr to tlir risitiiii/ olliiris i(f 11111/ tiiiir, or hroiii/lif to llii'ir uttnitioti liininillfi or iiiforiiiiillif! On the lon^' I'acitic coast of the rnited States, whi«di is especially «'Xposed at all times to olVenses ajiainst the revenue laws, or. for that matter, on any other of their coasts washed l»y the liij^h seas, the ]iroper ofHct-rs of the customs service may visit a ship and, upon reasonable suspicion as to its charac- ter, detain it for the necessary time to ask for instruc- tions from their (lovernmeiit. Th u riii'lit and the iiractic*' is one of stdf-iirotection. and not one that anv nation can surrender. Til is.' distress theory, and the hill for damages, ori^iinated 158 OBSERVATIONS AI'I'LYINO ONLY TO CERTAIN CLAIMS. with Miinsic, liki* iiiiiiiv other things, l>ut all iinwit- tiii^fly, he did not tit his ]>root's to th»* law rc(|iiii'iii;^ that the tliHtross privih'^c should l>cproiii|itly chiiiiu'd. ill onler t<»t'oriii tivcn a pn'tt'iist' tor his {food hope of avails. Tlir Ithicl; IHaiiiniii/, \<). '), anil Jinms (iintilin, Xo. 11. — 'I'hese rlaiiiis are siilmiitted on the ((iiestioiis raised t>ii the motions to dismiss them, t'oiiiid, respee- tively, at pa<>es 1(!, tol. 60, and 37, lol. 50, of Appen- dix A (the pleadiii;;s) of the IJeeonl. Tliey are treated in the Arf^nmeiit ot'(Jreat Mritaiii as it" siii)mitted 4in the merits, 'I'hev are, however, snhmitted under stipulation found at pa^ic 17 (id.), wherein it is agreed, sul»ject to tli«- sanction of the Commissioners, that thev ma\ lie proeeeiled with tor tlu' purpose of reportin;;- t'a«t> and eoiielusions to the respective (lovernments. I'roviilcd tliat the i|iiv8tioii uf Jiiri.sdiftioii of tlic Coininis sioiuTsniHlertlie Convt'iitioii, in respect of saiil claims, slmll remain antlccidcd, but the < 'omniissioners, in tlieir di.sciH'tioii, may report tlieir opinion on tliati|uestion, counsel intending; t are sulmiitted for su<-h action as the ( 'ommissioneis may fake: and, as liearin;; upon the positions taken in the motion to dismiss, atti'iitioii is invited to those parts of tliisaro-iiment liearino-iipon the intt'i'pretation and scope of the Convention on the ipiestion of juris- diction, and also to the facts as hereinafter analv/.ed. Tlir ( 'inolcHd, Oiiiraril, mid V Imnifon. — It is snhmitted as a matter of law on the facts hereinafter discussed in relation to the schooners ('inolniii, Tlmnitoti, and (hiirani, that tlu' respective owners of those vessels treated the acts of .seizure as constituting: a total loss OHSEKVATIONS Al'l'I.YlNO UNI-Y TO CKKTAIN CLAIMS. 15!» as of till' dnt*' of tlic svernnu'iit»h'»Mn it ot'iiiiportaiiuetotlic good rt'lations wliicli they are ever anxious HJioultl subsist ami be streiijitlieiietl between tin- I'niteil Stales anti (Jreat Itritaiii, that a trienilly and eoMii>let« iiinlerstandin}; slionld be coine to between tlie two (■overiiinents as to the extent of the I'ifjhts whieh Itelon;; to the citizens ot tlie Hnites States and ller Majesty's siiltjects, respectively, with rerereiice to the tisheries on the coasts of ller Majesty's possessions in >iorth America, and as to any other f|iiestions between liieiii which alVect tiie relations of the I'liited States toward those j)ossessions. As the conslderatiiMi of these matters would, however, in volve investigations of a sonunvhat complicated nature, and ns it is very desirable that they shoiihl be thoroughly exam iiied, I am directed by Lord (iranvill«> to p'oposR to the (lov ernment ol'the Tnited States the appointni >ntoi a Joint lii;>li ('omniissioii|Whicli shall be com posed of mei .bers ti>be named by each (iovernment : shall hold its sessioub at Washington, aiid shall treat of and discuss the mode of settling the dif ferent •|iiestions which have arisen out of tfe fisheries, as well as all those which alVect the relations of the ''nited States toward ller Mnjesty's possessions in North America, 1 am conlident that this proposal will be met by your (iovernment in the same cordial spirit of friendslii|) whicli has induced Her Majesty's < iovernment to tender it. and I can not doubt that in that case the result will not fail to Kill I (•oM)i;N8r,i» I'Uorocoi.s (!uiitrilmte to Mu* iiiiiiiitt'iiaiK't' of tlio tnunl ii-latioiis lictwri-n tlu; two iMiiiiitrics. wliirli I jiiii coiix iiict'i^ Mm- (lovvriiiiieiil nt the Uiiiti'il Stiitt's, lis well as tlinl ol' Ik-r .Miijest.v. oi|iiall.v liavc at In-art. I liavi- till' honor to l)c, Willi the lii;;h(>sl consideration, sir, your most oln'iliciit. liiiiiiWle servant. I'iDWAKIl TlKlKNTON. lion. Hamilton Kisii. dv. 161 Mr. h'ixh ((I Sir l-jliriiril TlmriitoH. DKI'AIITMKNT Ol' Statk, Wiixliiinjliiii, •liiiiiiiirii :i(i, />/"'/. SiB; 1 have the honor to ackno\vh'(l;;e the reeeijit of your note of .lanuarv -<>. in which you inform inr. in eoinplianie with insti'uetious Ironi l-Iaii (Irainille. that Her Majesiy's (iovernment ileem it of ini|Mn't'anee to the uood relations which they areevt-r anxious should snl)>ist and be strength- ened lietween the I nited 8tates anil (heat Itrilain, that a friendly and complete ninlerstaudiii}; slioidd he eoiiie to lietween the two (lovernments as to the extent of the rights which lieloii;; to the eiti/ens of the I'liited .states and Her Majesty's suhjeets. respectively, with retereiiee to the lisheiies on the coast of Her Majesty's possessions in North America, and as to any other i|uestions Itetween them which alteet the relations of the Inited States toward those possessions; anil further, that as the eonsideration of these ijuestion: would involve inve.stij;ations of a somewhat com- plicated i.atnre, and as it is very desiialile that they should he thoroughly examined, you are directed by Lord (iranville to projiose to the (iovennneiit of the I'nited States the appointment of a Joint lli<;li Conimi.ssion, which shall be composed of members to be named by each < iovernment. shall hold its sessions at VVashin^fton. and shall treat of and discuss tlie modeof seltliii"; thedilVerent i|uestions thathave arisen out of the lisheries, as well as all those which allect the relations of the I'nited States toward Her .Majesty's jios sessions in North America. i have laid your note before the President, who instructs me to say that he .shares with Her Majesty's (iovernment the appreciation of the imitortance of a friendly and complete understandinK between the two (iovernments with relerence to the subjects specially suggested fin- the consideration of the proposed Joint High Commission, and he fully recog- nizes the friendly sjiirit which has prompted the proposal. i I I; lb: ('»tNi»i:N>i:n i-mtnu oLh. Tilt! I'rt'sitlt'iit is, liowovcr. of tlu- opinion tiiiit, witiioiit tlif iiil.jiistiiifiit (it a class of <|ii«>stioiis not alladiMl to in yom uoti>, tilt' |)ro|i sinrtTf. siiiistaiitial. an «i«'sir«'s slioiihl pi'wail. lie tiiinks that tia- icnioval of tht- tlint-rcncos which arose ilmin;: tlic rclicllion in llic I'nitcil States, and which have t'Nisteil siin'c t lien. ;;i'owin;r out of the aetH coniiiiitteil by the several vessels which have ;;ivcn rise to theclaiins ;;eiieric- ally known as the ■■Alabama" claims, will also be essential to the resloiatioii ol coi'ilial anil amicable relations between tlio two (ioveriiincnts. He ilirccls me to say that slioiilil llcr Majesty's ( ioveriiiiM'iit accept this \ iew of the matter, ami assent that this subject also ma.\ be treated of by the Itroposeil llip;li Comiitission. and may thus be put in tlie way of a llnil and amicable settlement, this (iovernnicnt will, with much pleasure, appoint IlitthComiiiissioiiersoii the part ol the I'liited States, to meet those who iiia,\ be appoiiituil on behalf of llor Majesty's (iovernment, and wil! spare no etlbits to secure, at the earliest practical moment, a just and amicable arranp-meiit of all the questions which now iinfor tiinately stand in the way of an entire and abiding; friend ship between the two nations. I have the homa- to be. with the iii^^hest consideration, sir, your obedient servant, Hamilton Flsii. Sir Kdwai.mi Tiiorntox, A'. V. />'., tie. iSir /-'(hrurd Tlioriitoii to Mr. Finli. Washinutmx, Frhriiari/ 1, Is; I. Sir: I have the honor to acknowledge the leceipt of yoni note of the '(Otii ultimo and to otfer 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 I'lesident thinks that the removal of tlie ditfeieiices which arose during the rebellion in the I'nited States, and which have existed since then, growing out of the acts com- mitted by the several vessels which have given rise to the claims generically known as tin* "Alabama" claims, will also be essential to the restoration of cordial and amicable i^' I oxiii:xsi;i» I'UoKKui.s ivIatioiiH lift WITH the tvMi (iiivcniiiiciits, I liitvi' llio liiiiinr to iiit'iti'Mi yiMi tliiil I lisivc •«iiliiiiilt<-\)H'i-xsfsitsiitisltii'tioii irtliiM-laiiiiN coiiiiiioiily known ity tli<- name of thi' •' .\laliania"«'lainiH nmtc siiUiniltt'il to till- ronsiili'iation of tlic sanu- lliuli Coruii.i.ssjiMi by wliicli Wvv Majt'sty's (lovcinnicnt have pioposcd tinit lln- i|M(>stion.s ri'iatint; to llii' l:riti>li iiosKt'ssionM in North Anionra •^lioiilil l)c (liscnsstMl. |ii'o\'iihMl that all other ciaiiiis, liotli of ISritish snliici'ts and citi/i'UMot' thf liiiti-d States, ari.''in|ront of acts foinniiltcd dni'in;; till' I'l-cfiil civil war in tills count ly, art' similarly rclcrrcd to the same (Joininission. Tlu'c\|»rcs- slons made iiscof in the name of tiie rresidcnt in your above- nlioiicd note, with i'e;;ard to the '■Alaliama" claims, convince me that the (lovernnient of the Inited states will consider it of importance that these causes of dis|iiites between the two countries should also, and at the same time, lie done away with, and that .mhi will enable me to convey to my (iovcrniiicnt the assent of the I'resident to the addition wiiicli they thus propose \o the duties of the lli;;li Coinmis sioii, and which can imt fail to make it more certain that its labors will lead to the removal of all dilfereiiees between the two countries. I have the honor to be. with thu lii{;hest consideration, sir. your most obedient, iiiimble .servant. KllWAKll TiKiUXTON. lion. llAMIl.TdN I'lSlI, ((v. 163 Mr, h'ish til Sir hJihniril Tlionilini, l»K,l'AI!TMKNT Ol" .•^il. Sue I hiivuthe honor to ackiiowled;;e tlie receipt of your note of the 1st instant, in wliieli you inform mo that you arc authorized by Karl (iranville to state that it would j;ive Her Majesty's (iovernment ;;reat satisfaction if the claims eom luoiily known by the iiiinie of the ".Vlubama eliiims,'' were submitted to thucoiiHideration of thesitnio lligii <'oniiiiission liy which Her Majesty's (iovernment have proposed that the questions relating; to the Mritish possessions in North Amer- ica should be discussed, provided that all other claims, both of British subjects uiul citizens of the United States, arising; Ki-I (•itM>i;x>i;ii I'KuitM oi.s. nut tiC iM'ts foiniiiittfil tliiriii;; tlu' if-t-iit civil war in tlii> (■iMiMtrv. art' >iiiiil;ii'l,v ictfirftl to tlic saiiK* ('(iiiiiiiissinii. ' liax'i- liiiil your iiotc Ik'I'imi' tin* I'l'i'siiltMii. aiiil Ik* lia> il.i'i'clt'il iiit< fc( ('\|iii's.-. tilt' salisrartion with wliicli lie lia- I'tTfivi'i) the iiilclli;;i-ii''<' that \'.uv\ tlraiivlllc has aiithiiri/.i'd \iMi to statr that llcr .Maii'st\',s (lovenimciit han aiccpttMl th*' views ot' this 111!' to >a,v. wilii rcrciciic*' lo tht- I't'tiiaiiiili-r of \oiir note, that il' liirio In- other ami ruither elaiiiis oi I'.iilish --iiliicets or of Aiiit'iicaii eiti/eiis ;;i'o\\ in;: out ol'aels eoMiniiiteil ijiiriii;; the recent civil wai' in this comitiy. \w as>«'nls to the iiropiiely oC Ihcif icleience to the sann- ili;;li Coiinnission : lint he sii};;;esis Ihaf llie llii;h <'oin!nissi<)nei> hhall consjilt'i' only such claims of ihis ilesciiption as may be |ii'»'senlei| hy the < iovernincMls of the lespeetive claimants al an eail.N' (la> . lo lie a;:reecl n|ion liy the ('ominissioiiers. I have till' lioiioi' to lie, with '.he lii;;lieMt consiileration. sir. you olicilient servant, Hamilton Fish, Sir ICdwakii TiiuKN'j'oN, A', r. /;.. ili. K.vtniil I'liim I'rulticiil A'.V.VI'/ of cuntmnrv hilirim tin Hii/li Ciinniiissioiit rs tin lliiiini'l of tlir I'liiliil Stiilrs iitnl till lliijh ('ommiKx'nnivi'x III! tlif jnirt of iil Itijiiiiii ami lit'i' I'oliMiifs iliirin;^ (lia( peiiotl InkI ;;ivliti;is in til*' I iiiti'd Stall's wliicli til)' |ic(i|i|i' III till' riiitnl Stati-siliil not (li'sirt- to I'lici'isli tiiwnril tirriit Itiitaiii; tlmt iln liixiiiiii of llir AliiliiliiKi mill nihil- rniisirs irliiili liinl hiiii lilliil mil, or iiriiiiil, or i'i|iii|i|i('il, or wjiji'li liail ri'rrisi'il aii;:MM'iitii tiiiii of iDi'i't' ill tiri'at liiitalii or in li«>r rolnnii's. ami hI' tlii' o|M>i'atiiinH ot'tliiisi' vi'ssi'js, slmwnl rxtriisivi' iliri'i't lo>st'siii tlii* <'a|itiii°t' anil ilrstnirtioii of a lar;:i' iiiiiiilu'i' ol' vi'>.si'i.> with tlit'ir riir;iiu's. anil in lln linirii niiliiiniil i .ifiinililiifi s in llir imiHiiil III III! iriiisiis mill iiiilinil iiijiiiji In lln Innixl'rr It/ II liiiiir piDl of lln .\ nil rirmi iiiniini iriiil iiiai'iin t■ .n In lln rust III' tin irnr iinil tin- sniiini ssinn nf lln iilii llinti ; ,iuil iilsii slioiriil lliiil Un-iil llilliiin. Iiii rnisnn ol I'liilnii in ^In inoiii'i ohsiiiiinii ol' In I- lln Iil s ns ii iniiliill. Iiail lll'i'iH!' ' jllstlv liaMl' li)i tlic arts III' tlitiMMTuiM'is iinil ol tlii'ir t ' •r.s; tiiat tin- riaiiiis for I ill' loss anil lii'stiiii'tioii iit')ii'iviiti- |ii'ii|ii'i't.' \vlii< I, !j; I tliiis {'ill hi'i'ii |ii('si'nt<'il aiiioiiiitt'il toalioiit liniiti'i n mil- lions III' ilollars, without iiit<'i't>st, wliirh amount wh- lialili' to b«< nr«'ail,\ inrn'asi'il Ity i-laints whii'h iniil inx linMi pri' si'nti'il; tiiat lln rosl /« irliii-h lln ".ori-ninnnt Innl l-irn /ml in tin- pni-snit of i-rnisi rs ronlil itisilii hi- nsi-i-rttliiinl hji n rl-'ii-nlis of (lorrrnnnnl iinonnlinii o(fi,ii-K; that in tlio liopi- of an atnii'ahit' si'ttlcnii'iil no I'stiiiiatr was imiili' of tlu> iiKlircct losses, withoiit ini'jnilirc, howi'vcr, to tlii' ri^lit to imlcmnili- I'ation on tlit'ir arrount in tlii' I'veiit of no siit'li si'ttli'iiiciit beiiif; nmdi'. T\n' Anicriraii <'omniissioni'i's fiirtlii'r stati'il that tlu'.v hopi'il tliiit tilt' Itritish ('oiiiinissioneis woulil lieabh' to plaii- upon rt'coril an fxpression of rt'fjri't by llt>r Alaji'sty's (Jov- I'l'iiini-nt for thetlt'inftiations nimniittt'tl by tht'vcsst'ls whose acts were now niiilet iliseiission. Tliey also proposeil that the Joint Ili^fli (omniission shonlil a^ree upon a sum which slioiilil be paiil iiy (ireat ISritaiii to the Uniteil States, in siitisl'aetion of all the elainis iiml the interest thereon. 'i'iie KritishCommissionei's replieil that ller Majesty's dov- I'lnnient eonhl not ailiiiit that tiieat lliitaiii hail lailt'il to (lisi'hai'^fo tiiwani the L'niteil States the ilnties imposeil on her bv the rules of international law. or thai she was justly liable to inake pioil to the I'niteil States the losses iie<;a- sioneil by the acts of tlie ernisers to wliiili the .Vnierieaii i'oiiiiiiissioners hail referreil. They reminileil the Aiiieiieaii CoiiiiiiisHionei'H that sevei'iil vessels, snsiierteil of beiny tie- si^jnt'il to eniise a;;ainst the I'niteil States, iiieliiiliiif; two iron chills, hail been anesteil or tietaineil by the ISritisli i Ui6 t'ONIiKNsr.I) I'HOTlK'OLS. ml (iiiveninioiit, mikI that tliat ( iovt'i'iiinciit li:i«l in si)iii<> instaiici's not «-(niliiH'(l itscir t»t tlio (liseliarjff of international oblijja tions, liowcviT witlely fonstrned, as. lor instance, wlien it ac<|tiii'iMl at a «;ri'at cost to tin' counti'.x' llu' control of tiic Aii;;Io <'liint'sc llotilla, wliicli. it was ai>iii'clii'n(UMi, niiylit he used aj;ainst the liiited States. They added tlitit althon^^h (iieat ilritain had. from the lu'flinnin;;'. disavowed any resjionsihility for the acts of the Alabama and the other vessels, she had alieady shown liei willingness, foi' the sake of the niainteininee of iViemlly fela- ti(Mis with the I Hi ted States, to adopt the, |>i inciple of arbitia tioM, iii'ovided that a littinj; arbitrator conid be found, and that an a};reeinent could be come to as to the points to which arl>itrati(m sluinld apply. They would, therelore, abstain from replying' in detail to the statement of the American ('oininissjoiu'rs, in the hope that the necessity for eiiterinj; upon a len>;thened controversy mijilit Ih> oltviated by the adoption of so fair a mode of setlleuient as that which they were instructed to jtropose: ami they had now to rcjieat, on behall of their (lovcrinnent, the olVer of arbitration. The American ('oinmissioners exju'essed tin-ir rejii-et at this decisi(Ui of the liritisli coniinissioners. ami said turther ilnit they could m>t consent to sulunit the (|Ui'stion of the liability of Her Majesty's (iovernment to arbitration unless the princii)les which slnuild }i<>\ern the arbitrator in the consideration of tUv facts could be lirst agreed upon. The Uritish ('onimissifuiers replied that they Innl m) an thority to auree to a submission of these claims to an arbi trator with instructions as to the principles which should pivern him in the consideration of theui. They said that they should be williii};' to consider what prim-iples should be adopted for observance in future, but that they were of o])inion that the best nuide of (Mtiuluctin^ an arbitration was to submit the facts to the arbitrator, ami leave him free to decide upon them after hearinj; such arguments as might be necessary. The AuH'rican Cominissicuiers replied that they were will ing to consider what principles should be laid down Ibr observ aiiee in similar cases in future, with the uinlerstainl- ing that any jiriniuples that should be agieed upon should be held to be applii'able to the facts in respect to the "Ala bauni"' claims. The Hritish Commissioners replied that they could iu)t admit that there had been any violation of existing j)rim'i- pies of interinitioiml law, and that their instructions did not authorize them to accede to a proposal for layingdown rules lor the fjuidaiu'e of the arbitrator, but that they would make t (DNIlKNSEIt I'IfOTOt'dl.S. known til tlii'ii' (iov«>rnnieiit tlie views of tlic AuHTirnn C'oni- inis.sion«Ms on tlii' siibji'ct. At till' n'SiiectJNC (onfcreiict's on .Miiicli it. March 10, Murcli l-'l, iiixl Miircli II. tlic .loint lli^li Coininissiini coii- sidiM't'd tlu' lorni ol' tlu' ilffliiiatioii of |ii'inci|il('s or rules wliicli the Anii'rii'iiM Coniniissioiifi's ik'sircd to st'o adoptftl lor tlK> instruction ol' the arbitrator and laid down t'oi nh servanc*' by the two (iovernin«>nts in future. At the «"iose of llu' conference of the llth of March the liritish Coiuinissiouers reserved several ijuestions for the con- sideration of their (ioverunient. At the confeience on the oth of April the IWitishCoiuinia sioiuMs stated that they wen- instructed by Her Majesty's (iov«M'nnient to declare that Her Majesty's (iovernnieut could not assent to the proposed rules as a statement of principle!! of international law which were in forceat the time when tlie Alabama claims arose, but that Her Majesty's (io\erunienr. in order to evince its tiesire of sirenfjlheniii}:' the friendly rela- tions between the two countries, and ol inakiu}; satisfactory ])rovision for the future, agreed that in deciding; the ijUestions between the two countries arising out of those claims, the arbitrator should assume that Her Majesty's (iovernnieut hail undertaken to act upon the ])rinci|des set fortii in the rules which the American Commissioners had proitosed. vi/: That a neutral government is Itoiind, lirsl, to use due dili- gence to prevent the tittin;; out. armin}!, or equipping, within its JHrisdiction, of any vessel which it has reasonable };round to believe is intended to cruise or i-arry on war against a power with whiidi it is at peace; and also to use like diligence to jirevont the departure from its Jurisdiction of any vessel iidended to cruise or carry on war as al)ove, such vessel hav iwji been specially adapted, in whole or in part, within suidi Jurisdiction, to warlike use. Secondly. Not to permit or sulVer either belligerent to make use of its ports or waters as the base of inival oiiera- tions against the other, or for the purpose ol the renewal or augmentation of military snpjilies or arms, or the recrnit- nu'ut of men. Thirilly. To exercise due diligence in its own ports or waters, and as to all persons within its jurisdiction, to ju'e- vent any violation of the foregoing obligations and duties. It being a conilitioii of this undertaking that jiese obliga tions should in future be held to be binding interinitionally lietwii-n the two countries. It was also settled that in deciding the matters submitted to him the arbitrator should be governed by the foregoin Uu rule i iiieh li'id Iteen iigrced iipiui as rides to be taken as 168 COXDKNSKll l'R()TO(;(»l,S. ii|ipliciil)le to tlie case, iiiitl liy such principles ol' iiiteriiiitidiial law. nol inconsistent therewith, as tlie ailiilrator simnhl (letcrrnlne to have been applicable to the case. The Joint lliyh Commission then jiroceeded toconsider the form of submission and the manner of constituting; a tribunal of arbitration. At the conferences on the (>th, Stii. i>th, Kith, ami llitli ol A])ril tiie.loint lli<>'li< 'omndssion considered and di.scnssed the form of submission, the manner of the a^^ar\aiiiiiiiiti(»n: He was l»oni in k., i836, line J^ouUon, LiUH'iishin', En^iliUid : thnt ht' l«'t't l''"Jihnul jj *'',';,.,- ^^^^ in isr)4 and came to New York, and has lived in the itoo'i. Ignited States ever sinee; that he went to C'aht'urnia in 1S51', since whieh time he lias continuously resided in the State of ( 'alifornia : that he is a iiritish sub- ject, never havin<>' taken out naturalization papers in America. Warren, testifvin<:' relative to ( 'ooper's residence (Record, 1140, !t41), said: (j. lie is an Ainerican citixeii, is lie not' A. No. Q. Lives in Wan Francisco f H., yio, Hue A. Lives in San Francisco. 67. t). llow lonj; has Cooper lived in San Francisco? A. Well, lie luis lived there a nnniber of years. i}. ile has lived there at)ont twenty-live years, has he not ? A. I think likely. Q. Now, in regard to Mr. Cooper, he is your brother-in- K., 951, line law, is he not? 24. A. Yes. (iJ. lie has been living in San Francisco? A. Yes. Q. You produced the other day a power oi' attorney ot'u., i2t(7, line T. H. Cooper. A similar <|uestion was asked in the 'riiorntoii, «J5. but not in the.se cases. Where does Cooper live? A. San Francisco. Q. llow long has he lived tliere, to your knowledge? He is your brother inlaw, is he not ? u s 22 169 ':f. m 170 TESTIMONY ON RKSIDENCK AND CTTIZENSlin'. A. Vos. I <'X|)ect it iiiH8t b« getting clime on thirty years, Q. Mo yon rtMneuiber the year that he went there? A. No: I )lo not, exactly, only heariug him talk. I think it must have been pretty near thirty years ago since he w«'nt there. ^). 1 >nl you marry his sister, or he yours J A. 1 married his sister. <^. Did he live in San Francisco when you were married? A. Yes. Q. Now, I am going to tind cmt how h>ng ago you were married, < 'aptain. A. 187.!. Q. Was Cooper then living in San FranciseoT A. Yes. (j. And had he been living there tor .some time? A. Vo.s; for several years. Aiidrnr .1. liirhlrl. 'V\\(' jilHiliivit «>t' .Vmln-w ,F. Hcclitcl. si^-iuMl iiinl swoni to ill the city of N'ictoria, on tlw (!tli day ot U., liMtMine.luly, 18 4, was read into tlio IxN'cord on Ixdiidt' of ""• tlic Tnitcd States: I. Andrew .1. Hechtel. of the city of Victoria, in the Prov- ince of Hritish Columbia, hotel keeper, make oath and say as follows: 1st. 1 was born in the State of Ohio, of the Tinted States of Am«Mi'« ^77 1S!K» (incorrectly printed in the Keeord lS!t6, Imt ''^' was clian^-efl. by stipulation, in the lierord, to isfjo). Andrew .]. H«-chtel was called on behalf of Great B.,W5, line i. Hritain : Q. Where do you reside, Mr. Mechtel! A. In Victoria. Q. How long have you resided in Victoria? A. About twenty three years. <^ I believe you are nuirried and settled down here ? A. Yes. i}. And have a family here ? A. Yes. if. Auiv«'ii lt»'ariii<>; upon liis resident*' in Victoria or elsewhere. l{('r('iTin<>- to the rejiistcr ot" tlic ('it// nf Sati /Hcf/ti at tlic port of" San Francisco, the Conunissioncr on 'i»''tiu' part of tlic I'nitcd States said: "That is not a mere declaration of citi/.en.ship, Init it is an act of citizenship on his part." '■'"' William Mnnsie. on cr<»ss-examination: if. Tlieii yon Ixiaylit tlic Sitii IHii/o lor liiiii, diil you J A. XN'cll. lie really i)oiiy;lit licr. hut it was left to us to do the business. 1 believe his boy was ill ut the time, anU he was liviii^r ill Ciilit'oriiia. His iiistruetioiis to us were to l>uy the vessel lor liini. •'»« Tile naturalization papers of Hcchtel when he liecaine a suliject of ( Jreat Ih'itaiu were filed as an cxhiltit and marked Kxliil)it No. I'iS. (J. |{. claim No. 1. if.Mord, 1!)S!), liui' 04. (Kxliil.it, p. 401.) Oath iif allvgiHHve. I, .loliii Andrew lieelitel, better known as Andrew .1. Heehtel, do swear that in the imm-IcmI of ei;;hteen yeiir.s pre- eediufj; thi.s date I have resided eijihteeii years in the Dominion of ('anada with intention to aettle therein, with out liaviii}; been during aueh eighteen years a stated resi- dent of any foreign country. iSo help me God. John Andbkw Lechtkl. Subscribed and sworn to the 7th day of April, 18!>2. The certificate of natur.dization recites in terms that Hcchtel "has duly resided in ("anada for a period of eiohteen years." The riiit«'d States (daim liechtel to have been half owner of fV/ro/c^^mt time of seizure Au^iust 1, iSSfi, half owner of I'tith finder at time of seizure, dulv 211, ISSK, and half owner of J'titlijindrr at time of '"'seizure," .March 2!l, iSiKl. TESTIMONY ON RESIUENCK AND crnZKNSIlIK JhinirlMr/j(iH. 173 It is ill «'vi„"•'"• '"'« not liavinji' consented, .McLean took niit papers deelar- in, he nia(h' an " .:„"*-^- ""* allifhivit in the city of San Francisco, in which he states that he was a natnralizetl American citizen and tliat he resi(h'il in San Francisco. On tlie Sth (hiy of Anj-iist, iSSi), la- ma(h- an aili- (hivit iit \'ictoria, ndatiiiji- to tlie chiim for tlie seizure of tlie 'I'liiiiiiiili .(II the 1 Ith flay <»f .Inly, ISHIt, hy the I'liited States rexcniie cutter in Heriii":' Sea. That I am master and part owner of the Mritish aoliooner 7V/«w(/>//,re}jist»M«Ml at tlie i»ort of Victoria, Iliitish Columbia. Hi', makes no statement as to his residence. On the 'iOtli of Octolier, i>aiiiel .McLean made an H...!''^''' "'"' alfidavit in which he states as follows: 1, the nmleisigned, Daniel McLean, of the city of Nictoiia, ill the rroviiu'cot HritishColunihia, Canada, master mariner, declare as follows: I am a natnral-horn British subject, born at Sidney, Cajte Breton, in the Province of Nova Scotia, and since I took the oath of alk'ffiance to a foreign State — United States — Novem- ber, ISTJt, I did, on the Kith day of October, 1S8(J, take the oath of allegiance to Her Majesty. On the Kith day of Noveinlier, 1S87, McLean niaih' atHdavit at the port of Halifax, Nova Scotia, to olitain the re<>ister of the I'liiiHipli in his name, lie said: T, the uiiderHigned, Daniel McLean, of Victoria, Mritish Columbia, declare as follows: I am a natural born British subject, born at Sydney, iu the county of Cape Breton, and have never taken'the oath of allegiance to any foreign State. a:t. 174 TESTIMONY ON RESIDKNCE AND CITIZENBHIP. ^'s cTn' 3- ''""'^'1 Mcl.t'aii WHS ((wiierof «)iio-tliir(l of Triumph Ex.7(i. 'at time <»t' si'iziire, .lulv 11, 1><81>. Alr.idndcr MiLiaii. He ln'came a nntiii"aliz<;(l citi/.cii of the United JStates by order of tlie circuit court of the United States, district of Massachusetts, on the 1st day of December, 188-J. j{ gj,,, He saiK'd out of tiie port of San Francisco on the Mtnji Ellen in the vear 1883, and was en^iafied as master of the Fdnmiitr at Victoria in the vear 1S84. There is no testimony in the Hecord that Ah'xan- « .... 1. der McLean ever owned anv i)roi)ert\', outsid(> of K., 4:il, line , . , . •,..'..'.• ir ti3. vessel property, in the city ot \ ictoria. lie never had a permanent resith'uce there. Alexander McLean testified on cross-examination: (i>. And where did you go to then; did you live here? A. I lived here (in Victoria) from 1884 until I88{l,and being back and forward between here and San Francisco at times. The slii|)s in the claims in which McLean is inter- ested were tiie Otiininl, seized on the 2d day of Anjiust. 1S8(>, and the FaroKrilc, warned from Herinj'' Sea Auor IS'.K). I ilo not know the date exactly, it was not a new business, but an old e.stablished business. Q. And you have been at it ever since ? A. 1 have been at it ever since. (iJ. And you can not lix the date when you left Victoria for San Francisco. I do not mean to s.iy without returniufj occasionally here? A. 1 returned oH' and on here for a nuiaber of years. Q. Returned for how lonjj ! A. Oh. for a week, or two weeks, or a month at times. i}. ("ould you state approximately the date when this business or store which had been carried on in the name of Gutman & Frank was closed? A. I could not. The only other evidence in the Wecord hearino- upon the (htmieile of .\h'xaiuler Frank is in his aHidavit, printed on paye 210 of I'.xhihits, which was made on ){.. I'Mi, liiiti "jO. \ I 176 TESTIMONY ON RESIDKNCE AND CITI/EN8HIP. the Ist (lay of November, 1H87, at Victoria. IIo said : For two years and upwards oue Jacob Uutiiiaii had, until the date of hiH supposed death hereinafter mentioned, been in partnership with uie in a trade or business carried on by us at cTohnson street, in the said city of Victoria, trading; under tlic name or style of (iutman t^ Frank, as merchants and Indian traders. Till' vt'ssels in wliit-li Alexander Frank is interested as a elainiant are the Alfred Adams, seized on the Kith of duly, 18><7, and tlu^ lilmk IHamoiitl, seized July 11, l8K!t, and the Libi, seized August G, 1881). UNCERTAIN CHARACTER OP SEAL HUNTING. Till- iiictlioil tor n.iii|Mitiii;-' iiii cstiiiiiitcd »-jitcii, |»ru|M.s(M| in tli«'o|i|M>siiiM ArjiUiiM-iit, fakes iiitoiiccuiiiif iiniic t>{' tile roiitiii;>«'iMi«'s which |»n'V»'iit the ii|»|tli«'ii- tinii (it" jiny rule for ciilciiliifiiij: tln' pnihiihh' results of ii sciiliii^i' \r.—T\\i' coiiditioiis liir a successful catch K., ikl'l', liin' iue so iiiaiiy tluit wiiilc ouc vessel inay take a great iiiauy, •^■ aiiotlier with e(|ually as lar;;e a crew may secure only a small iiunilier. Ii ..'uinent to lirieHy review the principal features of seal huntin<;' and point out more in detail the coiitin^iencies and coinlitions olttainin;^ wliicli renio\e it from the tield of safe investment and surround it with the elements of <'liance. Sealing;- as carried on in the years from ISSC to ISIIO, from the ports of Victoria and San Francisco, was necessarily hazanlous and uncertain. The ves- sels emi»loyed were usually small second-hand schooners ran<:iu;«' from 1"> "to l-J") tons hurthen, n s ua 177 ;=J 17H IJNCKKTAIN CHAKACTKH OK SEAL HUNTINd. U.,|iiftti. t)ii>iit' itrolit. never imliinMl capital to invest lar;iely lini':»in tile iiKliistry. 'I'lie perils ol" a Herinji' Sea eniise were reeoji'iiizetl l»y insurers in an inerease ctf tlie preiiiiuin ret|iiire(| tor vessels eleariii;;' tor Alaskan waters, while the speculative character ot" the occu- pation is shown l»\ tln' class ut \essels eii^i'a^i'ed in it. ami also lt\ the niinilter ot sealers who were eiiiployetj upon a "lay:" that is, an allowance ot' a certain |ier cent of the niiiiilier of skins seciireil in lieu of wa;;'es. the crew thus eiiteriiiji' into the speculation nf the owner. These small schooners, leavinji port of N'ictoria in Ajiril. .May. or .Fiine, ina' the latter, in the vears from IHSlI to ISSll. The Itoats used i)\' the whites each contained a hunter armed with ii shot^iun or ritle. ..i' hoth. a "lioat puller," and a "l»oat steerer," tlie latter acting.;' in the i-apacity of another oarsman when not approach- in^i' a seal. When canoes were employed, each was manned liv two Indiiins, one to paddle and the other to strike tlie animal with a castin;'' spear. It is ap- parent tliat wlieii searcliinji- tor seals a l>oat iiad a jfreat advantage over a canoe or a hoat with hut one oarsman, as it po.ssessed twice the propellin*;' power of the latter. When the weather had become siifliciently moili- tied, Ji ve.ssel with white iiunters lowered its iioats. IINCKKTAIN CIIAUACTKH OK sI'.AI. Hir*"nN(». 179 wliicli tiiok tlu'ir ruiirsc to tlic wiinlwmd. flic I iiiiitcrs "■""'*• "'"^ kccpiii;^ II Hlitii-|i liiolxoiit tor tliciiiiiiiiiils, 1111(1. soiiu'tiiiii-s ^idiii^' lOor 1;') iiiiK's in tlicir scnicli. tor tin- lioiits arc ottcii IowciimI wIu'II no scnls iirc in si^lit. When ii sciil \vii« s<'('n,iiiii<-li ilc|K'niliMl upon ilic liinitcr'sfxiicricncf and skii C iiptiiin M.L i-iin in his cxiiniiniition was as kcil as u \Xl liii<< to tlic |iro|»('r wax of a|i|»roarliin;i' a seal, ll«- ri'iilicil, "'riiiit dv. If not killed outri;;ht, the liunler coiitinuepeed whicii precluded pursuit. From the diH'ereiit way in wiiiidi canoes and boats start'.':«», limscan detect the presence of a iiunter at a distance of tiiree or four iiuudreil yards A canoe with Indian iiunters was at a further ilisadvanta<>'e liecause the seals taken l)v it were necessarily "sleepers," as tile use of tile spear necessitated a close approacii to insure a successful cast. The I ndianswiio came from triliesalonii' the west coast of Vancouver Island were ifi'iioraiit and su])erstitious. Several instances appear in the Record (wiiicli wiii lie i^iveii more in detail iiereafter) wiiere a sealinji' voyaji'e was brou<>ht to an aiirupt end throuiili some '''Ysu]ierstition or i^^norant fancy of the Indian iiunters Udi arisin;.;' from the sickness of one of their numlier. tiie ii("r)'"'iiiiV.'"'"* of a canoe, a proioiiji'ed season of rou'j; ' 7.">7. tile stuiiliorn determination t(» return iioiiie, or some Tie" i i ii'i'"^''^''" <'!'iii^t' wliicii only the Indians tiiemseives could 37. explain. Anotiier peculiarity of tiie Indian hunters was tiiat K., 3ns, liii,. rliey were unwiliiiiii' to start seaiiii<>' when tiiere was -2. fo^iuy weatiier. As foys are so freipient in Merinji' Sea, it is apparent tiiat tiiis fear or superstition of tiie Imlians must have teiideil to L;reatly modify tiieir etHcieiicy ami to reduce their value as seal Iiunters when compared with white men. |{., 3(17, 10; line *; m ■«We white ani)f r. s. si-ahnji' and tlie smallne.ss ot the l)»»ats and canoes voi.j, p.iio. used that the weather lu'came an important factor in }^'""J"or ileterminiiifi' the success or failure of the voyajie. <'• it. Am. There is, perhaps, no body of water on the face of s.^Khn." ' the ulobe where the meteorolooical conditions are more unfavorable for fair weather than Merinji' Sea. Foys were of dailv occurrence, and often, as is n., n;n. lino .stated by ('aptain Meyer, the forenoon mi' so den.st! that it was impossible to see the lenjitli of the vessel. The.se toys not only prevented suc- cessful hunting, but l>ecau.se «tf them many boats and canoes were lost. Several instances apj)ear in the K'ecord where hunters were lost, and this 'i. S 182 UNCERTAIN CHARACTEU OK SEAL HUNTING. R.. 380. (i7. R., :vsi. R.. J.-.l, 1.'4. H.. 109K, .. l>o you think it nearly as dillienlt to slioot a seal asleeii on the water as to shoot a duck tiyinji' with a riHe; which (hi you think it wouhl be harder.' A. 1 think about tlie same on tlie water, because you have the double motion, Init 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: theret'on'. I think birds would be tiie hardest of the two. AjiJiin, updii the same snhjert, he says: line If a nnin is not accustomed to a boat or canoe, it is a tick lish thinji'. and a man can't handle a gun very well. The prevalence ot" stormy weather ami chanji'es id wind and I'oiis are anuuiii' the principal contin;:cncies which make seal hunting' uncertain. It is Itut m-ci-s- sary to examine the evidence, where a detailed state- ment of the daily operations of ditl'erent vessels are g-iven, to show how t're(|Uent were the storms which swept across Bering' 8ea, although in many cases the\ were not general, I)ut local in character For exam- liui'ple, tlu' Mm II Kllcii, used as the typical vessel hv (Jreat Britain tor the purpose cit' computin'. was in the Sea forty-two days, and in tliat time had hut fifteen whieli were not too unfavorahle for her l)oats to he used. Tliere is ahundant testimony l)y witnesses pro- duced on l)elialf of fireat Hritaiii tluit a eanoe or hoat is lowered wlu>never tiie weather is such that it ean Hve. It is apparent how imdenient the weatlier iuid iiow rou<>-li the sea nortli of the Ah-ulian chain. 'I'hese conditions also hniited the success of huntin*-' hy liav- inji' a marked influence upon tlie seals themselves. If the weatlu'r was stormy, it was impussiide for the seals to sleep, and if awake all witnesses aiiree that the difficulty of securinji' them was lariich- increaso- period of (piiet weather, when there had heeii opjtortunity to sleep, the seals were restless. .\jiain, if the rain l)ei;'an while the sea was (piiet, thev were arouse'. IIun;i'er is another cause of restlessness, for when seekinji' it« foo' voyajic, autl to place the (piestioii of its protitahleness heyoml legitimate speculation. It is ap|»arent, considering:- the class of men who were employed as seamen and hunters upon sealing' vessels, and especially when the latter were Indians, ignorant and dilHcult of control, that the char- acter and experience of tiie ca])tain became an important factor in (h-termininj:' the success of the cruise. Mutinous, willful, and sui)erstiti<»us, an Indian crew demanded experienced men to man- aji'e them The selection «»f hunters, either Indians or "whites." so important to the success of the voyaji-e, dependecl lar<>ely upon the knowledjic and experience of the master. In Herinj:' Sea his saji'acity in (leterminin<4' from observation whether it was |)robable »»r not that seals were sutHciently abun- dant in the vicinity to warrant the Itoats or can<»es beinji' lowered, was important in determinin,<:' the numl)er of the Ncssel's catch. Another modilication which affected thi- results ol)taine line what IS the condition of seals in tliese laij-e catches; are ^7. they ruiiiiing or asleep.' ' Conditicpii of A. Mostly asleep. >*oalg. . Do yon know of any large catclics beini;- niatle of rnn- ning seals— seals awake, we will say .' "'eti.nes they get away after Won n.i ed ueiiip, .snot. seals. *i». Hven a sleeping seal? A. Yes, sir. <,». And if the .seals are awake, is the distance longer from which yon must shoot? *' A, Ves, sir; but .sometimes you get a chance shot when they are very close to the boat. . That is rather exceptional, is it not? A. Very rare. Q. Now supi>o.se there are an abundance of seals in the sea iit the place where you are, in ycair ship or schooner, does It t()llow that merely because the seals are there voii will get them? •' A. No. sir. (,). Do you know in the matter of scaling whether theDiiliculty of scent ot your approach has anything to do with awakeiiiiiir "PProach. the .seals T " A. Oh, yes. <^ llow far will they scent the approach of a man, in your experience? '' A. They can scent a man or a boat further than tbey can « s 24 I: l]l -J' 186 UNCERTAIN CIIAKACTEK OP SEAL HUNTING. Direction of Q. So tliat ill sipproiicliiiig does the direetion of tlie wind the wiml. i,m,e anything to do with it? A. Yes, sir. Q. And how do you approach, when yon can do it, in huntinfi for seals? A. (ienerall.v approach from tlie leeward. If they aj)- l)roa('h from the windward sometimes they have to take chances. Chnnceoies- (j. vViiat is tlie effect, if they note the ai>proacli of man, '="•"'• upon tlie 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. (), And what average rate will they keep up? A. Well, if they want to, they can go faster tlian a boat. Q. And keep it up all day? A. Not all day; no, sir. (J. Their food supi>ly is lisli, i. . not? A. Yes, sir. <^>. Do you tind tish in their stonnichs? A. Yes, sir. Q. And what sort of tish ? A. Well, there is salmon and ditterent kinds of small. <^>. They catch them in the Sea '! A. Yes. sir. I'roxiinity of i). Now. tlic i)assing of Other boats, and the use of guns, othir ves- whatetl'ect dues that have upon the sciiool, if y(m find theni? *^'''' A. If tliere is nuu'li shooting going on it makes them wilder. (}. If another sliiji has passeil over or shooting is going on they are awakened ' A. Yes, sir: if vessels aic around they get wild. . .And 1 think you have already stated that where they i;\\H'. .„.,. already awakened, and shot at a distance, there is dan- ger of losing tiiem? A. Yes. sir; sometimes they get away from new men after being shot. (i>. And they will sink? A. Well, they get away, and probably they u\;\y die after- wanls. Q. W hat i'tleet has rain upon the seals when you tind where they are — heavy rain ? A. Well, heavy rain disturbs them; it depeiuls on tiie Kain. ■^Wi f the wind cli of luaii, IS <;retty well. Q. Does the awakening of a few of the seals, the distiirb- aiiee of a few, tend to awaken the others? A. Well, that depends on the distance they are apart. (}. Althon^ii a man msiy be a ;io(mI shot at a mark, or shoot- ing game on land, does the <|m-stion of the experience of a man in hunting seals have anything t(» do with the inunber he gets when he finds seals? A. Yes. (i>. In what way? A. In the way lie ap|>roaclies a seal bet'oi'c lie shoots liim. . (iive the rommissioiiers some idea of the way. A. All seals don't act alike; some act different. A man has got to have considerable experience. It takes prob- ably three or four iiiontlis before he understands how to approach a seal ju'operly. ii. And what is tlie proper way, from your experience, to approach a seal ? A. That dejiends on the action of the seal at the time; all seals don't act alike. Some hunters can tell how to ajtproach the seal; they can tell when they see him a certain distance olf whether tliey are going to get near to him to shoot him; tell by his actions whether he is asleep or awake. (i). 80 that determines the distance you will go near hiui? A. Yes. (i>. And of course if you shoot him at a long distance you run the danger of losing him entirely? A. Dependson howyou shoot him. If he isbadly wounded, you may get him. Q. Now, when you are where the seals are, what effect does the weather have ui)on the seals, even if your boats will live in the sea ? A. VYell, if it had been tine weather and the seals were rested pretty well, and if there was bad weather approaching the seals get restless. Q. The coming storm makes them restless? A. Y'es, sir. t). That is a modification of your chances to get seals? A. Y'es, sir. Q. And what is the habit of the seal when he becomes wild before a storm; how does he appear differently when not dis- turbed ? A. Well, he moves. Q. Lias the experience of the captain of a vessel anything to do with the size of the catch for the season ? 187 Proxi.''iity of <>thvrsoal8. Expcrionco of hunter. Shoot in^tlis- taiicc. Weather. f 5i:; I #; W Experience of I'uptaiu. mm 188 UNCERTAIN- CHARACTEK OK SEAL HUNTING. A. That is very hard to say. i}. The oxporii'iice of thf t-aptaiii in sealinj;? A. I do not wish to stale tliat. Q. Is tiiat hi'caiise of your modesty ? A. No; 1 have been at sea a good deal (). Itnt I would like to know. Let nie see; has the eai*- tain's judjiiiient. lieeause of his experience in seal huntinjj, anything to do with the way the vessel should approach the seal herd ? A. It has; he will ha *e the vessel jjroperly equipped and a good crew of men aboard. Q. lias tile st'lectiiin of the (irew anything to do with it? A. It has a yreat deal. Cniifiiiii Haviior's tt'stiiuoiiy is as follows: R., 521. line A. No particular jiart; wherever I found seals. i). Did vou }i() sometimes to the westward of the Pribilof Islands? .V. Yes; sometimes to the westward and sometimes to the eastward. (,>. To tiie north? A. No: to the northeast end, not to the north exactly. (). And to tiie south? A. Yes. Chauro in 'i*' I'roni your experience in the .sea, Will you State whether 11 n (I i n jtyiiu did linil. in IS,S7-SS. that the seals were to be found in seals. the siime place tiiat you had foniul them in ISSti? A. No. sii': the.\ were not; I never found successive years that I found seals in the same pl;ice. (i». In looking- for seals out there you have to take your vessel around various i>arts of the sea to come across a bunch of seals.' A. Yes. Conilitloii i)f *)■ You do not hunt seals in herds, do you? They are Moals. found in small bunches, are they not? A. Mostly; 1 found them by two or three at a time. (i>. There is ini such thinj;' as running across thousands of .seals ami being able to kill any number of them in a short time ? A. No. sir; 1 never found it so. Q. Seals are hunted individually more than collectively, are they not? A. Yes, sir. Proximity of Q. And they are found in bunches of two and three and of otherse-ils. bunches often and eleven together? H ; 1 UNCERTAIN CHARACTER OF .SEAL HUNTING. 189 A, Sometimes you see them in hwjm bun(!iie.s. Q. Hilt tiiey are geiienilly uwake, aud you can not aet to tueni ; A. Tliey liave what we call lookouts, and are on auaid when in herds. Q. NVhen .seals are awake, it is harder to ai)proacli them, DiftUulty of and, of cour.se, harder to kill them? aiiiiroacb. A. Ves, sir. Q. The majority of seals are shot when they are a.sleen.are they *. A, Ves, sir. Q. Now, to enter into tlie matter of taking .seals, what are the eonditions which would modify the number which can be killed? A. Well, the state of the weather. If it is raining or strong Weather wimls or anything of that kind, the seals do not sleep very well; and in a strong breeze of wind you can not get on to them. (^ Do they scent you ? A. If you get to the windward of a .sciil, tiiey scent you at Dheotion of a h)ng distance. wimi. (}. Fov that rea.s(in it is better to apinoacih the seals from the lee side ? A. Ves; from the ieeward, when tlie wind is blowing from the seal to the hunter. (). What otiier condition niodilics tlie result wiien seal hunting? A. Well, a great deal depends on how the hunter decides Ex]Hii..iM.. to get at the .seal. of Imntrr. (}. Docs the experience of a master have anything to do KxiMTioiicr ^vlth It? ■ oicaptiiiii. A. Yes, sir. (). Kxplain to the romnii.ssloners why tliat enters into the modihcation of the result in seal catching. A. Well, the master has to do with looking tiie seals up. and. after he sees them, keei)ing his vessel in position and sending the boats in a certain direction, and so on. (}. Has the matter of handling a crew and .selecting a crew anything to do with it ? A. Ye.s, sir; it has a great deal to do with it— whether you get a good crew or a bad crew. (}. Captain Ogilvie had never been in the Sea before, as far as you know? A. As far as I know, he had never been in the Bering Sea before. U. Seal ng; A. Nor never did any sealing there, as far as I know. 11)0 INCERTAIN CHAKACTEK OF SEAL HUNTING. I'nixiiiiit.v of (^. Till' iineHtioii as to whether or not there are si'veriil oibcr vos- vessels in a jjuoil locality, has that anything to do with the '•^''" result! A, Ves, sir, of coiirse; the more boats there are around, eitiier with shooting or witii sjtears, it wakes the seals and keeps them moving, and you would not get as nniny as it' you were alone. C li nnco of ^), A seal can travel taster than a man could row in a boat esiaiic. ,„, ^imj a canoe could paddle? A. Yes, sir. (i. Or even taster than an ordinary vessel with an ordi- nary wind coidd travel after them? A. Yes, sir. <.}. And they could keep up that rapidity of movement for such a long time as to escape their pursuers, could they not? A. Yes, sir. ij. Have you observed what the seals feed upon? .V. Yes, sir; they feed most upon tish and sipiids and shrimps in ditVerent localities. . These tish travel trom one i)art of the sea to the other in the same season '! A. No, sir; the fish .shifts, and also the seals shift with them. Q. That is what I asked you; 1 asked if they travel after the tisii ; A. Yes, sir. i). From your experience of your three years in the ISering Sea. do you think that you would ite able to estimate the numlter of skins that a vessel would take in the year I.S87 going into Bering Sea? .\. Xo, sir; 1 do not. ("aptiiiii Miller in Iiis exjiniiiiiitioii iiwuU' the follow- iuji' statciiu'iits: R., 538, line . „ , . , . , .. , ,. , 43. '^ Now, when ycm went into the sea in the rcndope, did you come upon large number of seals at times ? A. You mean in sight from the vessel? (I Yes. A. I suppose 1 have seen bunches of 20 or 2.5 seals. . . Q. And in your boats ? irndliiK -^' I 'lave seen the same bunches laying around. We do seals. not estimate the number of seals around by one bunch. We used to run across theni. Q. One bunch would indicate that there were other bunches uear? A. Ye.s, .sir; on the feeding ground of seals. 'i ^ . UNCKRTAIN CHARACTER OF .SEAL HUNTlNCi. l!tl Q- 1><> you find it to occur as an onliuiiry or exceptional t'o nil it ion occurrence, that wiien tiiere are abundant seals on the "' "•"''i'- grounds you sonietiincs can lutt get them? A. 1 iiavc seen that so. I have seen it more ditllcult to get them when tiiere was an abundance of seals than when they were mor»! scattered. <^ You could kill in a segregated bunch easier than youi'roximity could in a large bunch? <>f other A. Yes, sir. *"">'"• I}. What is the ditliculty about that? A. They do not sleep wiien they are together. . They are disposed to play? A. Yes, sir. (}. And when awai;e is it less easy to get them ? A. It is very nuu;h nioie dilticuU to get them. (}. Is tiiere any lariier proportion ol" seals lost al'ter being ciianct' of sliot when they are awaiie? escape. A. Yes. sir: of awake seals a large pn»i)ortioii are lost. Q. VYhy isthat? A. Because they arc stan "'"''" the front while looking at you. Tliey fail on their back then, '"^'' and I understand that the air comes out of their body, and they sink tail first. (j. And go out of sight and are lost? A. Yes. <}. They don't come up again ? A. I never knew of one to conic up; a dead seal will sink like a stone. <^. Y(>ii never knew (if one to come up? A. I always understood it tliat way. Wlien the wind is out of tlieiii tliey go down like a stone, lint if tliey are shot from the back they float (piite a while. i}. And they are shot Irom the back when asleep? Yes, sir. 1 as they are awake tlu'v "i"''""> , "'' apiiriiiicli. time if they know yon are A. *}. usua A. When you approach thei ly aie fronting you? Yes; because most of the aiiout they try to look at you. (,>. I>o the seals sceiir a man ? A. Yes, sir. Q. At what distance? A. I think at an extraordinary distance. (}. Itevond the sight of the vessel ? A. Olu no, sir; but I should think at least 300 or 400 yards. l>>re;n>at deal on the nnin who shoots them. C'tiiiiu « of If, Do you shoot them at some distance when they are limi "«• awake A. If you shoot them at a lon^ *li>*ltinec, I think fully half would he lost. «.>. I'uliy lialff A. Ves. sir; that is, when we kill at a loiiu distance. .'I. lillr i). Now. Captain Minei', will you please state whether the .Stals awak- liriuif of the ;;nns will awaken the seals.' eueil. A, It iloes very much: yes. sir. (j. Does it tend to make thern wild! A. Ves. sir. (}. And do they run from the slii)) or from the boats when the fjuns lie^in to tire .' A. I'hey ^et away from the l»oat that is tiring as fast a.s they (tan. (I. .\m\ they can n'i> faster than a boat can be i)ulled by an oarsman, can they not? .V. Ves. sir. i). So that the ^uns awaken them, and the seals that are near enoufih to hear the <;uns. to be fri}jhtcned by them, make way. AtmoHphiTic A. 1 think atmospheric chan^jes have a yreat deal to do cliniijtos. ^j(|, i( Sonu' days they apparently sleep vciy soundly, do not awake easily, and others they are very easily disturbed. (}. And then they are restive and run .' A. \ery. (), An(i yet away? A. As soon as they can. . Now, is it a fact that, takin}*- the season of July and Aujiust, you net a very small i)ro|iortion of the seals you .see, takinj; the sealing season from beginning; to end ? Skill of hun- A. Ve<, sir; there is a f;reat ditlerence in dilVerent men who teis. hunt ab( lit that. 1 have carried men with uw who I don't think w riaUi average one in ten of what they saw; other men would gci, nine out of every ten that they saw. Q. V' !i ;, oursclf larely lose a seal when yon get alter him? A. li 1 get close emiugli to shoot him. (^. Vou usually get a seal when yti('ed .1 great nniny instaiiccB when tliere are a great nnniy seals in sij;lit in dilferent places; have seen them eveiy few minutes; and when a light lireeze sprang np tliere was not a setti to be seen. (^ And of all those seals in sight yon wonid get no more? A. Yes, sir; they disajipeared. (i>. Aiiii Inive yon noticed that a heavy rain will awaken Uuiu. seals f A. Yes, sir; they will not sleep at all in a heavy rain; they will roll and play. (). VVhiit are the cliam-es of getting seals in sight when they are in that condition' A. The chances are against getting them; one has to work very cautionsly. (}. So that the large catches are nmde of the sleeping seals? A. The largest catclies are made in c;ilm weather of sleei)- ing seals. (.f. Whiit inive you to .say, Taptiun Miner, as to this prop- <•)"»<• p of osition f You seal in Bering Sea at a given jioint of latitu«lo ' j " '' ' " f'' and longitude on the Sth of 'Inly, we will say, l.s.Sd, and you """ *" find seals in plenty and good hniding. Docs it follow that you will tind seals at the sann' season of the year another year in the same latitude and longitude? A. No, sir, it doesn't. Mr. Alcxaiuk'r, whoso iiivcstiojitioii relative to tisli- iu»''t- tin> ,.j,|,t.,j|, jii,,! tlio executive ability in ie>riu'(l to handling crews, piirliritliu-lji tlioxr iikhIv up of Imlions, and the (;hances uf catchinnK them when t'ou'id. I mean ol' lindin;;' seals, and of reniainin;;' ainou^ tlu>ni when touiid. I'loxiiiiity . And what would you consider favorable weather for sealing. A. l'"avorablc weather would be clear, or a comparatively sky and a smooth sea and a y:cntle or a very moderat* brcc/e. sets. Wcatlier. or a very . Does the weather previous to a elear spell attect tlui eatcii :' A. Yes. sir. (i. Ivxphiin that, please. A. l'\)r illustration, there has i»een a j;<)od deal of wiinl blowinji' in any dii'ection for three or four daxs. an very sonmlly. and possibly will not sleep at all uidess they have been tired out l)y jirevions exhaustion by a series of ;:'ales. sometliin<; which has interrn])ted their sleep, but in cases where they have l)een interrupted by wind ami weather they will sleep uiuler conditions which they woidd not other- wise do. (j». That is a fact. Mr. .\iexander,is it m)t,that notoidy the weather ol' the day on which a loweriuf; is made alfeets a catch, but also the weather that has p)'e\iously been bad '. A. N'es, sir. (,>. And what woidd you cinisider unfavorable weatluT for seaiiii};, beside the mere fact of bcinp; unable to lower your boat on account of rouuli water? A. Well, at tinu's very fo;;};y weather interferes with the loweiiu}; of the boat, ami sometimes heavy rain will inter- fere; that is, it won't interfere with the lowerinfjol the boat, bnt the chances tire unfavorable for ber of days whicii I have nuMitioned; and nearly all the time, if not (piiteall the time, two deforces .south, or two and a half, as the case may be, . Wiiat wduhl you say as to tlu^ uuuiber of vessels in a other ves- t-ertaiii locality alVectin}' the catcli ? *® '■' A. 1 shouhi tiiink tiiat a larj-c number of vessels in a locality where seals were fairly abundant would have a ten- dencv to lessen the individual catcii. <^>.\Vhy? A. Itecansc seals arc very timid, and the more boats there are on a jiivcn {ground covering a small or laijic area, as the case nniy be, would have a tendenc-y to friniiten thcni on wliicli the pr liiable catch of a vessel for a given iieriod of timecou''l be predicated .' A. I do in)t. (). In connection with your duties on the fish ("ommission, have you studied the habits of migratory tish in Bering 8ea that you have s[ioken of? A. Ves, sir. (>. 10, ,■>(», or. when a rille is used, even KM) yards from the hunter. I'our other conditions also modify this possibility of loss: First, the state of the weather. f(U' if the water is rough the R., 27H, lini UNCEKTAIN iHAKACTKK OK SEAL HUNTING. boat and the seal liaviD^' more motion the ])erortion of its head exposed as a mark; third, the skill of the Imiiter is also to be considered; and, fourth, whctlier or not the sesiis are wild and hard to approach, in which case the hnnter is from necessity compelled to liie at lonj; ranye. A second citiition tVom the siiiiic (lociiiiicnt trciits of the (litlirultv of securing;' tlic aiiimiil jiftcr it Iwis beoii killcil. 197 liesides those lost by woiindinj;'. in many cases otliers K., i'73, line killed outright arc not taken, because the specilic !.;ra\ity of '''■ the seal lieing' greater than water, it sinks before it can be secured. In order to sa\'e as many sinkinj;' seals as possible, each boat carries a jratf with a handle from four to six feet lonj;', with which to >;rapi)le the carcass, if the point where it sank can l)e reached in time to do so. Of course, in secur- ing a sinkinj;' seal much depeiuls on the distance from which the seal was shot, the condition of the water, wliether roufrh or smooth, and wliether or nut daikened by the blood of the animal, as also the skill of the hunter in marking' with his eye the i)la<'e where the seal sank, it can therefore Ite seen tliat the ran>;eof jjossihle and probable loss, in case the seal is killed outiiKht, is certainly larj;*', tlKui}-'!! not so great as when the seal is wounded. The iil»o\t' citiitioiis relate |iai'ticiilarl\ to the e\|ie- rieuce id' tlie liimter, and tlie tollowiiiii' testimony is ii|ioii the same siilijeet. Williiim r. liiaoji'. eaUed on luduilf of (ireat Hritaiii, testified : i). Now. witness, does it make any dilference about the '(.-'(k), Hnoti. catch of a vessel, the capacity, and experience of the hunters .' A. It does, <^. What other contingencies are there, witness, that youK,, I'tiri, line know of, that would nnike a dilference in results of one ^^^ hunter as against another, or of one boat as against another? A, 1 do not understaiul your ipiestion, Q. What facts that yon kiniw of arise, which make a dif ference in the catch of om- boat as compared with another, except the .scarcity or plentifnlness of seals? 198 UNCERTAIN CHARACTEK OF SiKAL Ht'NTING. R.. 2!!8. 39. H., ■i2~. 65. lino A. Well, some hunters are 8uperi(»r to others, and tlien, apiin, it depends on your boat'.s erew. Q. Vour ves-sePs crew, you mean ? A. The crew of the boat. Q. Of the small boat? A. Of the small boat; yes, sir. if. What do you mean by that? What would, depend upon the crew, as to whetiier they could reach the seal or not after it was shot? A. It is in chasing a cripiile, or in getting over nmre ground. A good crew can get over more ground in a day than a poor crew, and the more ground you go over the more seals you are liable to get. .1. I>. WiUTcii testitii'tl iis follows: lino i}. Does the result of the sealing voyage depend, to any extent, on the experience of the huntersf A. Oh, yes. Ciiptiiiii .McKit'l, tcstilit'd : - ill ivii'jinl to tin- Mar// i'JIcii in 1S86, stated: .jt. Do results depend any on the capacity of the master |{., 265, line of a vessel as to his experieime in the manner of locatinj;? •"'-■ A. It does. Q. Ami the Captain of your vessel. Daniel McLean, was one of the most exjierienced men in the business? A. lie was. Captaiii Maker said that the skill ul' tin- caiitain ini^v,-'^^' ""'' some de<;Tee entered into the |)rolial)ilities ot" a catch in Hei'iiiii' '"^ea. ('apt. ('. X. Cox ji'avi' tlie I'ollowiiij:- testimony: Q. Is it notafact, Captain, that a inau's skill as a captain ".J"'**' ''"" aiul his reputation depend on the success lie lias in haiidliny' his crew (if hunters and seamen '. A. Oh. yes; to a I'ertain extent it dues. . And by handling' his crew with success, you mean man- aging them so that vou can get the best results? A. Yes. (i. You were asked by Mr. Warren as to whether there I>'m"'1-- 1'"«< was uot a good deal of luck in this matter, and iiarticularly "■*■ whether there was not a good deal dejiended on the way the captain handled his ineii, and you said there was. A. \'es, sir. Q. Assuming that you have a cajitaiu who knows how to handle his men. there is not much chance about it. is there? A. I consider the chances are whether the captain stays among them and gets them or not. Q. If you once find seals the captain's duty is to keeji ainniig them ? A. Yes, sir. iii'ini' 200 UNCERTAIN CHARACTKR OF SEAL HUNTING. R., fil3, 19. Q. And if you do that is there much chance about itf A. No chance whatever. Q. Wliy? A. If you stay amou^thcin you will get them. A portion of tliis extract is citt'd in tlie Arf^unicnt on l)i'liiilt" of Great Britain to establish the eertaintv of sefurinji' seals. It is needless to say, in connec- tion witli the witness's statement that the seals arc found "scattered aljout," and "three or four, or two" to;ietlier, "very often one,'' that the chances he refers to are sufficiently numerous to make the i»rohal)lc siu'cess of sidjf'ntii diiioiif/ fliriii \ erv uncertain. 'i'he capacity of the huntin;>' power of a canoe de- pends in a measure upon the mnid)er of skilled hunt- ers it contains. I'pon this sul)ject .1 D. AVarreu testitied as follows: K., 1.'80, '2i. line . And how many of them liunted ' A. There were not always two huntei's; sometimes there was merely a canoe stcercr and an e.xi)erienced Indian hunter. Sometimes there would be two expericiu-ed hunters in tiie canoe. t}. How many, all told, in the canoe? .\. Two. Sometimes they would be both exiierienced hunters, and one would i)addle and the other one wotdd strike (spear) the seal, or sometimes they would both strike the >*"al. Q. And ai'tually hunting in each canoe, how many were there ;' A. Two. Q. Hut you say that oue had to paddle and mauage the canoe? A. Well, sometimes, if they came on two seals, both would strike. ^i. Ibit, as a rule, one was to manage the canoe and the other to hunt or strike the seal '. A. Yes. (^ 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 spearsnu'u. in some insti;!'.ces ;>-uns were used by Indian hiuiters. yet it appears from the evidence <;iven Althouo'li UNCERTAIN CHARACTER UK ith of August. Q. Wliy did you leave on the 14th or 15th of August? A. VVell, Indians wanted to go home. Q. Did they object to remaining any longer? A. They were afraid, I think. Tiiey objected to staying any longer. Q. They were not used to going to Bering Sea, I sup- pose ? A. No, sir. Ag-ain, at another place in his examination, the same witness said: The Indians don't go out in foggy weather. ^ 30^ uye • * * * « 1'3. Q. Is it not a fact that before you came out it was blowing u., 310 uno pretty hard, and that was the reason tlie Indians wanted to 30. ' get away? A. Yes; the weather commenced to be a little bad. Q. Are not the linlians very superstitious? B s- li(i 202 UNCERTAIN- CHARACTER OF SEAL HUNTING. K., 757, 35. A, Yes; tliey are as a general rule. Ij. And if tliey want to go away do the captains have to got A. Yes; to humor them. It is of n<» use to go against thcni. Q. Is it not a faetthat the .season was practically ended on the 15th August that year? A, If we haeneral ([uestion of the (liHicnlties to he met by a captain wlio lias em- ployed Indian hunters, he testified: K., 7G2, line Q. An Indian is usua''y ready when he is ott' sealing to 37. make what money he can, is he not? A. Yes, sii'; when he is out tliere, but wiien they take a notion in tiieir heads money won't stand in the way. Q, The only notion you know they took in their heads was they wanted to go home because of dirty weather' A. Well, as I say, there was one sick Indian aboard ; the Indians were all afraid he would die and be a sort of Jonah. 'I UNCKRTAIN CHAHACTKR OF SEAL IlL'NTINa. 203 (.i. Tliey are superstitiinis iibdut that, are tliey not? A. Very. The cuiulition of tlio seals as art'octiuj^' tli(> results of a voyjvge are referred to by several witnesses. Aiiiony jj. 608 line them (J. N. Cox f>ave the follo\vinwer very often and we don't see seals at all. Wheu the day is tine enough to put our boats out we lower whether we see seals or not, when we consider we are on the ground for seals. After referring;' to a sinj^le instance when he saw a larf>e body of seals off the ('olnml)ia Kiver, the wit- ness was asked: (i. You never saw any in r>ering Sea in such crowds as U., 608, Hue them * «o. A. I have seen quite a number of seals from the vessel, but I don't know that we ever lowered expressly for that purpose. (}. 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 1 \: ^o, sir. (i. They take them uj) separately ? A. Yes; one and two together — three. Ajiuin, refeiTin;^' to the way in which the huntinji' is done, the witness <^iive testimony: (J. They |the canoes] circulate about the boat, and when K.,t>0' lino3. they find a seal sleeping, traveling, or breeidiing, whatever lie may be doing, they kill it. A. Yes. sir. Q. Then they go searching for another? A. Yes, sir. Q. It is a fact, is it not, that when there are a large num- ber of seals traveling together, tUey have seals on the edge of the herd that keep au outlook, and it is very hard to approach them ? mi 204 UNCKBTAIN CHARACTER OF HEAL HUNTING. A. Ves; when tbey are sleeping, a laryc number toyfther, they arc iniit-h iiinruditticult together than if sleeping singly. (j. Then it is a tact that if they are more abundant in the neighborhood of the vessel it is harder to get them ? A. I do not think so. l}. VVMicre there is a large bunch of seals asleep they always have outlookcrs f A. There is generally otie or two awake. Q. Tliey make a noise and others are aroused i A. Yes, sir. Upon asked: his rt'direct exainiiiittion tlie witiu-ss was H., out, liii« (}. Do seals herd together, as Mr. Warren suggests! 1. A. I have never seen them that way. K. 6ia line *^ Coming baek to the iioint about the seals being all in a 12. ' herd together, is that the case at all in the months of July, August, and September? A. I liave never seen them in that way. Q. How do you tind the seals then ? A. Scattered about. Q. On certain grounds? A. I seldom find them on the same grounds. Q. llow many will you find together, as a rule? A. Three or four, two, very often one. Q. And this idea of large herds with watchmen to keep the pelagic sealer oft", is there any of that kiiul in Bering Sea? A. Not in my experience. K., 613, Hue Q. l)i«l you ever meet a mass containing as many as 25 81* seals close together in Hering Sea at once? A. No. sir. Q. You meet them in scattered numbers ♦ A. Y'es, sir. Tliniiiiis 11. lirowii, s\v(Uii on Ix'lialt" of (ireat Mrit- ain, on cn-ss-cxaniination was aski'd it' he lia I see; probably not one out of a hiuidred. LNCERTAIN CHABACTKK OF SEAL HUNTING. 20i) ('apt. \V. K. Bilker, tt'stifyiiifi' as to the iiKxliHca-i'-.-.J^K, line tioiis wliicli cuter into the eatcli in Herinji' Sea, stated tluit "tlie seals are wilder .sometimes tlian at other tunes.'' (Jiddinir ('. (Jerow testified: You may be amongst lots of seals and not kill any. His examination also contains the tollowin"*: K.. 149!(, line 15. Q. You were going to tell us that there were many .seals i;., uitg, line around the boat and that you could not get any. What -'• observation have you to make about that? A. I was merely going to say that you might be in sight of hundreds of seals and you could not jjossibly get one. Q. Whyt A. On acicount of the wind, and on account of, sometimes, their traveling; and you may see thousands of them and you can not get a seal. Q. There may be seals all about you and you could not get any of tliem t A. Yes. The importance of the weather in determiniu''- the success of huntinji' in Herinji' Sea is referred to liy several witnesses. Alexander lleppeii, already cited, testified as follows upon this suhjeOt: Q. While you were in the sea were there many calm daysf ]{., 310, Hue (S. A. Not very numy. H-: 311, line Q. Did you have worse weather [in August] than you did •'"• in .Fulv? A. Yes. Q. Did your sealing end about the 10th of August? A. About that time I think. Q. Y'^ou went out of the sea on the loth of Augusts A. Ye.s. Q. Y'ou stated that you were there several days waiting for I weather, did you not! goodi A. Yes. Q. And the good weather did not come? 20Ci UNCERTAIN ('HAKACTEK OF SEAL HUNTINU. A. No. (}. So vou went «)iit of tilt' sen f A, Yi's. (;. It was hail weather; that was the chiel' reason why you left the seaT A. Yes, Tlio witiu'ss, ('. N. Cox, to whom rctbronco has been niiulo, was asked: W.,_OOS, liiip (}. Vou (lirevail in tlu-si' waters, is evidoui'i' relatinji" to the I'oninioii occnrrcncc of tlii' hiss of i-anoi's wliilo luintin<>'. H.,_7n(i, litK' Captain Laiijililin Mi'Li'an said tiiat hi' > ''od up fonr caiini's which had Iti'i'ii h)st fro 'otlior vi'ssi'I. K.. tj"i, lino Captain Mrlvii'l tt'stirti'd that •UuMnj'' his V(»va<;o in ISSII hi' h)st three eanoes al)ont tlu' liUli of Aujj'ust. He was asked, "Was that with tlie men in tliem, or did tliey simply <^i> adrift .'" and re})lied: "The men .vent a,iiiif3. (Justav Hansen stated that dnnn<>' tiie ernise of the Allele in 18SS he lost a eanoe and spent a week searchinji' f(.r it, and that lie was cnmpelled for this reason to cease luintiiifi'. Captain W. K. IJaker, asked as to the continf^oncies K., 72S. linewliich enter ii\to the lunnher of seals taken, stated, -^" "The weather for one thinj:'." (J. And rain? A. Wind and weather. i). And log; 1 suppose you will include that? A. Yes, sir. UNCKRTAIN ClIAKACTKk OF 8EA1. HUNTING. 207 J. I). Wiirrcii, iiftcr listuiiiii";- to tlic tctstiiuoiiy of the witness Hrii^iy rcliitiii;; tn 1H8(!, was asked: Q. Dill you hear the testimony of tUo witness Ciiptaiii n, 2si, iinv lira^i};, this inorniii}?, iTKurdiiifj the days in tliat year wlien ■' it was iin|Missil)li' to do any sealing' A, Yes, I lieard iiim name bad days tor him, when 1 Imd good sealing (hiys, IJelatiii;;' tn tin- cliauce of iiiifliii};' seals in altuii- (liincc, tlie witness Alexander Heppen testitiod: (}. Are the seals thieker in one quarter than in anotlier ?(;., :ii(», line A. No. r,\. (j. It. just happens that you run across a number of seals, and stay there for awhile? A. Yes, sir. l}. And then you go sixty or seventy miles in another direction :' A. Yes, sir. Q. And then lie to and send out your canoes? A. Yes, .sir. Q, And then you stay there a day'? A. Yes, sir. i). And if the seals are thick you stay there two days? A. Yes, sir. . And .sometimes more? A. Yes, sir; sometimes more. I). Anil then you pick uj) your canoes and move off sixty or a hundred miles in another direction '! A. Yes. ("apt. liaufihlin Mcl.ean, in his cross-exainination, oave the f(illowin<"' testimoiiv ; (), You don't mean to say tliere are any stated courses inl<.,J^;<-, I'ue Bering Sea on which a vessel sails each year when .she is ''• sealing, do vou? A. Xo. i). As a nnitter of fact, you go at random, wherever you can tind seals, do yon not ? A. Not exactly at random. For instance,if 1 go into Bering Sea next year ( will crui.se around where 1 saw tlieui the most this year. If there are none there I will (}. If you Imppen to get some seals last year where you never got any betbre, would you go there this year? A. Certainly. '. gfW . !.'■' s'i' ' r '■, t ^ 208 UNCERTAIN CHARACTER OF SEAL HUNTr.IG. Q, Tlieii you would jjo where you thought you would have good luck ; is that it? A. Well, 1 would prospei^t arouud uutil 1 tbiiud some seals, and it' I liud euough to warrant my stayiug I would stop. Ciipt. (.'. N. Cox, l)eiiijf cross-oxainiiied as to tlio cotitiii;ieiu'i('s which attV'ct the catch of seals in iicriuj)- Sea, testitietl: R., 008, Hue Q, And there is a great deal of luck iu it? ^^- A. There in a certain amount of luck. Q. .\nd there in a chance of tiuding where the seals are and getting them ? A. Yes, sir. In that portion of tlie redirect exaniination of this witness wliicli has ah'cady heen (jiioted, attention is R., 612, iino(..ill(.(l fo his statement tliat he considered "the GO chances jire wliether the captain stays amonfi; them [the seals] and f^ets them or not." ('apt. \V. K. liaker, already referred to, testified as follows: R., 728, line (^), 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. t). A good deal of luck, is there not? A. Yes, sir. Till' cttntMijicMcies which enter into the speeidation of how many seal skins may be secured during a hnntinji' cruise in Berinj'' Sea, which have lu'en pre- sented in detail with the sul)stantiatiii<'- evidence, may be brietly sununarized as follows: The smallness of the vessels employed; the extraordinary perils of a voy- aj^e to and criii.se in Herinj'' Sea; the experience and skill of the master, liunter.s, and crew; the unrelia- bility of Indian hunters throuj^h their ijiiioraiice and superstition; the fre([iient inclemency of the weather: the jtrevalency of foj>'s and rain; the condition of the animals when hunted, and the uncertaintv of findinj^' .seals. These continjrencics, the Tnite*! States claim, are of such a naturi' as to make iinpossil)le any method of computin<>' an estimated catch, which will be just. NO DEFINED "SBALINO GROUNDS" IN BERING SEA. i 'IMie ArjiUiuoiit <»n IrOiiiU" ot (Jiv.it Britiiiu, in that portion iMititlctl "'I'lic clianictcM- and extent of the sealing srrounds in IVriny Sea," endeavors to do a\va\' with one of the many eontin^i'encies tliat enter into the proldeni of estiniatin'h tlioujuhtU'ssness or iijnorance of the character of seal lumting. The word "iiTt>unds," applied to a sea area, conveys the idea, to one not ^'amiliar wirh the occupation of procuring;- sealskins, that it jiartakes of the nature of tishin;^' iirounils, imi)lvinj'' shoals or liaidvs altonudini;' in va- rious s])ecies of tish. ihit in the area of Herinji' Sea, where seals are hunted, the charts submitted before tiu' Couunission, which WiiiTiiiit this lliiili C'oiiiiiiissioii cstiiiiiit- ing the ju-ohabh' mmilu'i- of skins which ji seized nr warned vessel inijiht have taken it' he?' vovajiv had not ])een interrupted. 'J'iie jHirtion is divided into two parts, the tirst )(• dealinfi' with supposed localities wliere seals niav 1 found in ahundance l)y the liiniters, and the second atteinptin<^' to demonstrate how plentiful the seals are in these areas. The endeavor is made to establish the iirst propo- sition hy several (piotations from the case of the United Sti!tes at I'ari.s which may he hrietly state(l t(i alHrm that seiils are killed l»y the hunters at lon^ distaiic<'s from the rookeries. That this position assinned in the case of the I'nited States is correct. an exj! mnation o f tl e testnnonv tak en l.ef I ire :h line 49, Connnissioiiers tully suhstantiate.x. hut that it Itears upon the (piestion under iliscnssioii is denied. The next class of e\ idence pro(luced consists of certain charts sul)mittt'r., .-,7, ;it the I'aris Trihuni is a "miiiration" chart, which, it is stated in the Argu- ment on hehalf of (ireat Ih'itain tws that tli( sea Is in .luly, .\ni;'iist, and Se|)teml)er of ISKl wer( oDserxiMi liy the patrol ve ■Is ot' the Tnitecl Sti,te> to ha\(' heeii mosth' in the position al)o\e referred to. Tl lis statt'inent is nndoiili tedb an error, a.« irt to w hich reference is inaile is nuiiilier III volume 3, Amei'ican reprint of tiie I'aris Triitunal. No refen-iice is made in that chart to the vessel> ihich jiatroled the sea in 1S91, while there is, at oaii'e (>02 of the same vohinu summai'X' i A- th data contained in the chart. That it was ritisli am IS mcricaii \cssels wei'e sei/.cd or warned m the \( 1 Ai ars ISSC, ISs; am intoii tl le (illestioil o f til ;kii ami 1 ls,S!), hean f ti iiiliistrv o le riiited States revenue ollicers in iiitei < ciitiii"' tlie seal lUf!: ves.s( Is after tlieir entrance tiiro tile most easterly id' tlie ) ),isses. u-i'li and L' nimaK r thereforr tin Ilea invaria rest to \'ictoria and San l''raiicisco, aiK hlv used l)\- sealiiiL;' era 1 ahno>r ft wiieii eiiterinti'lhe sea. 111. Arg., 58, Tile foiirtii ciiart ret'erreil to is tiiat of the cruise (d' 'luu. i.i tlie I'nited States sciiooiier Klhit in the season (d' ISS (. 'I'i le sea ar( a co\cred 1)\- iier cr uise IS coiii- parativeh' limited and lier catcii as shown 1)\- tl (•iiart was inconsideral)le. The hftli chart is tiiat of tiie cruise id' tlie I'liiti'd Hr. Arg., 58, line -20. Stat es schooner Annie in tiie same vear. lie vesse appears to iiave never ajiproaclied witliin ll'O mile^ I m '\: 212 NO DEFINKI) "SEALING GROUXOS IN HERIXG SKA. Br. Arg., 58, Hue 24. IJr. ArK., .-.8, liuo 21). Am. Kc))., vol. 7. Br. An;., r.8, line L'9. Am. l\'ep.. vol. 7. Br. Arj;., 58, line m. Am. U ji . , vol. 7. Br. Ai({., 58, liuo 10. of the Prihilot' Islands. Tlio jiiva coverctl in licr cruisi^, which lastt'd t'orty-tonr (hiy.s, cxU'iid tor 12(t miles iiorlhwi'st from Akntan I'ass and abunt tlie same distance southwest from a line drawn from Unimak i'ass to the I'rihilof Islands. The sixth chart is of the cruise of the Hritish schooner Alficd Aihttiis, on(» of the \'essels seized in 1887. An examination (tf the course which the schooner took after entering- lierin<>' Sea, coin])ared with that of the Klloi iuid the Annie already referred to, shows that the area covered was suhstantiallv dis- tinct and separate from the other two. Tile seventh chart is that of the cruise of the Aihi, one of the Hritish vessels seized in 18S7 b}' the United States, and for whicli a claim is made before this Ilio'h Commission. The crui.se of this vessel was entirely ditt'erent from those of the other three schoon- ers referred to. She covered durinj;' the period from ir»th of July to the 2r)tli of Aujiust, when she was seized, an area extendinji' lAO miles northwest from I'nimak I'ass and fully lOO miles west from 1G4 3(1' west lon;iitnde. The eijihth chart referred to ischart No. 1, counter case of tlie I'nited States at Paris. It demonstrates that in connection with the ])atrol of the sea in the year 1S91 the onlv coaling;' station in the eastern part of Uerinji' S(>a is at I'nalaska, in lliuliuk Iiarb(»r. The nintii chart referred to is No. i{, counter case of the I'nited States at Paris, and establishes the same fact. The tenth chart is No. fi, counter case of the Pnited States at Paris, and is of value in showing' how far seals wander in search of food from the Pribilof Islands, beariiit:' in mind that the dots used to indicate the seals seen do not represent herds, but the number ob.served by a ves.sel in any ;:i\en day. For exam])le. at i)b~ 10' north, and KiS" cast, there appears to be NO DEFINED "SEALING OKOUNDS IN HEKING SEA. 213 a mass of souls. Tlic aiva ('(tvcrofl by tlicse convcii- tional (lots is 20 miles ](>ii<>' Jiiid 12 to 15 wide. The number of dots is 102, t»r an averajiv of about one seal t<» every 2 sijuare miles reju'eseuted. 'I'lie elex'entli chart referred to is the eorrected **';•• '^■'r,' 5^' "mij>ration cliart sultmitted witli the counter ciise or the Tnited States at Paris. The statement as to how- it modifies the tirst miji'ration chart submitted with the case of the Tnited States is substantially correct, althouji'h there apjjcar included the months of Novem- ber, Decembi'r, and -January, which are not shown in the first chart, 'i'iie same conventional method is emploved in phittiny' the course of the uiiji'ratinji' animals. The ])ur))ose for which these two charts are submitted is indicated in the Arjiument on behalf of Great Hritain in the followiu<.;' lan;iiiaj:e: It surticir^ntly inrticates. as well as the migration cliart itr. Arg., 59, first referred to, tlie (ioinparatively limited s])ace between Hue i- the pass of the Aleutian Islands and the Pribilof group, in which seals are found. Reference to the data from which these charts were'^"'-^«i'-.','°^- prepared, liiven ni the case ot the I mted States at I'aris, shows that the charts only referred to the seals outside of Meriiifi' Sea. There is no warrant for the statement contained in the British Arjiument as shown bv the data in the lijiht of which the charts must be examined, and there is no jiround for the contention on the i)art of Cireat Hritain that a "stream of seals" exists between the eastern passes of the Aleutians and the I'ribilof Islands. Furthermore, the extract from the case of the'^'j-.^^^J/'g' ^9, United States, (pioted in the Aroin' Sea, the data from which they were prepared bein4, iuid, though conventionid in constructiou, it shows one important fact, namely, the area of sea ovei' which scalers hunt. The third map, for 181);"). is useful for the same pur- pose. The references to the month of SepteudxT in 1S94 are borne out by the data, but the year is so remote trom the period of this discussion, and the evi- B.,12.")7, lino deuce as to catch and din'ation of the season having been specitically limited by the ( "onunissioners to the \-ear lsf)(), the use of this map for any |)urpose other than to show the extent of sea o\er which seals are distributed is unwarrant<'(l. Tiie ne\t evidence advanceil in relation to localitio where seals are "always to lie found in abundance" is an exti'act from the deposition of a pilot, who was eiu- ]iloyed in the Keveiuie-.Marine Servict' of the Tnited States for seven years preceding August. ISSII, which he gave at Sitka in that year. It is first to be note(i that 1S86 was the first year when the revenue cutters of the United States were emploxcd in cruising for sealing \ < ssels. In the second place, an exaininarion of his deposi- tion shows that he had peculiar views in regard to seal life. I3r. Arc., lino i"i. Hr. Arg., line ;>3. 15. i: NO DEFINED " SEALING GROUNDS IX BERING SEA. 215 CO. line The cliit'f eiuk'iivor (»u tlu' part of (iivar liritiiiii to establish certain dcHued areas of sea, in whicli seals can with a])proxiniate certainty be fouml, is l)ase(l upon oral evidence. Testimony of this class is divided into two heai'a in his operations from ')\ to ')(> .")' north lati- tude, and from 164" l»t' to 1()8" 30' west ioniiitude. It is ai)])ro\imately an area of sea extendin.i;' 150 miles east and wi-st and l'_M) miles north and south. 0"Learv ;:ives his position in ISSIJ. duriui;' duly, jis ''i :;,'j-'. !'""» DO miles 'nrst of the Pribilof Islands, and in .\u^ust as 120 miles soiitli of the islands: coN-eriu^-, tliere- fore, an area over l'OO miles in len,ii'th. Kandase, on the I liirrsa m lss(), ^ives lier posi- ,j(_ tion at about 125 miles sunth-soiitlicdst of the islands. Keppen states that the vessel he was ujion scided urst, north, cnst, and south of tlie islands, lie o'ives n.^^:'!". !"'» but one distance, and that 150 miles from the Pril)i- lof Islands. Moss is cited in the Argument on behalf of ilands. McKiel, master of the Mar/f Tti/flor in 1887, <>ives no actual jtosition as to his .sealing- in that year, althoujih it is stated in the British Ar<>ument that he "ex]»lains that he worked in the vicinity (»f ')G° north latitude, 177' 1' we.st lon. lliU'kt'tt, iiKistcr of the Annie C Moore, ;:'ivcs liis'^>/'^i' ''"« l)()siti' to tlic positions of R-> ''•'-• latitude and lonjiitude jii\en by K. ('. Haker, sealed soiitli of the islands over an area lOO miles iiorfli and soitfli, and the same distance eo'^f and irexf. (Jerow, who hunted in ISSS, states that the vessel K., int;!, sealed \\\ erei-ji dhertioii from the i'ril)ilof Islands. ii""--'. Hansen is cited in the Ar;^ument on behalf of ( IreatHr. Ar^., ct, liritainasstatini^that "he hunted to the southward and ''"" '•'• westward of the l'ril)ilof Islands, about (!(» to 70 miles distant; after that, a little to the east. The direction was about north-northwest of Unimak Pass. This was in 1SS8." A refereiu-e to the marjiinal citation of the Kecord discloses an error in this sununary of his testi-^ mony,the witness intact statinji' that he Innited "par- ticularly to the soiitlnranl an to DO miles from them, but i)rincii)ally ..'"'^i,, ,. 1 ' •' !v,, ilil, liiio west. 40. Laufihlin ^IcLean .sealed to the tioitth of the P.-ibi- lof Islands in 18S!), and about 100 miles distant from them. Fol<>er, master of the Penehpe in 188!l, states thafK-. w«:^ '"'« he sealed to the ivest and east and soidli and northwest of the Islands. Mackett, master of the Annie C. Moore, t>'ives hisKv *>"'> i'"" position for ISiJO (or 18SS) nbout lOO miles northwest '^'^' of the Pril)ilof Islands. B s 28 lino I- I •218 XO DEFINED ".SEALING GROUNDS" IN BERING SEA. K., 721, 10. li., -jr., a7. Hr. Arn., line :I5. R., 10711, (iO. l;.. 758, 10. R.. 771, 37. lino lino (U. lino line liuv W. K. linker, iiiasttT of the Vira in 1S9U, scaled to the in>^hr((nl i\\u\ .soiitlnrnnloi' the Islinids, iukI \H) miles (listiiiit, 1111(1 ill tlie latter |iiirt of the season fn»iii 40 to (iO miles I'ti.st, in wliieh position he ai»i»arently had his Itest hnntinji'. The extreme |»oints of his eriiise are cited in the iJritish Aifiiiment as heinj;' loO to MO Dliirs (liHirt. Steele, ma.ster of the Tlirrcsa in 1S9(>, states that he hiinteii to the ircstirard and xoiifjiivdril ui \\w l*ril)i- lof Islands and near Moji'oslof 'i'lie extent of the sea covered hv him in his seal hunting' appears to liave been over 'JOO miles iiorlh and xaiith. ^^'illialn Cox, master (»f the Sap/iliiic, states that his hest .seal hiintiiiii' in ISDO was to tlie iiortliirord and iri'Kfininl of the Islands, althoii^i'h he "was all over the sea," fi'oiii;^' SO or !MI miles cast. Capt. William O'l^eary. a witness sworn on behalf of (ireat Hritain, states that in 18SS he was ircst of the islands, and that he retnrned there in ISiM), bnt did not find the seals "so |)lentiful." lie then .sealed to till' rashnin/. Captain Miner, a witness sworn on behalf of the United Stales, testified: I sealed entirely uiouiul the islands. (}. You mean north, south, east, antl westf A. Ves, sir. (^. How far iiway I'roin them? A. The iieaiest 1 was to the islands was 40 miles. Besides this specific class of testiinonv tiiere is other of n more "eneral nature. Mut two references are itr. Arg., 66, 1'li'd* ill the op]H>sin miles from the Pribilof or Aleutian Islands. R.. .">8, 16. liiio NO DEFIN'KD ".SEALING (iHOUNDs" IN MERINO SKA. 21 !> rpoii the .siiiiic \y.\7, 34. K.. 177y, 2. line lino lint' linu line line |{('si(l('s these wituenses referred to, < 'iiptiiin Meyer, (if the I'diidiiliilf, testified its tVillows; i). i'aptaiii, fioiii your exiu'iieiK^o in tlio yj'ars 188(i niitl 18S7, (1(1 you know of any place in the sea where you can go in one year and find sitais and then return in the t'olhtwing year and Ite sure of linding seals there .' A. No, Hir; I do not. At iiiiotlier |)hice in his exiiniiiiiition apjienrs tlie t'(i]l(i\viii;i': ■ ij. And if you found seals in a certain h)cality in .luly, could yon jjo back there in August and be sure of Hndin- them .' A. No, sir; I couldn't. . Have you tried it f A. Yes, sir; I have tried it .several times. lie iidded thiit he did not find seals at those phiees. Ill his cross-e.xiiiiiiniilion the witness was asked as to his cruise in 1887, and rejdied: "Suinent on l»ehalf of (Jreat liritain, it is a matter of conjecture ' w such an experienced sealer, as the witness Thomas claimed to be, could have avoided inakiii''' a successful vovaue. :JL NO UEl'lNED "SEALING GKOIIND8 IN ItEIUNO SEA. 221 ("otHtunl, diu' »»f' tlu' liiiutcrsim tlu' ('(irnlnitt in lS8(i, and iittcrwanls ciijiiiiitMl on other scaling' vcswds, was ankcd, "Do you tliiiiU that in licriii;;- Sea tlifiv is»|^'''"' ''"« any jdacc or nunihcr ol jihu'cs whon- you can yo as a sure tliin"'. and "ft seals everv vear?" — to wliicli he answered: :fi»i I (U» not think there is anv sure place. A<;ain, re|)lyin' Sea, and made two sealinji' trips in those waters for scientilic pur|»oses, was asked, "Is there any locality where seals can '^-.j.'""'- ""•^ always he found?" to which he replied, "I know of none." Ca])t. C N. Cox, a witness on Itelialf of the (daim- auts, in his direct examination, yave the followin<>' testimony: R., f)13, line ir>. Q. JIow «l() you tiiul the seals there? A. Scattered about. Q. On certain grounds '. A. I seUloni find them on tlie same ground. Captain Folger, who was suhpienaed 1)\' Great Britain and the United States, testified as follows: Q. From your experience in Bering Seu, Captain, will you K., losi', line tell the Commissioners whether or not there is any one phice '*• in Bering Sea where you will always find seals? A. No, sir; not where you will always tind them. Q. Is there any such idace? A. The seals are everywhere, according to where the food is; wherever the food is, tliat is where the seals .are. Q. Do they follow the food? A. Yes, sir. Alexander stated that the seals are practically '^ii'"' ""^ surface feeders, and that their food consists of miji'ra- tor>- fisli. Capt. W. K. liaker stated that he thought the -U" "°'' hunting grounds changed from year to year. In this ti i ; 1 I; I f' >22 NO DEFINED ''SEALING OROUNUS IN HEKING SEA. coniKH'tioii jittt'iitioii is railed to tli(? exitcrience of (,'iil)tiiiii O'Lt'iirv in 18S!» and ISItO, already cited. Ill a statement made Itetore the (Mtlleetur of cus- toms at N'ictoria in 1S!I"_>, and wliicli ('a])tain Maker in his examination testilied was true, appears the folic )\vin"': line (10. liii I liavt' iiotict'd also tliiit tliey [tlie scalsl cliaii;;e tlieir ^iroinitl from time to time, and wlicie yon liiid tbein this year you may not find tlium the next. Tliis was very re- niarkaUle dnriiifr the year 1S!H), for tlu^ s(-als were all found til tlir iiishninl of tile I'riliilof Islands, while in the former years they were all found to the westward. With this statement the testimony of Caittaiii Wil- ,liam ( "ox is sijiiiiiicant: (,). Where did you tish in IS'.tO? A. 1 was all over the sea. i). I>id yon jjo to the westward of the islamls;' A. I (lid, sir. (^>. Mow far east did vou f;o? A. About !»() miles. i). Did you eatcli seals there' A. I di. In wiiat vear.' A. 18! 10. ^i. Ydii ritiiiihl iioiictdst.' A. .V(t;(('. tl When two such prominent witnesses on liehall' of le claimants ditfer so wideh' as to the locality where als conld lie taken in Isiio, there is Init one coiiclu- >lo 11 to lie drawn, that tliei (' is no persistency m the inndance of seals in aii\ sea area even diiriiiii' tli l!r. An;., (id, lim> 17. K., HO!t, lin 3-1. same season. Alexander I{e)»pen, a witness i'elie(l upon l»v (ireat Ihitain in connection with this (picstioii of the locality where seals are taken, testilied as follows: Some (lays we found lots of seals and .some davs none. *). Kin'ht in the same place? A. At different places. We never stopped in one iilacu all the time. I ! II lift !' NO DEriNEl) "sealing OROUNlKs" JN liEIUNG SEA. 223 i). Aro tliere any itiirticular limitiiif;' gnmiicls in tht seiv, ?K,, mo, liiif A. ^'<», sir, I (Id not think it; wherever voii find the seals "'• you stay, Cji|)t. Liiuet some seals hist year where you K'., m^, line never got any before, wouhl you go tliere tliis year:' -'7. A. Oertainly. Q. Tiien you wouhl go where you had good hiek; is that it? A. Well, I would prospect around until J found sonu' seals, and if 1 fouiul enough to warrant my staying, I W(nild stop. Oaptiiiu Kayiior stutt'd tluit lie iievcr in successive K., 5lm, liur years liad found seals in the same place. "• From lliis stnnmary of the evidence it is ii|t|)areiit that the sealinji' \essels !ii'e not confined to anv yiveii locality in their hinitin^i' voya;^'es, mdess an aiva con- tainin-^' lifteen or twenty thousand scpiare miles can be considered a detinite "si'ulinji' ground.' A refer- ence to the evidence jiiveii shows that seals \\{'\v taW-ii eveiy year, from ISSC to 18!M) imdnsiv<', imiili, Hoiifli, cdsf, ami irr.sf of the i'rihilof Islands, at dis- tances raufiiuji' from (!<» to over 20(t miles therelrom. Tlie attention of the Connnissioners is pai'ticnlarlv called to the Townsinid chart for ]8!t4, aiul the "seal- inji'" chart, No. 4, of the <-ase of the United States at I'aris, both of which were placed in evidence Itv Groat Britain. The testimony and the charts denuui- strate that the area where seals are hunted in Herinji' Sea extends from Kif) to ITo" ircsl loni;itnde, and from ;");{ to ■)!!'' i/ori/i latitude, containinj^- from 140,00(1 to 150,000 scjuare miles, fijiaif iiHinn (ijijnd.r'niiafrhi fn the Xorfli Sen. The Aro'inuent on behalf of (Sreat Britain sums npiii-. Aij;.. ti."., the evidence relied upon in the folhnviuji' words: '""' ' Having established that the .sealing grounds in liering Sea are well known and Citnili/ defined, it is projjosed to point how plentiful the -seals were in tho.se sealing grounds. f- 224 NO UEFIXEI) "SKALING GKOUXDs" IN liERIN'Ci SKA. It is iis littiuji' t(» term the oiitiiv expanse of the Xortli Sfii !i "tisliinj; jiTound" as it is to term tliese waters "scaliiiy yroiinds;'' and it is a sinnifieant fact that (Ireat Britain fails to (h'line the of seal a>)un(hnice. Br. Ari;., li.- lini' H2, a.ssumed loea lity The second portiitn of tliis part of the Arji'nment mi(h'r consicU'vation deals with the ahundnnce of seals in this area of 14(t,0(»0 to ir)(>,()(l() s(|uare miles. Duriii"' the niornin!'" session of the Iliyh Commis- sion on l)ecenil)er 2, ISIM;, tln're was read into the record on behalf of (ireat IJritain a deposition of .1. II. I )otij>'lass, the revenue-marintf jiilot, already referreii • t >. In that appears tlu' statement which is (pioted 1:1 the British Argument showinj;' that the seals "are ii' .dl times very plenty between I'nimak I'ass and ?,nd Islands, in a track al)ont thirty miles wide, which •e"ms to be their hijihway to and from the Islands." The pictnre of a "stream of seals" 3<) miles wide, extendinii' throuiih I'nimak Pass, and thence for. ISO miles to tlu' I'ribilof Islamls, siiuficsts many | lOSSl- bilities and certainties attendant uiion the occnpatiou of si-al hnntinji'. If snch a condition I'xisted in realit\ hi IXtSG, or at anv time, it can not be nnderstood why It was necessary for th le sealiiii'- ves.se 1st o ever enter the disputed waters of rierin;^- Sea. Lyin<^--to, at the entram-e of the I' tlieir lH)at> wnn diort mter- vals between them, extendinji' like a chain from shore to shore, it seems as it tiie axai'ice of the sealer and his exa};-;.;erated ideas of profit mijiht ha\-e been fully realized in the slauiiliter of th The fact is that tli is e miLiratmLi' animals, never occurre(l in the history »f pel; r lU'ic sealinij-, aiK d that no N'esse as ever liinite(l 111 inniak ass. riiat this deijositioii is suitaltle, authentic e\ ideiice, such as s houhi C onimissmn. is i receix'c consideration b\- this li leliied b\ the I'llited States. mil W( o weeks a'ver tins deposition w as otfereil in evi NO DKKINED "SEAMNO (iltOL'NDs" IN HKHING SEA. 225 (loncc, ill t\w redirect exjiininatioii df the witness Cliir- eiiee N. ('ox, the fullowinji' ([uestioiis were iisked: (i. Do seals herd toKctlier, as Mr. Wam-ii siifrgo.sts? K'.. i;i:f, i„„. A. I liave never seen tlieiii that way. i teniber? A. Never in that way. I}, llow do you (ln. On certain grouinls? A. I seldom find tliein on the same grounds. (). llow many will you lind together as a rule? A. Three or lour; two; very ol'ten oiu'. (}. And tiiis idea of large Jierds, witii watchmen to keei) the pelagic sealer oil', is there anvthiiig of tliat kind in lieriiig 8ea.' A. Not in my experience. Q. Do you tind them in larger bodies on the southern coast : A. Ves. sir. (}. When they are coming up to the sea;' A. Oil the southern coast we lind them in larger bodies. (). And the remark you have made when asked about twenty-live seals together, and that sort of thing, does that apply to liering Sea? A. N'o, sir. <). I )id you ever meet a mass containing as many as twenty- hve seals close together in Itering Sea? A. No, sir. Q. You meet them in scattered numbers? A. Ves, sir. 'Pile position liere iissiimeil l»y (ireat Mritaiu is dia- metrieally opiHtsed to that taken wiieii the Dotiuljiss deposition was ur^icd upon the ( 'mmiiissioners. From the time of the exaiiiination of Cox, tip to ami in- (•h;(liiio- the last day of tlie session, on February •_>, no iiion> evich'iK'e was olfered on tlie part of (I'reat Britain to establish this "stream of seals," and no otlier reforeiiee is made to it until it appears ajrain at this time H s 2'.) t : '1 If " ' i' ji( 226 NO DEFINED "SKALING GKOUXDS IN UEEING SEA. R., 310, 50. line in the Arj;uiiKMit. IJut tV-w rct'ereiici-s to the licconl iK'C'd be iiiiulc to sliow tliciv is no evidi'iicc to sustitin the |)ositioii iissiiiiR'd anew by Great Hritain, as the itr. A'i..,(i(i. citations wliicli arc rdicd on in the Arj^unicnt in no ))i\rticular sustain tlic ojiinion of the witness Donjilass or licl]' to establish the contention that there is any wel]-(h'lined locahty wliere seals are found in such al)inidance as to insure a ci-rtainty of profitable huntinji'. The witness, Alexander He])|)en, called on behalf of (Jreat Hritain, states that the seals are no thicker in one (|Uarter than in another; that it just ha]»|)ens that a schooner runs across a muuber «»f seals and stays there for awhile, and that she then ji'oes GO or To niiles in another direction, where, lyin<:-to, she sends out her canoes and stays there a day, and, if the seals are thick, two days, and souK'tinies more; and then, ])ickin;i' up the canoes, the vessel moves off (!(» or l(l(t miles in aimther direction, (-overinji' the whole sea al)out the islands. The witness, Charles K. IJaynor, testified as follows: (), In looking' for seals out there, you Lave to take your vessel around the various parts of the sea to nome across a bunch of seals ? A. Ves. Q. You do not hunt seals iu herds, do you — they are found in small bunches, are they not? A. .Mostly, 1 (ind them by two or three at a time. (.). There is no such thing as running across thousands of seals and being able to kill any nund)er of them in a short time? A. No, sir; I never found it S((. 'I'he witness Clarence N. Cox, already referred to, ^iave the followinji' testimony: Q. You don't want to be understood as testifying that boats ;;o out into a large herd of seals and catch them light and left? A. No, sir. ii. They take them up separately .' \i., '>'Sii, line 14 „ >m, 4.-.. line NO DEKINEI) "SEALING GUOUNDs" IN HERINO SEA. 227 A. Yes, one iuul two t<)j;etlier — tliree. Q. The (;an(>es or boats, whiirhever you may be using-. Which do you use? A. I have had canoes since lS!)w*. Q- '"liey circulate about tiie boat, and when they find a seal sleeping, travciiu';-, or breaching, whatever he nniy lie doing, tliey kill him 'I A. Yes, sir. Q. Then they go searching for another? A. Yes, sir. FiiHIkt reftTC'iicc, in view of tlic forej^oiiif'' stjitc- iiK'iits on tlii^ pjirt of till' witnesses sworn hefore the llio-h CoMiiuission seems useless. 1'Iie United States deny that there exists in Hi-riiii;' Sea, except within the territorial waters of the I'nited States sinTonndiii<>' the I'rihilof Islands, any l(»cality, wiu-re seals are at all times a]>undant, of such limite(l extent as to form a basis for calcidatinjj; a j)rol)ai)l(^ catch. Thev admit that within an area, includin<>- from 14(),()0(l to 'ir)(»,0(t() s([uare miles of open sea, seals are found during' the snnnner months and that they are killed while .seek- ing- their food over this expan.se of waters, at the same tinu' contending- that this large area oxer which the seals are scattered, iinrfli, nist, south, and wrsi from the Prihilof Ishnids, fcu'ins no basis for any formula which may be suggested for the computation of a p()ssil)le catch. :::!■- III m m fW. DURATION OF THE SEALING SEASON IN BERING SEA "^I'lic rase of the United StJiti's in answer to tlie elaini t'ur dania^ics, nieasnre(l by the uncertain and estimated results ut' a prosjx'ctive catcli, is confidently rested on tlie citation of authorities universalh' liold- inji' that this basis for detennininj>' and a\vardin- uj)nn the obstacles ofi'ered l)y nature and the unsurmountable dilliculties encountered in the busi- nt'ss of seal hunting, which render the ascertidnment of a just l»asis for calculatin*:' future earnin<:s of seal hiuiters absolutely impossible. The claim advanced as to the duration of the seal- in <>■ season in Herinj:' Sea, in the Ar- season, are \i(dently at war, the one with (he otliei'. The Aoyaj^es of many of the vessels are shown in the extracts from the evi- dence, carefidly collected, to have terminated ])etiveen the 20th and 2r)th . 'i'lie days thai lnintin<^ ()i»erati()ns were stojiped is not j^-iven, oidy the days ujion wliich the varions vessels left the sea. The eoncln- sion, liowever, is drawn: "it is therefore established that the lial)its of the .seals and the weatlier ordinarily prevailin;^- wonld permit the vessels en<>'a' that a lon<>er vovaii'e was ever made, and in fact no such testimony could l)e referred to, the tinal conclusion is drawn that it has heeu "determineil that they would in each case have t-on- tinued sealinji' under the favorable conditions of Briti_sh Aij; , weather proved to have been existino- until as near ''''' the end of Se[)tend»er as would have bei'U necessary to accoin})lish a satisfactory catch." The supposition mi'u- meiit, 158, these elastic ])hra.ses, "until well into the month of Se])tember" and "until as near the end of Se|)tember as would have been necessary," are expande(l to ( )ctober 1. The Tnited States contend that the testimony in the i^ecord definitely fixes Auffust 20 to Au. No evidence was adduceil cm behalf of tlu' claim- ants bearing upon the ' to the duration of the huntinji' season in Herini:' Sea ^-iven bv captains, mates, or hunters on rrnsfls irlmsr rai/df/cs iri'fr nut iiilirnipffil or intrrfcml iritli, is contained or referred to in this portion of the Ar hunting' of seals in Meriuii' Si-a l)e<;'an in the year iSSi;. Captain Warren testilie(l, "iSSij was the tirst year then of any note in Iierin;^' Sea." The evi- deiu't' does not refer to more than a half dozen vessels which entere(l Uerinj;' Sea jiriortothat \ear. an ' of them sailed from \'ict(»ria. nd none Arj;. oil lip- lialf of «. li., 1). TU, \n' the estimated catch," contains the statement: Exh. 27, B., t'l. Kxhs., 13. K'., 20(5, liuo 23. It is couteiuled hy Groat i'.ritaiii that in 18S6 the Mari/ Ellen is the only vessel of wliicli it can l)e stated witli cer- tainty tliat slie conipleted tier voyage witliout interference of any Iciiid. (i. William 'V. Hrajiy, called on hehalf of Great Hrit- Ji'ain, was examined relative to the voyaji'e of the Marif Kllnt in 1X8(1. He ji'ave a detailed statement of tlio catch. The last huntiuf^' day was Auf)nd :J4. On cross-examination, he said: (i. Tlie :.>Hli of Aut/iixt was practically the close of the sealing that year in lierinH' ^^ea, was itt A. It was the close of our .sealing'. (), Did you come away earlier that year than others, or did you stay the ordiinuy limit of the sealing season if A. That was the ordinary limit at that time, Q. And in 1887 it was about the limit? A, About the limit in 1887. UUKATION OK THE SEALING SEASON IN UEKINCi SEA. 231 Q. VVliy (lid the season close on or about the 24th of Aufiust, 1.S.SG and lasT-} A. Well, coming on the 1st of September the weather commences to {jet bad. The northwesters set in about the latter part of Aufjust, and, as a rule, they take the lust north- wester about the last of Aujiust and steer for home. i}. And when they talk about the season extendinfj into Sei»tembcr they do not speak of tiie years lSiS(J and 1887 .' A. I never remained in there that late. (). And you never knew anyone else to remain in there that late in those years? A. No, 1 (lid not. (i>. I believe you said that yon stayed in Bering- Sea asK., 267, line long as you desired, and that you did not come out because ^'• of any seizures in 188(i; A. Not that 1 was aware of. Aiidrow I). I.iiiii;;', cxiiiiiiiu'd on Ijclialt' (if ( Jreat !{•. 270. Hritain and liiinsi'lf m ('huiiiiint ht'toro tliis lli4 was the hist i?-27i,iiuc3. day that the hoals were h»wered tor the purpose ot" lunitiii";' seals. Eiuile Uaiulase, called on l)ehalf of (xreat Britain, relative to the catch of the Tliocsd in Berino- Sc-a in 188(1, said: ' «-^'^299, line Q. And how long did you remain in the sea sealing? A. If 1 remember right, we left on the I'Sih of Avijust. Q. Why did you leave on the 2r>th of August? A. I don't know. 1 suppose that was the end of the trip. On cross-oxjunination, witness said: Q. When did you stop se.aling in August? A. What year? Q. In 1886! A. Well, as near as I can remember, a few days before that, probably a couple of days. Q. Then you left on account of what? A. The vessel wasn't fitted out for a long cruise; she wasn't very well i)rovisioned going home? Alexanth of AuqiiHt .' A. Yi's. i). You stated that yoii were there si^veral days wiiitiiif; for jidod weather, did vou uotf A. Yes. . And tlu* flood weiither did not «!()ine? A. No. (i». So vou went out of tlie sea J A. Yes. (J. Was tlie bud weather that season the reason wliy you left I lie sea? A. Yes. i{('|(|K'ii WHS lilt' Diily wiliKfss ciillcd wlin was alxmrd liu' (irmc in ISSlI, and his cviilciict^ (»i)l- wt'ifi'lis llio ^i'l'iicral .slatcnii'iil of (Japlaiii Warren lliat iiis vessels wci't' (tiillittcd tor a V(»ya<>v until llie end ol' .St'|)tciiiltcr. i;..^;!77, lim. ,i,,||„ c.tsford, called on l.clialf of tlie Unilcd States, relative to the voyaj^*' of t he < Vovj/r;/r/ in IHSd, said: (i). Do yon know aiiytliiii};' about what the time t!a|ttaiii Oslevie, or did you liear anytliini; about the time he was l)re|>ariiif; to h'uve tlie sea.' A. Somewhere alxait the 3()th <>»• S'Iril of Aiinimf, 1 believe. (Cajitain ()f;levie had t«dd him.) liritish Agr., .laiiu's .Mniiyer, called on behalf of (ircat liritain, 40. relative to the voyji' rehttive to the vova(ilh and .lint of AiujitHt .' A, No, sir; it was not good sealing weather. 'I'lu' witness Imd Itccii in IVriiij-' Sea lii'twct'ii the i'': 1727, line 2()tli niul 31st uf Auoiist ill 1SS6; tlicn-t'oir wiis in ii ^*" pnsition to testify CDiifi'rnino' the iu-tiiiil ('(inditions. Ciipt. Wni.O'l.eiirv. inaster of the I'uthjiudrr in ISHC, «•• 292, line !i witness oinedon behalf of the elaiiiiants, testiiied: ^^' Q. Mow long were you jnovisioned to stay and how long did yiist. Captain O'Leary was examined rehitive ii the*''; 293, line voya^re of the l'f Augmt. 'I'lie witness, tlievef(n-e, was aj>aiii not in a jxisition to testify as to the actual conditions existiiiji' in the latter part of Au^'iist. Exhibit 27, (i. H. Claim X(.. 1, Kxhibits, paye 43, discloses that, although thd/^rn// Ellcti cease. Vou lu'ver were in tlieie later than tlie .''//( itj' Aiitiiixt .' A. 1 do not tliiiik so: that was tin- last year I was in tin- lieriiiK Sea. This witness, wlm was one ot' the eaptains emphived liy the chiiniaMt. William .Mniisie. hetween the years 18S(i and ls;i(l, was iiexcr in IJerinj:' Sea later tliaii tlu' L'.'tth of An;.;iist. ■ ediietiiij:' the usual time re(|nirei| to make the voya^i'e tVom the |ilace wliere the vessel ehaneeil to he sealiii;^' to the Pass through which she would leave the sea and hiintiiij;' o|>eratioiis would cease, according;' to his testimony, alioiit the :*(llli nj A Uf/Kst. ('aptain .lames 1). Warren, who nuinajied the lai'ji'est lleet of vessels in IJeriiif;' Sea in lSS(i, cx- amineil on liehalC of the clainiiint, is cited in the liritisli ArLinment. )iai;'e 7<>. in sii|t]iort ot' the conten- tion that the sealinji' season in the \ ear 1 SSG extended to the end ot' SejitemlxT : K., !M'«, liii'' (), III l,SS(i. taking till' siipitlies you liail on the vessels yoii "^* lia\i' iiieiitioiied. liow ionji did you iiriaii};''' tor tlic cruise, a cruise of tlic \arinus \esscls in your licet.' A. My intention was to have staycil in the sea until ahuui the end of Seiitcinber. This witness minht reasmialtly he expected, when the "general (diaracter of these claims is considered, to testifx' to a ))ridoii^'ed hnntiiiL!' season, hut irrespectix c of his prejudices, the fact is disclose(| liy the record that he was never in IJerinj;' Sea after the 'Jtttli of .\iiiiust. and that the captains sailinu' the schooners of the lleet in the Near ISSd all stopped liiintiii;:' liefore the iTith of Aii;^ilst. i.,aiiiji', mate of the .SV////f70v/, managed hy Warren, .states the last .sealiim' dav was AiijiKst :Jt. Dt'BATlUN OK THK SKAMNO SEAbON IN HEUING SEA. 285 AlfXiiiiilcr lit'|t|tcii tcstilicd tliaf tlin di'iiri' cciiscU K. an, line licr sciiliiiji' vt(\ ji;i(' tli of Aiif/iist, niid tlint slic WHS not Wiinicd Itiit sttippcd hcciiiisc ut' Itiid Wfiitlicr. ("iilttiuii nlscii, sailiiifi' tlu' Aiiiki ItccI;, hclonoiuM' ■{•gWM, line to the ricct miiiiii^icd hy Wiirrcii in ISSG, tcstilicd: (}. Ho tliat you would not bt' positive that you were out- fltti'd iiutil tilt' l8t SepteiiilK'iJ A. I am positive tliat 1 was outlltted until 1st September wlu'ii 1 It'll tlip wt'st foast, (k>. And yon made arranfti'iat'uts to hunt until what timt> .' '*''*""' ^''"' A. Wt'll, as Ion;: as I thoujjht lit tti stay in tin- Iteriiig Si'a. Tlifst' wi'it' my orders. 1 had om)ujili sup|>lies on board to kt't']) lue tht'it- until the bejt'innin^ of Heptember. (). How Ion},' were you instruetetl to stay there? A. As Ion;;' as I thou;;ht reasoiuible to j;t't skins, (^. hid vou lit out this same vessel the vear belbre, viz, |SS(;? A. I did. (I. And you tittetl her out in the same way ? A. Yes, sir. (i. How Ion;; did yt)u remain in the sea in l.SSii? A. Until the //'//( Aiifiiist. and then 1 started tor the pass antl eame through on the Jlst. 'V\h' fuptiiiiis 1)11 tlii'cc (d' the vessels of this Heet positively ('(iiitradict ("ji|itain Warreii. and iiiasmueh as his testiiiiiiiiy was iiased ii|Min a sii|»|M)siti()ii ami theirs u|Min aetiial experieiiee, hut little weitiht is to he {i'iveii tf> his statement. The witness hiniselt, however, onfross-exaniination, ^•' '*^' ^°^ testilied: (}. Now, you sny your sehooners were all litted out to leave the sea at the end of Septend)er? A. In that ueighborhot)d. Q. Did ytai ever know a sealing vessel that stayetl iu Ber- ing Sea to the eiul of Spptend)er in those years? A. Iu them years I don't think I do, and I thiwk likely there was vessels in before (}, Vou tlitl not begin tt) enter Bering Sea until 18S<» ' A. The Victorians did not, as a rule. Q. (Jan you tell me of a single vessel that remained in Bering Sea in ISSli or 1887 as late as September? A. I don't know as 1 know of one. 23fi rUKATION OK THK SEALING 8KASON IN HEKING SEA. 1?., 408, line (i>. You were first in Bering Sea in 188(>f A. Ill 1S8(!. (). Wliat was tlie usual time for leaving Heriiig Sea of the vhole of the sealing lleetif A. We were coiiiniencing at that time; 1 inteiuleil to have sto]>))e(l in until the end of September. «i». Have you learned sinee by experience that tiiere is no sealing to be had after tiu' L'-'ilh of Aii>' •Ills I II. f itrodnct'd tl U' oriiiinal lo I 1. hooks of liis Noxaiif for tlmsc xcars, and tlic t'ntr ics 'niirnicd liis ti'stinionx'. Tlic ioo's are on iile a> exlnhits aiid can he nis|)ccte(l. This Icstinionv is all tlie testimony in tlic record liearin;^' niioii tlie duration ot' the scaling' season in HeriiiL:' Sea in the \ car ISSli, which was i;i\'cii 1)\ ca|)ta!ns who were actually there and whose voyaiics were not interrii|ited. (Mily one of these vessels was warned, and ('aptain McLean, coininandiii;^' that xcs '1, the l'(iniiir'ili\ testilied that he di KJ not lea\-e tlie sea liecause o the l!ltll t' the wariiiiiL;', hut stopped hunt niii' on An-i liecause the sciisoii was closei rKsriMoNv i;i:i..\TiN(i ro hi'Ka'I'ion ok s|':as()\ ok isst lO;!, line H., ii;i7, III) 61. ('aptain Alexander .Mid, can. sailiiiL;' the .1/. i'.lhii stopped hiintiiii;' on the UHli ilin/ nj Aiii/iisl. till ( 'aptain ( 'h: iries K. K'axnor states that he ui 111 the :'//// !>/ A mill. xamiiiing memo randum!. In l.sST my last sealing; day was the JHh ni' A luiiisl. AUi] 1 came out tlirouj;li the pass on the .")tli of September. -^»"T^il^>^^l DURATION OK TIIK SKALINC SEASON IN IlKRING SEA. 237 Tlicdotiiilcd sliitciiu'iit of till' ciitcli (if tilt' Favuuiitc^^\', "'*-. ''"e ill If^ST shows tliiit the 2<;tli of Aii<>iist was the last '' si-aliiio- (liiy, the widicss statiiii--, "and the -Jtitli is the last day of scaliiiji'."' Captain AIIktI Folncr, ii witness calUMJ mi behalf '''j l"^-- ''"« of the Tnited Stiites. examined rehitive to his voy- ages in Heriiio- Sea. testified diiif he was n sealing- eiiptain and that he resided iii \ ietoria, and that the last day he senled in 1SS7 wiis the •' I'JtIi i,f AiiiiHst." ('jiptiiin Peter ('. Meyer, a witness cjilled on hehalf '''v„/'-"' ''"« of the I'liited Stiites. testified that his hist lowering- day in 1S,S7 was on the ■J'.Hii <,f AikiusI: that he rniifdiiril ill tlir .-^fii until t/ir 1 nil of Sriilcnihrr, diid mis llllillilc III liiinr/iis IkkiIs ill llif iiiriliifiiiir. Alex.'inder i;ci»|ieii testilied tlint he Wiis on the Jlhicl,- " j i'"^'' •'"« hidiiiniiil in ixm, jiiid that she left the sen on the l-'illi III' Aiif/iisl. Ciiptiiin .MoN.-, testified tli;it the h'nlr left the sen in ^'■- :«». I'ne ISS7. "the hitter pnrt of .Viiniist." nndliiter lixfd the K.,;ui, lino i. diite "somewhere aliont the -.'Olli nr :Jilli m J-'ilh." I'lxamillrd ;iL;!lin ;is lo the dilte, he testified •\-J(ll!l iiH^-; •■*"'■'■ '"'i' .l/ii/iisl ,))• ii little hiter. 1 do not i-emember as to a d;i\ or so." rnr. tkstimonv i;i:i.a iivk id ■riii; ci.osk oi- rm.: SKALINO SKASON IN isss. I''mi'e Hiii.iliise. exmniiicd on iicliidl' ol' ( ircat iirit- "■• "-•'. '"'i'" ilill i-cl;lli\ ■ to the \iiy;l;ii' of ihc Ai/liir ('. Mimn iu Hernii:' ;'-e;i ill I SSS, s;iid: '). What time diit ymi feave / \. Almut tli(> L'mii of Aiijiiisl, I bclicvi'. I ani not certain ij., ^\^l■^ u,,,. of tfiv'datt'. tfioii-ili. Vid. " ' (■. N'cr.v iH'ar tfie L'Oili? A. It iiiii.sl liiiri' hirii nri/ iiiiir tlir :jiilli, liicnu.si ii-f hail /iiiisliril iHir Kiiiliiiii Ki'iimiii. i). NNCre \(ni warned out in l.sss,' A. No, sir. ]•]. ("row Bilker, the owner of the Trimniili in 1SSS, iiiid ii witness sworn on his own liehiilf, testified rela- rwT'ww^ U i' 238 DURATION- OF THK SKALING SKASON IN BERING SEA. rivo trd of Se|)tenilier. A. We went out throus'li tlie pass, but we hunted to the last. \N'e left tlie sealing jironnd on the .Iril ot' i-'cittcmlx) in the sea. and went aiul tilled water, and we h. wei'^d and sealed auer we fdled water and come out, the same day we come out or the day before. (}, You practii-aliy al)andoned your hunting then on the 3rd of September? A. Out in the sea, I snpi)ose. We eonu' and tilled water and then we hunted after tliat. i). You lowered in the i)ass;' A. Yes; lowered inside tlie I'ass. This witness said tliat lie ciiiuc out in tin- vl'-av l.S'.K) on the 'Jl-. and tooh l)iit two seals after that d;ile. mie of them on the .'ititli of Viiu'nst and the other on the 2iid of Sf|)temi)er. (>>. And, for instance. I tliiiik you stated that on Aiiui >l I'- T'.'73, lliu' S. Hi. '_'."), and "lOiii ami September '_'iid \ on only took one se 1 on those (lavs. Would I hose be lowering; f A. No. si'r. .\( TordiiiLily. the (dose id' the hiiiitinL;' season for that \(i\aL;'e was Aniinsl .'/Hi. <'a|itain Clark, td' tlie .//(/n^^/^/. testilied that h,. i-'.. nm. line left the sea Aiifiiist •>(). Isss. K'ccnllcd tor further examination, he stated that the reason he Icif was iK'caiisr he did not know Init there inii^ht lie seiyjircs after the L'titli ot' .\iiLinst. Herman Smith, totifyiiii;- on hehalf id' (ireat |lrit- "■•,.(' ""■"'• ''"'' aiii, said the llldil; hiiniKmil hit the >ea in 1SS,S on the I'.'plh of .\*iii;nst. PHiiqp m !;i 240 DURATION OF THE SEALING SEASON IN ItEKING SEA. The tcstiiiiony (»f" iill tin- witiu'sscs clciirly csial)- lislu's that l)iit one vessel had ever reiiiaiiieil in lierin;^' Sea, prior to the year ISHlt, into the niontli of Se]i- tenilter. In the chiinis as presented in the Arunnieiit tii of Sejiteinlx-r are aske(L 'Ihe Moiiiifdiii Cliii'.f, saih'il li\ ("aptain .laeultsen. was the vessel that alone of all the sealin;^- fleet in Herinu' Sea in the yeai-s ls8(i, ISST. and ISSS took a seal in Septend)er. The testiinom of ( 'aptain .lacohsen has been cited where he stated that "We left the >ealinfi' ji'round on the ■'ird oj Sr/ifciiihcr in the sea." lie does not state what day he lowered last in the .scii. leaxint;' this to conjeetnre. Inasmneh as the ti'stimony of the other witnessi-s abundantly estahlishes the fact that no other vessel lowered its hoats in the month of Septendter. the pre- snnqition, anioinitinu' almost to a jiositive conclusion, is that ( 'aptain dacolisen did not lower his boats from the Mi)iiiit(iiii Clilrf 'u\ September in the .sy7^ A<;ainst the positiv<' statement ef the other witnesses as to the close of' the hunting' season, and apiinst the experi- ence of so many other sealing:' captains, this one case of the continuation of hnntin;^- to the ih'd ot Septem- ber surely does not warrant the conclusion that the loth of Seiitendjcr was the limit of the season. TESTIMONY I8!t. ('aptain Charles llackett, a witness on behali of K.^^ess, line (;,,^.,|^ Britain, testified that he left the sea in the J;///;r ('. Miiarc in 1S8!I on the L'l'nd of Au^iust: thai it was not i'avoralile weather for sealing:- lietween the Kith and 'J2nd, and tliiit he stopped huntin;^' the Id'tli of 46 I llflllst. K., 651, lino nomas II. Iii'own, witness c ■d on belialf of (ireat % Ih'itain, teslilicd that the hist lowerin;^' da\(if the ves- sel that he was on in 1.S81I was tiu' :.'')th of Aiijinst. UUI.ATIOX OK TilH SKALING SKASON IN HERING SKA. 241 CiiptiMi Uakcr, cited jis mitli((rir\ mi diirjitimi of tlic seiiliii^ sciison. in the Arfi'Uinciit oi' (Jrc; t liritfiiii, iuid lv'..Ti!Mi,if5. ii wiliicss cnllt'd oil hcliidt' of (ivciit livitaiii, tcstiiicd tliiit flic last limiting- day in iicriiii:- Sea in ISSii was the -Jlsl (,f Aiiiiitst. He sailed tiic I'ira. Cajitaiii l,au'itl, nj Aiiniisl hi issjt. \\\i\. 'V. l)ra<>L;', called on lieJiidf of (Jreat liritaiu, testified that the •>r>tli of Amnisl was the last lowerin-''^.-,'"'"' ""' day of the Mnmi'ir Mar in tJie year 1S81I.' Win. J. (ioudie, witness calle(l on liehalf of (ireat Britain, stated that his vessel stayed in the sea until .some time in ( »ctol»er for the purpose of makiu"' a raid on the I'ril.ih.f IJmh.K l.„t fl,.o H,,, I.,..f 1 .T" R"''"M'"«">- ine niu- ( aid on the I'riliilof Islands, Imt that the last I lay for the purpose of seal hmitiiii:' was het \\\v ;J()tli mill ;J.',tli of Aiunisl ower- weeii Captain Hansen testified that he left Herinj;' Sea the iiltllr lit' Aiiiiiisf on the Aih/i. He afterwards stated III as tile reason that le could do nothiiiji- with 1 K., til."., line l.'l. Indians: that "thev would not hunt us inv more. B s- .■51 242 DURATION (iK THl; SKAMNU SKASON IN HKkING SEA. K., 557, I"'e ("itptaiii .MiiUT testified tliiit lie It't't tlie scji in l.SHU "tlie hiftf)- jKtii of Jiii/iisf.' This testiiiKiHV of the witnesses reliitive fo their iictniil e\]H'rience in the \ e;u' ISSl) estiihlislies tliMt thei'e \v!is not ;i \cssel in Uerinii' Se;i in Septeniher. ISSlt, foi' tile pni'iiose of sciihiiu', luul \ ct in some instiUiees tlie •hiini is nuuh' for the seiih'nu- senson extendiiiii- nntil thi' 1st of < )(rol)er. The testinion\- relieil upon to thus extend tlie ilnrii- tion ot the \o\iiy'es ol' tliese \-essels which weri' inter- niiited 1)\ en tile cruisers of the I'niteil Stiites reliites rirel\- to the x'eiir 1 SlMi. There iin- no cliiiins liet'ore this llinh ( 'oniiiiis>inn for \essels wiirned in the \ CiU' 1S!I(I, Mud tile testiiiion\- relntin;:' to th;it \ cnr is remote when used tor tlie purpose nl' estidihsliinu- tlie duni- rioii of the season of 1 ss;), ( 'oiisiderin^' the testimoux ot "// the witnesses relnt- .f \essels ill IS'.M), the weijiht of tesrimoiix siiniiorts rlie statements iiiaile relati\e to in^i' to rile xoxaiic tl le duration (»t the season in toi'iiier xcars. W., (ili5 !'">' ( 'apTaiii \'icTor .lac ot hiinrinii' in lS!to wm; onsen testilied that the last dav the •.•'/>/ "/ Aiiiiiisf. Ilesaih the MnitiH . \i,. tion. 31. ii'"' ( 'aptaiii ( 'has. Ilackett, a witness on liehalf of (ii-eat liritain. of the Aini'ir ('. Mimrr. said that he "ave iiit sealinir on the I III/ aj .liiii/i.>l. .ind that he stopped accouuT of had weather. on ( 'Hiri!. HiriT^lin ("1; ireiice ( 'ox, inasier ot the 'rriiini/ili ill 1«1M>. TK-stiliied that the l!>fh <>t Aiii/ir-f was the last d,i\ he liiniteil 111 that \ car. If . •i.-.s. liiii' ('apt.aiii .Miller, cdiiiiiiaiidiii::' the .I///V /. .!///'/■ in iSMd. test||i,.ii that lie Irtf ••aloiio- the lirst nai-t of >( ptemlier. '. 'apt lin Lauiihrm .\l( I iff in IS'.X), testitied rliat the last dav h ,ean.coniniaiiilnm' tne i-nnnir- e low ere(| w ;>(* |{.. 751, liiii'the ///// of' .liii/iisl. -Mwil stated that the weather wa> ^■eiK ralK' worse in Tire last part of .Vu;;usr than it K.. 751. Ill as in . I Illy or the first of Au<4'iist. DIKATION t»K Till-; SEAMNli SEASON IN liKKlNti SEA. i4'd ('ii|itjliii Jcfliii Steele, lit' tlie T/icrcsd. t<'stilie(l tiiiit K. tlie2;itli di' August WHS theliitest lie wjis e\-er in li 1(I7X, line ,(.]•- 1(1. iiml tliiit WHS the \-eiir \X\H). His l;ist se;iliiititli t' the \(i\- !"•(■ (1 lie Si(t jIoii : i). And wlieii did yun loavo the se;i in Septeniher .' A. I left it on tlic 141 li. (}. Hii that fioni the lirst tothc 1 Ith you <-an{;lit 30(t seals? A. 1 tiiiiik so: jnctty lu'ar. Q. Was tiicic jiietty jiood wcatlier in S('i)tiMnl)(>i"/ A. Sei)tenil)er was tine, tiio lirst part of Seiitemiicr. (}. In fact yon did hotter work in September tliaii von did li.. Hicl. Ml IG. in Aiiftnst ? A. Yes; 1 did notliinj;- in A was too stonnv. iijiust. nor ill .Inly, eitlior. It i). So that tliese people who tell us you can not lish in Septeniher on accoiint of tlie weather, they don't know aiiv- thing about it. do tliey. Captain .' A. (Ml. no: you can get lots of seals in September. Hrit StJdv his witness is ei nil te.l 111 the Ar- iiiiieiit iur (ireat as a witness calleil mi itelialf of the I'nited II e was CM led (111 liehalt' (d the I'nited Stat- i(ir the luii'iKise oi' ascenaiiiiii- the diiratioii of tl soli. Tills witness, however, was the mate of tli, M'nni'ir at the time of her seizure iind was afterwtirds a witness on liehalf of (treat Uritain in the claim of the M'nni'ir. and was a sealino- captain out oftlie port (if N'ictoi la. ("ajitain K'oliert \\. .McKeil. a witness on la-half (»i (ireat Britain, testilied relative to the \(i\ii"c of the h'.. (1- Hue !l t 1. 1. tt 244 DURATION OF THE SEALING SKASON IN BERING SEA. K. /I. Miuriit ill ISIIO, jiiid siiid tliiit tlic lust iliiy of liuntiii^i' wiis tlu' :ifli nf Aiijinsf. line William (i. (Joudie, testifVinji' relative to the v i>y t!l. Tr.T, iiiicjii;c of the Sapjiliin; in ls;»o, said tliat they left the sea on the /;/// or /.v/// of Aiiji'iist. Captain Cox testified he left Aiiji'iist J.'ifli. llerman Smith, testif\iiij4- in liehalf of Creat IJrit- R., listi, liii 40. am, said that lie was on tlie If., (illi, hlic 17. /rfl tl 11- sea on tlie Kofh ■ >lsf (if A III/ list. 'irriiir ill ISIH), and (iiistave Hansen, master of the J'/r/r, testitied that 1h' left the sea the l:Jlli of A III I list. The testiiiion\- shows that hut three vessels actnalh ale(l in Heriiu tl ea 111 tne iiioii th Sentemlier. diiriiii;- the entire jxTiod from ISSfJ to ISDO, inclusive. These three vessels are the Moiiiiliiiii Cliirf', in ISSS, liich were 1 place 111 w which took si.xty seals in the I'a^ the liecord discloses the l)oatsof no other vessel ever lowered, and this was, therefore, a chance pick- up of seal.s. The Vim, in lS!/(t, which took 370 seals in Septemlier; and the Sra Ijoii, in ISIIO, wiiicli took '•ahoiit MU(t seals in Septemlter." The total luimher of seals taken hy hunters who DURATION OK THE SEALING 8KASON IN HEKING SEA. fcstirtt'd oil tlic wifiicss stimd iit N'icturiji aiuouiitcil to ni'Mi-ly Tii.OOo. Tlic totnl iiuiulK'r tjikcii in Si'pti'iii i45 •r wiis 730. 'I'l k; |»rn|)(irtinii tiiki'ii in the iikhi itli of St'|>t('inl)t'r is MS one to one liiindrtMl. 'I'lic I'liitcd Stiitfs coiitciid tliiit there is no tfict in the Record so liniily estiildislied iis tlie titet tiiiit the reriniiiiitioii ot' |irolitiii)h' sejil liiintiii«>' in IJeriiiu' Sen WJis iietweeii the "iOth iind "Joth ot Aii<;iist. The Ar^iiinieiit on i)eh!ilf of fSrejit Hritiiiii cites the "'!!■ •^•'S-. !'■ witness Steele iis sjiyiiii;- tli;it tliere !ir(^ " some tine (hiys in Se|)teniiter, and that some tine catches are made in tliat month." ('ai)taiii Steeh- was never in ]{., kw, line Heriii"' Sea in SeptemixT, accordinji' to iiis testimony. "'• Captain Hakeris cited as remaininii' in tlie sea until '*■,■„"-"• '■"» tile L*iid of Septemlier. 'The record discloses tliat his last sealiiiji'dav was .Viiji'iist 21. tatemeiit is made that Captain .lacol)seii re Tl le s mai lied in the sea in 1S88 until the 7th of Septem- lier. 'I'iie testimony of Captain dacoltseii states he left the position in the sea where he was sealiii<4', SeptemUer 3. and does not state when he hunted last l)efore that date. 'I'lie statement maile that in certain vears there were only a limited niimher of l)oats (naminii' them) which remained in the sea without interference is correcteil hy the testimom' here jii\'en. 'i'he testimony cited in this .\rnument, estalilishino- the termination of the hunting' season in iieriii;;- Sea, Iocs not relate to the vo\aiies of vessels warned or interfered with hv revenue cutter; Wl erever tl le testiiiiuiiy disclosed that the voyaji'e was interfered with in any manner no reference has heeii made to tlu' testimon\-. The statement made in the Arirnmeiit, of the latest "■''■ •^•'K" i' voyaiii's ever made in Heriii<>' Sea and all made in the year 1S!J0, corrected, would read: Sni Liitii. 14 September; Vim, 12 Septemlier; (hidii l>rlh\ (i Septeinl)er; JiKdiihi, 2 September; (ii», line 17 ill It 2-H) DUKATION OK TIIK SKALlNti SKASON IN HKRlNti bKA. ir. /'. Sdi/ininl, 2S AiljiUst; I'ciicloiir, 'JG Alli;llst: /•.'. 11. Man ill, 31 Aiij:iist. 'I'lic incniu'c (if these diites is Se|iteiiil)er A. ( 'ii|)tiiiii Alexjiiider .McLeiiii is cited in the (»i)|»nsii|M Ar;^iiiiieiit iiiid tlie dltserviitioii iiiiide thiit the iiiiswer statinji' that he "li;:iired on jicttiii^' hack" alMHit the last ut' Aiiji'iist and the Idth ot' Septeiuhei', and the answer, ...1 • .1. ; i •-. .. :.. I'.. 11 ;. »i. i)..r.:.l. \ .^ U., irc, line 05. iisKcii, ill iiie nine iiiis iesiiiiiim\ »ii> jiiM-ii, ii mere was any inconsistency, and calh'il attention to the fact tliat the later time includeil the time re(|nired to make the ivtnrn voyajic. In conclnsion, every witness whose testimony is in the Iki'cord, when asked ji'enerally fe IMAGE EVALUATION TEST TARGET (MT-S) &c // ^y^^ 4^ 4^ 1.0 ^1^ ta ^M S^ §21 1 1.1 f."" 1^ I Inns -> ^ ■^' Ho HioliOgraplii Sciences Corporation ri>^ v « \ ;\ ^ 33 WIST MAIN STRUT WIBSTIR.N.Y. MStO (716)172^503 O^ ■ ^ ^ I . 24h e8ti.matei» catch DlScrSSKD. tliiit tlu- " lowering- diiys" wen* (isA, iind the cjitcli !I">S; tliiit the 4 «-jiiiiics <»t" till' Ctiniliiia woxM lii.vc lu'cii in tlic s«'ji 31 (liiys. or rj4 djiys for 1 cjiiioi'; the t'onniiiii tlicn :i|teil of its superHuous fiictor, the tormuhi proposed in the Ar tlir II II mill r III ililifs t'rnill tlir ililli ot srizilir (iir iriiniilii/) ot till- m liiiiiiii I to Aiiifiisl •//, mill iiiiilti/iliiil liji till- iiiliiiliir lit lioills (or iiiiiiiik) nil tlir siliihiiirr , tiiiii s llir iiKiiiliir of till i/.s from ilnli' of sv'iziii'v (or irnrn- hlfl) III til, jiii sHilllllilr iliisi of till sillsiiii, llflllll.s tlir /irnliillili riltrli iit tlir si liiiitlirr . The fjirts. whieh it is m-tvi-ssiU'v to iissmue in ion as a means of determining approximate eertainty. That these assumptions .Me reeouni/.ed in the Ar;;ument on Itehalf of ( Jreat Britain is shown in the illustration they j;ive of the applica- tion of their fonnula. The Ar;iinnent says: FJi. AfK., X'J, It'tlii'He tVair iiieii jliuiitfrs on the CnroU'iiH\ Iniil lifcii irork- hiij in miiUnij iriitrm liiiriiiij flic irliolf of Anijiiiit, wrnthrr niol othrr coHilitioiiH firing ximiliir to thai ci'iirrirnrvil liy the Marii Klltti, tlie total woiihl b«'. etc. These assumptions as to the duration of tin- sealinj; vova;>e in iierin^'- Sea, the universalitv (tf weather in line 13. t ■ a ESTIMATKI) CATCH KISCISSEK. 249 dirti-rciit jmrts of the wiitcrs tViM|Ut'Uti'(| l»v tlu' sciil- iii<>' vt'ssels, iiiid "otluT cniKlitioiis" an- all in tlicm- rselvfs |)rIov«mI as a liasis tor arriviii^i' at another proltaltilitN . '1 licy liave liecn t'nlly (h-alt with in this Ar;:unient un'innent on Itehalf of (ireat Mritain, except in relation to the duration of tlie season, the ahuiidanee of seals, aial the limited area in which they an- fouml, yet without which the nietlii •' proposed can not he applied, it is appan-nt the riouitications of these proltahilities are so wide that there is not the sli'ument on l)ehalf of (ireat Britain for a computation of an estiinate!•, line ratiii hetween them is aIto;i'ether lacking:-, except that of two witnesses, who make definite statements upon this point, viz: Captain Alexander .Mcl-.ean anSome vessels with Intlian hunters make very lar^e catches. n rolat- iii<:' tn tlic |iri)|Hirti<>iiiit<' liiiiitiii}:' power of hoats and fniliH's was iis follows: K., Slit, lin«< Well. I can't say; but I think six jjood white hunters would '•"'• be e<|ual to ten eanoe.s — the averajfe canoes. (j. You are now com]>iirin;; white hunters with Indians in canoes? A. Yes. No wifiu'sscs wen' |iro»liic(Ml to contriRUct tlii'sc statcmi'iits. .Mtlioii;ili tlicri' is no atti'iiiptto cstaldisli tlu- assiT- tioii in tlu' .\r^'UMU'nt on Ix-lialt' ot ( ircat liritain, ami no otlicr n'tcrciict' is niiKic to tlic snltjcct, it is of the jiTciitcst iniportfUHT in any iittcniiit to rearli a Itasis from wliifli to calcnlatf a "proWaltli' catch," for of all the vessels for wiiicli elainis are niaile for sncli earn- in;is liefore this llitiii ( 'onnnission, Itnt fonr — the !!•-'.?•-"",'"*• '/'A'""'"" ill li^H«i, anil the Triiiiiiii/i, I'dflifimln; tmA U.. J>>.>. Mill' ... 1 1.1 .11. :Rt. _ Anrl ni 1 H.S!t — eni|tioye«l sealin<>' l»oats with white '*■,•)-■'"'■ '"'"hnnters. In the case of the Ciiiofrini canoes were R., :ti'!i. lin.'iisetl. and Mlthon;;li the .Vrjjnint-nt on liehalf of (Ireat Mritain assumes that two white men in a canoe are e<|nal to three in a lioat, all the evidenci' which is worthy of eonsideration tends to disprove the assinnp- tion. Ketmniny' to the fornnila proposeil, let ns iipply it K., 2X0, liiinliy suhstitntiny in place of the Mtirif l-lllvii the Tlioiii- \{.,"x\-j. lino''^"- I'lii' liitterenti'H'd the sea on .Inly 2, 1S8(I; was 'is. KSTIMATKD CATCH 1>IS(;IIS8KD. 251 SC'IZ(*< 1 A U"US t 1 Sli (It //// If ciiiTM'd tdiir luiiitin;i' iMiiits witli |. ,,.,., , Tc men III ii hoiit, iiiid her ciitcli ii|i to tlic- tunc n » I- seizure wiis 4o;{. As it iiiiist l>e Jissiiinetl in tlie Ar;iiliiieiit on Iteliiilt' of (irciit liritiiin in coininitiiifi' the ealcli of tlie Tlmrn- t(ni l>y tlie proposed inetlKnl, tliiit lier liunters wt-re lis expi'i't iis those of the Mnifi I'.lliti, iiinl Wv fortune in tiinlin;;' sesih. 'ijUiil to thiit of the hitter vessel, tlie siiine iissinnptioii is ;i"iS. the daily average in ,luly exceediii}; that for Au;iiist. if there is any advantage, tlu'relore. it is in tavor of the ('lunlnm. Another fact, to wlii<"h the attention of the llifili ( '(•minissioiiers is called, is that the tlailv avera< a hunter on the Mai if Ellin in duly was S.41 seals, and tor a hunter on the 'Jlinnitini was H.'Mi. As a further test, let us suhstitute the IT. /'. Siii/- ininl for the Mmii Kllvn. •t It is stated in the Mritisli Aryuineiit that the record of the W. I'. Si iif/iriiiil IS iiicomp lete, hut an exainma- Itr. Arn., 7!», Iiiip:i5. li., 271). tioii of the testimony of Andrew Laiii<>' di.sclo.ses that tli»' data fin-nished l>y him is siithcieiit tor the purpose of comjmtinji- and estimatinp' a catch l»y the metliod projMtsed, as we have shown that the data in ■;fard t< I't o "loweniifi' days are siiiiertliious Hi Furthermore, there is no evidenct- l»efor«' the lli<>li ('ommi.ssion showiii"' that the IT. /'. Sm/intnl was 1 ' '■ 252 K., um, 17. R., a7i, s. K., W.tX, 12. ESTIMATED CATCH 1»I8CU88ED. K., 710. 28. R. 1725, iiitt'rt"«MV(l with «'liiilt' ot" Grciit Mntiiiii, was not <|iifsti»' daily catcli for one caiiot' rhiriii;;- tlit-sc tw«'nty-foiir days was, tlii'rt'foit', 1.S!I7. .Vssinnin^i' for tht' sake of ar<«ii- iiu-iit, and for the |Hir|iosc of (■oinpariii';- this hasis witii the oiu- ciiiphiycd iiv (treat Mritain, that thi' ('in(tlnin\\im\*\ have sfah'dtlic fiitirc iiionthof .\iit>iist, we woidd liavc an avcraiic catt-h diiriii;;- that month for each canoe of .~>7.>>: and th«' four eanoes used l»v tile ('(irnlriiii woiiM liave taken '2'iil seals. .\iiain, h't us take tlie IT. /'. Sitijiidiil in ISS!) as a Itasis in |ihiee of tlu' Mki/i Kllrii. Slie entered the ''"«.sea tiiat year on July 7. and lowered hist on Aiijiusi IS, a p»'riod of torty-tiireeday.s' iiiintin;.i'. She carried 14 eanofs. and iiiad«' a eateh of 1,'S12: the avera;>o |ter day for eaeii eaiioe would lie, tiieiH'fore, .'{."-Ul. < hie canoe tor tliirty-oiie ila\ s, the time chiimed as tile intended voyaji'e of the Ciiidliiiii, would at this ratio have taken 10l> seals, and an estimated catch for the ('iiihIiiik's -l canoes would therefore lie 400. lino Tak«' the same vessel in 181MI. .She entered the Sea June 21t, and lowered last, .\u;;ust 'JS, which would be sixty-one e catch i>f 1.024 skins, and for the thirfy-oiie days, assunietl as the tluration of the ('tiinlii)ii's voyajie, the 4 canoes of the latter schooner would 'lave taken 128 seals. On the hasis, therefore, of the 11". /'. Siii/iniril for the three vears l8H(i, 18S9, and 18!t(), we have, l»y adoptiii<>' tile method propo.sed in the Ar<>'unient on liehalf of (treat Mritain, the followin<>' variations as KSTIMATED CATCH 1)ISCU88KU. 253 nil estinuitiMl cjifrli tor tlu- Ciirnhiia iliirin;f the iiioiitli of Aiifiiisf, viz: lMI, KH>. ami 128. W'v may also CMinpan' tlic catclics ot" tli*' ^ftnf| Kllni ami tli«' ('iiiitliiiii (hiriiio' the iiioiitli of .Inly, lS8(i, for rlic purpose of reaeliiii;f a ratio of the hiiutiii;'' power of a l»oat usetl on the Mtirif I'lllni ami a eaiioe used on the Ciinilniii. The t-ateh of the Mnifi FJIvn from the 2.Stli of .June to flie ."Ust of July, inelusive, was 1,4.'{7 seals, whieli would In- a daily avera;;*' ••* '"^-41 seals for earl I hunter. The CiiidIiiki, \\».s\\\\\\\\ir that her seal in;"' praetically lM';>aii on the 1st dav of did v, "...•»"•'. ''"« took in thirty-one days (iS4 seals, or an avera<>e per day for eaeli hunter of a.'il. Such examples of the application of this method of eom|)Utin^- eateh nii;>'lit lie nudtiplied to the full extent of the data relatin;^' to the 70 vessels <,«-iven in the evi- deiiee produced het'on' the Commission; hut the fore- ;;-oin'inal .schetlule of claims was suhstantiallv the same as the Heriuji' Sea catch of the Miiifi i'Jhn, used in the present method; hut from the tt'stimonv jiiveii in conn«-ction with Kxhil>it \\ of the de(dara- tions made hy ,1. D. Warren, as ayent for the claim- ants, it appears that the average in the tahle was K., -'87. ol)tain(>d from the catch for tlif nitin srasoH. In or der, therefore, to maintain the averajre whi«'h was advanced in the orimnal scheme of estiniatini>- tl le 2f)4 K8TI.MATK1) CATCH UI8CJ:S8K1). « |irMl)jilil«- iiuiiiIkt of s<>)ils wliicli woiiiil liavc Ih'cii tiikfii l»y a sflitioii«M' s»'iz«Ml or wiiniol, it was iwccs- sarv tor tin- «-laiiiiants to atlopt some otiicr iiu'tliml tliaii oiii' Itascd ii|)oii an avcra;>f of tlif catclics of tlic vessels, tlie -i\e sueli lar;r«' resnits or lie more satisfactory to the claimants. A carefnl examination of th«- items for" Kstimated lialance of ( 'atch," a|)|iearin;^' in tlie schednle attached to the consideration of the separate claims in the Mritish Ar;innn'nt, testing;- each l»y the fornuila su;^- ••■ested. fails to disclose how the innnlters claimeil were reached. For example, the claim for the .liiiin llril,- is ."{.(Miit skins, while cah-idated as propo.sed the "proltaitle catch" would have l»een 4,OS2 ; the .1////- iiir's claim is .'{,5, according' to the fornnda, 4,21>N; the Triiniiiih (ISSit), ,H,:»(I(» claimed. '»,S;V2 «-omputed : and the .Irhl, 2,<>S() claimed, ;{.4;WI calculated. In the majoritv of cases these skins claimed as an estimat«-d cat«-li are ess tl lan won Id I lave // resulted from an application of the ".l/w/// AV/r method," while in a tew instain-es the claims exceed the calculated catch. The arbitrary chan^i'e of the ti^nres residtin<:' from an application of the method of calctdation proposed shows that it could not have heen deemed satisfactory or equitaitle even when su;>'''esteil. luunediatidv preceding, that portion of tin- Ar;iii- ment in which the modi of cal«-ulatin<>' "prohahle profits," Itased on the catch of the Marif I'JUiti, is ex- plained and advocatetl, ther • apju-ar five tallies. <:iv- iny what purports to l»e a summary of the evidence in re;iard to the vessels sealin,"' in H«'rinj>- Sea in the seasons from 1SS(J to IS'.IO, inclusive. I n view o f tl le in ethod su'iinM-nt liiitl Ik'i'II (U'livcrcfi uimI wlicii tli«' I'liittMl Stiiti-s liiul no o|)|)ortunity t'> rciily to siirli new itropositioii jiikI lU'W l»!isfs tor tilt' Dilniliitioii ot' si "su|>|iosc(| «'atrli." It is l)t'li('v«Ml l»y tilt' rnitt'il Stntt's tluit ( trtiit Mritiiiu prt'st'iitt'tl tt> this lli;r|| ('i)iiiiiiission wliat was ilt'fiiit'il tilt* most pliiusililt' int'tlitiil to lit' iitloptfil on tlif i'iit-ts, iiiitl tilt' out' wliifli tlit'V foiisidtTt'il to lit' nii)st t'lisv tit' iiiiitlii'iiiatifiil tlt'iiioiistratioii. Attt'iition is fallt'tl ti> tlif t'aft tliat at tlit- titiif wlu-ii ( Jrt'at Britain otit-rt'il t'vidciift' as to tlu' t-atfli tor tlie yt'ar IS'.M), it was strt'iniously olijt'fti'tl tt» t»n tlif part of tilt' I'liitt'd Statt's as lit'iiiji- rt'iniitf to tlif ipifstions at issuf; and at tlif sanif tiiiif it slioiilil lif iiotfd that from tlif tirst thf rnitfil Statfs liavts insistftl that all '"'• tfstimoiiy otffi'fd ftir thf piirptisf of fouiuliii}:- a hasis for thf fttmputation i»f a "proliahlf t-atfli " was irrt'l- f vaiit, anti oiifrht in»t to lif fiitfrftl upon l»y thf ( 'oiii- missioiifrs, on thf ;^'i'oiintl that fiitni'f protits t-oiild not lif rt't'ovfi-fil hy thf flaimaiits. Thf ptn'tioii t>f tlio K'ffonl rt'latinrfSfiitfd l»y (Jrfat Ih'itaiii, ami is now appart'iitly ahandoiifil. is as follinvs: Thf sfiiiorCtunisfl on lifhalf of thf rnitt-d Statt-s: "-,'--• ""« There is no ])r)ibable t'att;!i ciaiiiietl for ISiMI. anil we mib- iiiit that it is remote, ami the .same rule woultl t-over as was in tlie minds of yonr iioiiors wlien you exclntled any exuini- nationof Mr. Alexantler, tlie I'nitetl States Fishery Comiuis sion agent, by us, as to tlie t-atches of 1804 aiitl lSi)/3. Of course, if there was a probable cateh clainietl for 189() there woultl be nt> t|UCstioii about it under your honors' ruling; tt> take the te.stiiiiony as to probable eatches, reserving the (piestioii for future argument. There is no iiuestion here as p;' 266 K.STIMATKK CATCH DISCUHSEU. to tlie raMt'H III' Hei/iin-s in IHS4I, wIump tlit-y eliiimed llip lirottiihlc ciitili for ISH", or tin' Ht'lziircw lor 1«M7, wlitTf tln»y clainuMl the proliabli' ciitrli lor IHH^ 'I'lic ('numiissidiicr on tlit- |iiirt nf llcr Miijcstv : I do not r«>nuMnlM*i' wliiit wim iiiIimI hvloio, but it hi'I'mik to inc tliikt tin* ciitcli lor any ruaHonalik^ year, t^Hpt'ciiilly al'lt'i tin- tinif in r«'s|H'<-t to wliicli tln> claim is made, would liavf a lifarinj;, h«'canNe prfNiimMldy tim seals are not apprecinbly Kieater. Tliei'd'ore, at ail events, within a limited number of years tliey may be considered to be about the same in nnm ber, and the eateli in any year to be reasonably elime — not get tint; too remote I'rom the dato in queHtiiui — would seem to me to have a ' ery obviouH bearing upon the probable eateh for the year in <|uestion. If we have ruled (uit evidence of this kiinl in IH!tl, the proper <'ourse would be to allow that evidentre to lie ^'iven, if it is considered that 1M>4 is not too remote. Tlu' ( 'oiiiiiiissioinT oil tlu' part td" tin- I'liitcMl Stiitcs: It was ruled out after very careful eonsideration. 'I'lic ('iiiiiinissiuiu'r Mil tlu' piirt of llcr Miijcsty: The evidence ini|;;ht not be admissible in 18))4, Itecause at that time the mode of sealing was changed after the regula tioim (tame in force, and, of eouiHe, with a chnnged mode of sealing the «;ircuinstance8 would not be the same and the evidence would not be applicable; but it wiuild be otherwise where the mode of fishing is the same. It would scciii tVoiii tlic tiict tliat (ircat liritaiii liaviiio' oU'crcd so iiiiicli tt'stiiiioiiy in rc^iunl to I Slid, iiiul all flic oflu-r years troin 18S(i ii|i to that time, there was prciiicdifatcd tliiriii;i' the early sessions ot the (!oiiiiiiissioii at X'ictoria a plaii to reach approxi- mate ci-rtainty l>y inciins lyiii<>- tin* \aminatioii of the testimony, it was found that in a larjic numher of cases the evidence was incomplete, and in a still lar}>'er nmnher was uncertain, throuo'h immerous contradictions in the testimony <»f different witiH'sses. This p-ound f(»r the conclusion apparently reached l)v (ireat Britain is reasonahle, and, as the KBTIMATEU lATCII liIH( IISSKIJ. 967 I'liitfd Stiif«'s cniii-fivf, fully iiistiti«-t| in iin «>\iiiiiiiiii- tioii iif the lit'ninl. I'i-i>l)iil)ility, iVniii tlic tiiiif tlijit it lins Ixm-ii trcntcil as ii In'iinrli 'h ( 'oMnMissionci's>''»vy'' '''''^■> will not atlopt any nii'thoil ot' roniputation whit-h p.'Viix. ' (txchiy matheniatieians, there is Iteforethe llijih Conunission no ailo!ive jieneial K.^iWl, 'i'i'f,.„ti,,„„,y ,,f fl„. vjilne of seal skins in tlie market of Victoria in tlie years when tlie seiznres Ityflie United States were made. .\ir. Lnldte testitii'd tliat tlie Alaska (.onnnercial Company, of San Francisco, at tliat time lessees from tlie (Jovernment of tlie I'liited States of tlie I'lJUof Islands (]{.. lss;{, line 2;$), H«'ssen;>»'r i\c ( 'o. (I{., Is'm, line (l"t), Tlie ilndson Hay Company (If., IK'.M, line (iO), I,iel»esi\: Co, of San l-'rancisco (H., lO.'M, line2;{), I. iV: A. hoscowitz (|{., l!l.'{-_», line •_'!) and liiinself. representiii|i' .Martin Hates, dr., tt Co., of New York, were piirdiast-rs of seal skins in the market of Victo- ria ill the Near 1SH6; that .1. riilnian it ( 'o., of New York {l{., IS.SS, line 2!l). Lieltes &. Co.. of San Fran- cisco (|{., l.Ss;{, line <{.")), the lliid.son Hav ( 'ompanv (|{.. 1.s«;;, line ;{(;), d. Hoscowitz ( l{., l-SIM), line .•;."»■), and liinis(df, representin<;- .Martin Hates, dr.. it ( 'o., wi-re pnrcha.sers of seal skins in the market of \'ictoria in I.SST; that Walter Horns, dosepli riilman, of New York, II. Liehes iM: Co., of San Francisco, himselt", represeiitiii;iMartiii Hates.,Ir..i\c Co-.The lliid.son Hav K., IHsl, liMe( ',„,,. ,.,,,^. .,,,,1 I ^\^ \ HoscowitZ Were purchasers in the market of \ ictoria in ISSIt. Ill the Near lS8f! nil skins tak«'n in Herinji' Sea and on the coast Ity .seal hnnters from the port of 258 TIIK VALIi; OF HEAI. sKINH. 259 Viet nriii wen- s(iM ill tlif iiiiirk«-t.H ul' N'ictnrin nr Siiii nninMrn 'I'l wrv IS nil «'Viilciii-<- III tlic I any wiles in thiit \ fiir clscw here n iciMlnrr hiiMi M- iinirniiscM III tlijit vt-iii' ii ict'un t Virt< I of inn 16,7!*7 skins, il. Lifltcs iV: Co., nf Siiii I'ViiiiciscM, imn-litisfil on tin- const in ISsn, T.'iOiJ skins, jiihI tin- Aliiskii ( 'oiiiniri'fiiil ( 'iiiii|iiiny lMiii;;lit i\ liir;i'<- iiiiiintity K.. IKX-J, llii« ri4i, >\' skins in N'irtonn tlint vciir. 'I'lic witness. 'rlietn|ni» l.iilil »e. WHS tlie imcnt for tlie sale of tile Mm// i'.lli ii'. .skins ill tlie year iSSd: in t'iict, as lie stated. '•! uwiieil "jx''". I'ue in lier." ami sold tlie skins to p > Alaska ( 'oiiiineirial ( 'oiii|iaiiy's re|ires«Mitati>e> at \ ietoiiji tor >«(;,5o n skill. In tliat year !{essiii;;'<(i.,'iO tti !^7 per skin, l.ioln' testilie'': if. .Mr. liUhlie. tlu'io were punlr.ise.s of the lU-riiii; Sea eatcli here in Vietoriu in IH.SO* A. Yes, sir. ii. Can you tel' ine wliat tlicy wi-ie Hohl loit A. Tlie highest 1 know was |7 and the hiwest 't^VM, The market value ot' .seal skins in tlie market «7. Tlie rlainiaiits demand tlie lii;;liest priee. Tliey should Im' alloweii the averajie market price. In the vear 1SS7 there were no skins sold directly I.'.. ls!i;i, line Hi. >V owners o f sealin "• vessels in aiiv other mar th iket tl lan in tlio markets of VMctoria aial San Fraiwisco. In that vear Liel>es &. Co. purchased 17, !•;'»(; skins. K. i9- tor the hiehes nriii in the js. market of San Francis<'o that year. A total cati'li of 10,200 in llcriii!/ S)(i was all pur- chased in Victoria l»y riilman, IJeln's it Co., Hudson 'f-. 18«3. liuo Hay Company, and Liiblie. The only witness sworn as to the mar skins in 1; ket vahie of the city of Victoria in tliv; year 1H87 was Theodore liubbe, who testified that he purchased from K., 18sl', lin« Charles Spriiiff & Co., on the lOtli day of October, "• 260 THK VALUE OF SEAL SKINS. 1 R.. 1882, 33. Brit.Arg. liue 13. 85, R.. 1883, 30. liuo Brit. Arg. line L'. }{., 1SK3, 32. I{.. 1883. 34. K.. 1884, 4. !{., 18«l, 13. 18S7, l,()2.") sciil skins, at 84.50 each, au^l..")(> for each seal skin of the licnnfi Sea ((itcli of his schooner h'lil)' in that year. Uhhnan & Co., ot New \ ork, lioujjht ot Munsie the 2,377 seal .skins taken by the l'tithliu((vi\ at >*6 per skin. ,85, 'W^, statement is made in the .Vrjiument tin behalf of (Jreat Britain that the skins sold by Munsie to Uhhnan were less valuable because of the number of jiTay pups <'ontained in the lot. liiibbe testifi«'d: Amongst these l.',3"" th»'ie may liave been 10 or 15 gray paps, wliich would change my figures slightly, but would not amount to anything. Lubbc bought the I'dit'lofif's collection of 1,'»(I0 skins at ><.">."»0. This same year, 1S,S7, Lul)be states that skins were sold at the following prices in \'i«'to- ria: Other skins from the I'dflifiiiilit; N^.fiO; from the I'i'iirliijii' and rill rcxii, ^."). "_*.">. I think they are subject to a very slight increase on account of a lew gray paps. It would not amount to any more than •*'> ce .ts ])cr skin, linn {.). \\»\ all these skins were llcringSca skins, or northern coast '. \. Yes, sir: Herlng Sea skins. (i». Could yon give us the diit«' of that last ptnchas*'? A. October 11, l.SST. line liiii' line THE VALUE OF SEAL SKINS. 261 Mr. Lul»i>e testified that in 1SS7 ho miKU; tliisR j^»'32, Hue ineintnandum in his hook: "lllihuiin appesued to have eiiou«>h. Davis (ridman's af-eiit) (roiild have l)oii<>ht a htt at 8")." Kxaiiiiiie«l as to the avera<>e market |»nce t»f skins in 1SS7 in tlie city of Victoria, Mr. Iinl>he said: Q. Ill 1887 would *r>.50 be a good I'liir average? |{., i!»33, huo A. I should think so: yes, sir. :«». Q. F<.r all f A. Yes, sir; tor all. This means lierinjj- Sen skins. (Japtain Warren, examined as to the market price of skins in the yeju- 1SS7 at Victoria, said: i}. What was tiie ruling market price of skins in Victoria H., is7l', line in the year 1S,H7 in the fall! H- A. Well, as near as 1 can remember, it was about •'5'r>.50, what the buyers were paying here. This testimony conchisively estahHslies that the market price of fur .seal skins in the city of Victoria in tile fall of 1SS7 was s'».")(>. Tlu'r*' isiio other testi- mony in the iJeconl heariii";' n|»on the averajjc market price of seal skins at Victoria in that vear. .VHidavits orijiinally tiled hy the claimants iuiil '*' ''"*"■ found in the Uritish case prest'iited to the Tril)unal of Arhitnition at Paris were read into the Reconl. The affidavit of ('apt. .Fames I). Warren, prejiiiied in connection with flie claims of the hii//iliiii,t]\v (inirr, the Saifinini, and the Ainiii Itirh, claimed for each seal skin seized So.fjO, the imirket value at N'ictoria in the •*:,'•'"'• "'"' year 1SS7. The affidavit filed in connecnon with the claim of the Add, which Wiis made on the Utii dav of Deceiii- her, 1SS7, claimetl for tiie seid skins seized hv the u., iikh, line cutter >i.").r»0 per skin, the luarket \alue of seal skins in N'ictoria in 18S7. The value of seal skins in the yefU' I8SS is not directly involveil, and the testinionv is not important. !;-;■ i:i. II "4 m ill ::l 2fi2 TIIK VAUJK OK SKAL SKINS. Tilt' rlaiin is iiiiKlc tor >»11 for I'acli skin seized in the y«'iir 1889. Mr. LiiltlK- tcstifiiMl: R., 1K)6, line Q, You liav«' been asked to say whether a certain sum ^''- wouM lie a fair average of the northwest coast catch as T.anipson chissitied them in 1889, and you also say that that is not a fair way to net an average price for Berinj; Sea skins. Can yoii i/ire us the nrerniir ftrivv for livrituj St'ii xkinHjhr the yiiir 1>S').' A. Vou mean a sum in London and heref (}. Take it hotli ways, if you csai, or if you can not, give us eitlier one way or tlie otiier. A. The price here inix s;.7.') mid s^jio in Iss!). The price in IjinuloH, I xhuuld think, inmltl raiifii lietireeii SH.iO ami S!>.'>(>; the net rexiiltx to xhippers ej'piirtiiiij skins would lie between su.llt and s:>..',i), the iirerat/e regnlts. K._,^i9:ts. lii... M,. |^„l,l„. jitterwanls state jter cent coast catcli, the average wouhl be more tlian ^l.M. Q. IJut as tliey ran in ISHO, from your knowledge of the market. *7.L'(( would be a fair average, would itf A. Yes; 1 should tliink so. Inasinneh as manv skins seized t'ntin the seho»»ners in l8Si( were ot" the eoa.st eatcli, this averaj^e price of >^7.2n per skin in Victoria wmdd seem to be a fair vahie for the skins taken from the .schooners. The lii<;liest market price of .skins in N'ietoria in 1889 was between !^7.7r) and !^7.60. There is no testimony in the Hecord opposed to this, and in tln' Arjiiinient on behalf of Great Hritain the J''^*'4''t-''l'- price of skins is dismissed with one statement that Munsie says that he sold some in London for 8 11.0(t'"{. R., 1863, line Mimsie testified as to sales made in London in the vear 1881». lie .sold some at 87.112. He .sold other ^•^0.*"^' ''""skins in 188;t at >i8.1(».-|. The date of that sale was • October ;{(•. 188!i. He testilied that he .s(»ld (»ne h>t for 8ll.(Mi'|. I . THE VALUE OF SKAL SKINS. 263 TIio claiiiiimts, iti the oHfriiml iiftidnvits contjiincd" -, ^'JOO; •{•- in tht' British case tih'd at I'aris, and whirli were "*' read into the Kecord, all ilainied tlie market vahie at Victoria. Charles Spriiij-', in his attidavit made in 1S8'J, inu. ukx), line connection with the claim of the Kute, said: "'" The market value of seal skins at Victoria aforesaid, at or about tlie time the Kute arrived from said voyage and since that time, was, and now is, $8 per skin. Samuel Hncknam, in the attidavit maile in connec- tion with the claim of the AtitI and sworn to in Xo\end)er, lS8i), .said: The .selliiifj i»rice of seal skins at said \ictoria on the said !>'■. iiH)(), line arrival of the Arid and on tiie Ist October, about which ^"■ time sealinfj vessels usually arrive at Victoria from a fall sea.son's voyage, was .*,S i)er skin. 'I'lie artidavits of all the other claimants contained a reterence to the iimil.cf raho' t price in LoikIoii in ISSil was s«|.4f) t,; sM.fto net at N'ictoria. 'I'hi' I'nitcfl States eoiitend, as stateil in anollier part ot" this Arjiiiineiit, that the price of tlie seal skins seized is lixetl l>v the market ]»rice riiMnii' in the city (•f Victoria at the time that the vessels woiihl have ih'hverecl tlieir skins there tor sah'. No rnh' of hiw is more firmly estahlished than that which declares tiiat in case of a loss of car"'o hefore a vo\aue at soa is completed the value of the car<>' vessels of a class similar to those, for which claims are presentt'd, at the time of the seizures. In discussin;^' the method of reachin<>' a proper valuation, counsel on Itehalf of <^}reat Mritain said: I propose tosliow tliat there are ten or lifteeii vessels, and that tliosf vessels atrtnally cost so ninch to bnihl. I projiose to show that by the very besl eviden(x\ The ('(nnmissioner on hehalf of the I'nited States su^i'^ested that actual sales of similar v<'ssels at that time would j^ive some idea of the market. To this the reply was made: / ain iioiiii) to itrurv flie ncfiial sales and the avtuat cost ()/'i(.,i20, 80HU' rrsscls. Aoain he said: How can I show better the value than by giving evidence ^ io3_ as wliat vessels were sold lor at that thnc. ' In view of those statenuMits of couuscd, we would anticipate that, under the first (dass of evidence suh- n K. .'ii 2G5 ij'i lil 266 EVIDENCE — VALUE OF VESSELS. initt(Ml,(irt*at Hritiiin \v«niM luivf proved, or atteniptiMl tojn'ovf. ii iiiiiu)KM-iit' sjilf^s iit tlu' port of Victuriji i»t' vessels siiitiil)le lor sefiliiij>- •liiriii''- tlie period from 1.SS5 to 1S8H, inclusive. Hut no witnesses were pro- duci'd on beliidf of the cliiiuiants in referenci' to such sales except in tlie case i»f tlie seized schooner ('(iin- Iritd, although the record dis«doses that at h'ast ten vessels chanjicd hands at Victoria durinf>- tlu>se years. As these sales are deemed of chief importance in determinin;'' the prices ridinji' in the Victoria market at that time, it ispropo.sed here to submit a summary of the evidence relatin;i' thereto, dassilieil accordin;,'' to the years in wliich the transfers ttM>k place. lS8r> OK 188(1. The Alfrcil Aihims (GS.To tons) was sold at \'ictoria to Untman it Frank. Hut Krank, who was a wit- ness on l)ehalf of (ireat Hritain l»efore the (Jonnnis- sioners, was not (pU'stioned as to tiiis .sale. The llliiil; /)i(tiii(iiiil {XlSil tons) was sold at Victoria al)ouf the same time, and was purcha.sed hy the same lirm, l)ut no ipiestions were asked the witness Krank concerninji' this sale. Henry I'a.xton, a witness for (treat Hritain, and part owner of the vessel, in iSSti .stated iditlfr ciiiss- I .nuiihniliiiii that (Jutman l>ou;.>ht oiie-liltli of hei' in 188r> or ISSC. iind that witness did also, and that he (I'axton) paid >^."i0(t for iiis one-fifth. In Noveml»er, liiir 18S7, he soil! his Iiitei'est to (iiitman for the same consideration. I. SSI). A 1 !■ X 11 II .McL." K.,412, lU. llcT :i II , liiir ,\ li' xa II M.I.v 1(..IIJ. H. . I'm I. 10. K.. ITlil. I. .Icr lilK liiii The Acfirr (4<> tons) was sold at N'ictoria for aliout Mri',!'!iii'. ^3,S(I(), to "(Jutman it ( "o." (i. e.. (Jutman it Frank, |{.. ii7,iiii.;,s (Jutman was sultseipiently lost upon this vessel). The witness Frank ^ives no testimony in regard to this sale. KVIDEXfK — VAI.IK OK VKSSKLS. 2fi7 M c I, I>'.,l(llMii Tlic Ftdiiitrili {~!\l')[ tons) wiis triiiisfcncil fur '^V.'^ ■""'''' S3,()U(», "just MS slic ciimc tVidii sci." All «'ii(l«'iivnr wiis iii;i(|«- uit the |»:irt of ( Jrcjit Uritiiiii to coiitriHlict tliis tfstinioiiy of Mcl^ciiii, iiiid for tliiit purpose Theodore I.iiMk' wits sworn as ii witness in ivliilion to the tninsfers of this vessel, lint his exiiini- iiiition il,S()0. Charles Spriiij.;', a elaiinaiit Itefore the Com- i.'.'.KKu'ille mission •17. iiid a party to the sale, was not (|iiestioiied in his direct examinati<.ii rejiiirdinii' the transfer, hut on iross-ixtiiniiKitiiiii he corroborated the statement ofH.. xi Mel. •L'. line ean. rjie Mdiit Elhii (78-S() toii.s) was .sold at N'ictoria ";/"."'''; 'le rate of "somethinji- h'ss than si,;-,u()." Th at tl sale was evH leiitl <■ .1' am I iia- Imt V a matter of common kiiowled ii'e I ion. \i. IS1.>. line !l. no witnesses w<'re p/odnced by (Jreat Hritain to.viexan.i establish the consideration which |»assed 'I'lie Marif 'I'lii/ldr (;"»(> tons) was sold at N'ictoria aiioiit ISSfj, and .1. 1). Warren, the au'eiit of Thoii I' it 11 , M .i I. K'., lOlMiiir .\ le X a uilti r II. c lilf* .M«l, ooper, the lai';;'est claimant, on iiDss-r.nnii'iiKitinii l<-.n;t. im. ■itates that he purchased the ves.sel. but n is produced by (ireat IJritaiii as to the incidents of '^•'• lo evMleuce l!.. ii.->t!, Um le sale 'V\\v .hxtiiitii (40 tons) was .sold at Victoria about ^^''i'!i "'.''"■ Mcl,..iin, 1S8(;. .Mcl..eaii stated that he (lid not know for what if.,ii'-M price the vessel was sold, but no witness was produced on behalf of (Ireat Britain to dispntve the .statement nt McLeaii that the vessel was sold or one to testifv as to tl le cousidoration riie 'l/irrtsn ((13 tolls) was .sold at N'ictoria. but no ■^'"'^ '""'*•' evidence was produced on the part of (Jreat Hritaiii i.'.',ii:ri' conceniinji' this sah M (' I.ea II, me \y (ittilirtr (1(1 tons) was .soM at N'ictoria bv John .Sabistoii. oiu' of the witi lesses sworn on be half If i' nr »ii 208 EVIDENCK — VALl'E OF VESSELS. <»t" Cirt'iit Itritiiiii in ivjfjird t(» the valiit' of vcshcIs. u. 211 liti.' '''*' ♦"«■♦<'' fl'i'* '*"'t' \^'"* elicited tVoin liiiii under r/v/.s.s- 15.^ r.niiiiiiKifiiiH, Imt on liis redirect examination the wit- 51? ' ' ' •I*''*'* "■"•'' ""' "">/'■'■'/ "■"<■ /" '/"' coiis'iibtutiuH, hut wliuf it tost liiiti to hiiilil the rrssft. besides the sah-s whicli took phu'e in iHSo and 1886, and which are of a special vahie in deterniininji the market ]>rice of vessels at Vict(»ria at the time of the seizures, the evidence disch>ses the foUowinjr transf«'rs, which, though in a measure ren)ote, liave a bt!arin tons) was one-lialf sohl, about the time she was humched, by AiKh'ew Lain;;- to .J. 1). Warren. Neither of the parties to the sah-, who were witnesses before the Commission, were questioned as to tlie im-idents connected with it, and the only source .54 tons) was partly sold at Vic- toria to Alexander McLean. He purchased sixteen shares in the vessel for ^1,337..')(> (that is, at the rate of N'),,'{5(> for the vessel). The evidence concernin;;' ''»« this sale was produced by(Jreat Hritain for the purpose i>f contradictin^i' the t«'.stimony of McLean, to which reference has been made above. In re^^ard to the consideration for the sixteen shares purchased, it liii«nnist be borne in iiiiml that this was "a master's interest." and therefore the j»urchase price was hi^iher than the usual valuation of .shares to ordinarv pur- chaser.s. The entire vessel was a;>ain sold in Decem- ber, 1SS4, to ('. Hprin^i- tV: Co., for 84,.")0(). EVIDENCK — VALUE OV VESSELS. 2(i9 18S4. TIlC /w»/e (()(> tons) Wits (ilU'-tllinl sold. For tllc Alliiiiiin(; n Viiluution ol tla- (hurdiil K..iiio, ime mtuji'lit out on tin- cross-cxiiiiiiiiiition of Cliarlt's "*'■ Siirin- that the consideration was ><2.8<>(l. I'-.^x!"'. l'"e Till' Mouutn'ni Cliicf (20 tons) was sold at Victoria for "soinethinj-' li-ss than snilO," l.ut (ireat Britain '^V,';:';;;',!;;^ failed to imMluce a witness to "ive the facts coiniected i.'..i(«t. line with the sale or to ct»ntradict the testimony of Mi-Loan. The Oiiirfiril (3r» t(»ns) was sold to ('. Sprinji' it Co. for S2,2()0. This testimony was hronjiht ont on the n-oss-(\miii illation of Siiriny above referred to. "•...^'i.lu, !!°* HL 1S8!I. The Triumph (!>7 ton.s) was sold at Victoria to ^fMr-^V,'.^!'^?,;'^,'' vin and Cox by E. C. Jiaker for s,s,oO(l or s;),()()o. i{., iia.iine Cox and Hakor were l)oth .sworn as witnesses on be-K.',' iiii. line half of the claimants, but neither was (piestioned "■ on direct examination in rejj'ard to this sale. Mr. Baker however, on n-oss-r.iviiiiiHifidii, stated that the vessel was .sold on ( )ctol»er 11, 1S8:>, for n!),00(>, "forK. iim, liue everythin<>-, asshe was then lyinther su])plies on board at the time of the sale. In the year ISXC, there ajjpear to have lieen 22 vessels actually enjia^ed in sealinji', fri»m the pt>rt of Victoria. Of this numl)er, 12 had their ports of orijiin on the I'acific Coast of the I'nited States. 1 on the Atlantic Coast of the I'nited States, 1 in Nova Scotia, 27(» KVIDKNCK — VAI.rK oK VKHSELS. jiiiil s ill Hritisli ('uliiiiihiii; nf' wliicli hitter iiuimIm r ^ I, .,. Init l\ were luiill iit Virtoriii, iiiwl tlicsc in tlic vi-min 1S^;1 tiiiil ISS-J, It is !i]i|iin'ciit tliiil tlic fillet' suiinc ot suiiply tor tile N'ietiniii seiiliii;^' H«'et ill 1SS(> were the slii|»viir(lsnii tlie I'jieilie ('(»iist of the I'liiteil Stntes, iilitl it is ii iiiiitter of (•(iiiiiiinii klKiw h'd^'e tliiit S;iii Kniiieiseo wiis the iniiieiujil luiirket for vessels mi tliiit const. I'liiler these rireiinistiiiiees the iiuirkel Viihu* ut' seiiliiij;- eriitf in 1SS<; ;iiul 1SS7 nt the hitter pnii, wilh the eiistoiii (hities nii, iiinl cost ot' delivery iit N'iottiriji (if vessels i>{' tliiit ehiss, is iiuiteri.il in ileteriiiiliili;!' the |iriee uhtiiiiiiiiL; ;il \ ictnriii (liirinj:' the periml when the seizures were iiiiide in Meiin;:' Seii. The .letUiil Sides of schooners of li;;lit Inirtheii iit Siiii Fiiincisco diirin;j- these yeiirs evidence the riil- iny- niiirket iirices iit tliiit time. W. II. 'riioinley, ii witness on iieliiilf of the I'niti'd Stiites heforethe llij;li i(,i7Ji. liiiiCoininissioii. who is the most experienced ship broker ' in S;iii Friiiicix'o, iind whose tirni represents ltd per cent ot' the vessels re;;istered jit tliiit port, iilid who liiis peisoiiiillv iitteiided to 75 per cent of the tnnis- fers of seidiii;;- schooners there, testilied to ji hii'o-e nunilter of sides of vessels rimjiin^i' in foniuijie from lifty to ii hundred iind thirty, of which he Inid persoiiiil kiioaleil^ic of the coiisideiiition. The fol- lowini;' is ii list ot the vessels ref<'rred to, sold in issii iind ISST. their toniiJi^i'. <;-,,()( iQ. •'"•' (iitlihii (idfr (•»;} tons); liiiilt in 1S74: oiie-eijrhtli Wiis .sold lit the lilte of >>'),( MM), liuo IniKi (Ifi tolls); Imilt in 1S83: oiie-ei;;hth wiis sold !it the riite of s(;,40(). line Intiiliiir (114 toii.s); built ill 18(19; one-eighth wiis sold iit the rate of s4,oot». KVIDKNCK — VALIK (H' VKHSKI.8. 271 I'liiji (lOl tons): liiiilt ill MMssiicliiisctts in ls31 ; Km^i"-'-'. i''i'' itiu-li.iirtli wiis sold in ISSC wx tlic nitc <.r>*4.(K)(t. Sim -hisr (h2 tiiiis): luiilt in ISSd; uiu-ftMu-fli wiis '<''--• i sol. I iit tlic nitf ots4.2(Kl. issT. /Ao/wov* (I117 tons): liuilt in ls77; niu-ci;;litli wmsK., iTJ:t. lim- soM iit tlif riitc ors.-,,21t;. ' C'llji of Still liiri/i, (4(J tons): l»uilt in issl; uiu-i<-. i'-':'. ii"<' loiirtli was sold nt tlit- rate of n1.2(I(». Iniiiliiii (\\4 tons): liiiilt in is«i!i: ti\c-sixttM'ntlis u.. in-n, imc wen- sold at tlu- rate of n;{,-_>()0. ' ' hillii A. ((;;} tons): laiilt in issT: ,,ii,.-tliirtcfntliK -itj:!. line was soM at the rat«' of n.-),2(">. '' Bcsidi's till' for»';>-oin;i- sales, Mr. 'I'liornlt-y tcstiliftl to transfers of otlu-i' \i'ssfls of tlic same class wliitli appeared l)v the hooks of the San Krancisro "" the rate of n-J,oo(». "' Joliii X. hifliil/s{^\\\ tons): liuilt in ls7.'t: one-cijihth "■• i":'"iiii<' was .sold at tlie rate of s4,o()(l. 18S7. Aiiifrl Ihtlhi (l!t tons), liuilt in 1S6(», was sold torU-- iTiMi.iin.- !^l,(»(i(). '"' Alloii (81 ton.s), liuilt in ISSC. was sold tor ^^3,0(l(). "■;,|i'!"i- ''"'■ .Inhii S. hii/iills (Ul tons), liuilt in 1^7.'): one-sixth u." it'.it. line was sold at the rate of n j.^Od. '"• The testimony of Mr. Thoridey was supplemented":."'''''' '■"' and cfinHrmed liy ('apt. Andrew Anderson, a lar' ami wliieh was;iiven i»y faptain Amlerscm; ami Walter Walker, a witness urodneed on liehalt' of (Jreat llritain, stated that vessels coidd Im- l)oii;iht cheapef in San Kranciseu than ill N'ictoriii, "hecaiis*' there was a larjie iniinlter of schooners there to choose tVoiii." The ('aiiadiaii iliity iipoii vessels of this class and the cost of lirin;:iii^' the same to Vi«'toria from San Kraiici.sco is iin]iortant in estaldishinj)' at what cost these vessels coiild lie sii|n»lieer cent, and the expense of l»rin;>in;i- them from San I'Vaiicisco was liei cell >^235 and ^2"iO. From the lists of >, ■< testified to as liaviii;,'' taken wlace at \ ictoria, alio lioiii the lists ^fiveii l»y Mr. riiornley. the following;' tal)les have lieeii prepare(l which show tin- avera^if price paid per ton for ves.sels actually sold at N'ictoria, ane price per ton at N'ictoria for vessels huilt on the Pacific Coast and sold at San Krancisco in iSSfi and 1SS7: .liirwii /ir'ii imid jirr Idii I'oi" ■•iieh Kiilil at yiiliiriii. u Vi'ar. I885| 111- Allriil .Adiilin. 18S7 1883 1884 Tciii- llHKi'. (18. 7.'i ltl;iik IliaiiioiHl 81.57 ''■ivoiiilli' 71). 54 Mil- M Miiry Ell™ 7H-8l Sun IMpgii.. I \ iiiihiM< I.il\ I Sfctiiitl Thontley iiel, Iti'Hnli* Kvertlln^ IHX? •inliu N. InuitllN. AiiKi'l Ihillv ... Altiiii Mjtrlmni 'lohliN. Iiiuulla. Toil I3U Kl Kt 114 5!l HIT 4« 114 iia 7(1 IKI 01 111 M4 107 III '" ••"" Vi.-lMlijIff Year I'-l Hi.''* I'.' «l HJ ;i 711. :rj i; 411. 7» ti 113 ll.'i III .'..'.. *» « iil.:iu i» ;i:i. 117 II W.Trt III HJ. U 111 jii. :i4 II .'il.WI 27 71.0.'i 1 VJ.iitl III .-a 7:1 VI 511. Ol ir 'Ciwt |ii'i tonili'liviTt'iliil Vii'tiiriii' iHlMiHi'iliiiitlicnjiiiiirtiii'VtiKwIiii San riiin..'Wici Willi III)' ilnlv, 10 |ii r cent, aililiil anil i'S*). tlii' hiiilii'xl priii' IImiI liir lirinuinu a vmnil rroiii Sun Frani'JKrii tn Vlrtiiria. hKi'liiillt. Ill foiitrast tn tliis cvidciifc priiduciMl on tlic piirl (it" tlu' I'nitcfl Stiitcs wliicli ♦•stiildislicd nine siiK-.s nt' sciiliii;^- vessels at N'ietoriii in IHSC iinil ISST, and six- teen at Sun Francisen in the same years, and taken in eonnectinii w itii the statement nt' loiiiisel mi Itehalt' of (Jreat Uritain as to the value ot" "actual sales" as evi(h'iiee of market value, is the followinj; list of transfers at N'ietoi'ia proved l>y witnesses prodiieed liy (treat Hritain, and which it is contended are of little, if any, assistance in determinin;-- the market value, lieinji' so few in number, and their dates so remote to the time when the seizures occurred. 1890. Maril 7V////ar (;">(» ttiiis), huilt in 1.S75, was sold atR., 105. \'ictoria by VVaiTeu to Muiisie for about 84,000. 18!»;{. Vera ((»(» tons), built in 188S, wks sold at Victoria R, i^i. for $7,442. B s 35 1^:1' i:i ^iij 274 R.. 141. R., 105. K., 104. K., l.^f. K.. l.Vt. R., lOJ. K., 754. 47. K . 1424, 30. EVIDENCE — VALIE OF VESSELS. Ainiic /•;. /';")..")()(•. Itcsidt's tlu'st' .saU's at \'ictona, (livat Britain pro- (hu'cd evidence to estaldisli wliat was tlie cost of ves- sels, |>nrciias(Ml in Nova Scotia, when delivered at Victoria. The sdiooners hnilt in the east were of a sn|>erior class of niat«'rial and worknianship to those jtrodiiced in the shipyards of the I'acilic ('(ta.st, and were with hut one exception comparatively new ves- sels, it is therefore contended that the prices jtaid for su(di craft are no criteritm of the niarkt't value of vessels constructed of Donjilas fir i»y h'ss «'xperieiiced Ituildei's. The list, dassitied by years, is as f;t),"»U(l. 1 •<.S7. Aiin»(i (ahout 7<) tons), huilt in 1 SSI, was purchased in Nova Scotia forSii jjiJO. She cost r^l, •_*()!> to hrinji- her to N'ictoria, niakin;>' a total of 87.8(10. It appears, however, she had an accident in the Straits of .^Ia<^•el- lan, which unth>uhtedly aht to Vi«'toria hy .Munsie. Her cost, delivered at N'ictoria, was ahout SK^OJO, I'""' Sdjiitliirf {\'2',\ tons), huilt in 1SS4. was purchased in Nova Scotia and i»rouj:ht to Victoria, hut the cost of tlu' ves.sel Wiis not j^iveii. line 'ffiiDiiftli (97 tolls), huilt iu 1S87, was purcha.s(>d in Nova Scotia hv K. ( ". liaker and Daniel McLean for H85, Wiis sold ills l)OIl"llt I)\ EVIDENCE — VALUE OF VESSELS. 275 Silirt.dOO; tU'livort'd at Victoria in April, IhHH, sluM'ost her 1. Itoni Sif/ranf (!I3 tons), pnrchased in Nova Scotia. K, 1S8. Her cost, delivered at N'ictoria, was >S*J,(I3!).-_M» From tile tore<>-oin;.- list of sales iit \ictoria, fnr- iiislie- tables have been prepared, sluiwinj;- the price per ton for such vessels in the \'ictoria market: . I rcrof/c price paiil iiii- Imi for vtfmh solil iil I icturin. I Ail'' Mt ,. . iT.Miinip.. liiu,. of <'""1»"- iS'' m V.'iir. \**'sm,>Ih, IMKI Miirv liivlm-... IWW Vi'ni ....' Annio l'^. raiiit. 1«U (111, I lV(lr.v. «0 S 124. (W li)r» Siewenl . Tonini^i' 70 Agf III (Hal lii'i- IfllMMir ton lll>- imr- Ii\eri'd al clinMi'. X'ii'loria. fll8. 40 ,1 111.. 17 06.(17 a Aui'idout. ;il 276 EVIDENCE — VALUE OF VESSELS. Friiiu tlu' foivjioiiifr suiiiinnrv of the t'vidi'nce j)re- s«'iit«'- tiilth- is sulniiittol as sho\vin;>' tho Jivenijiv nuirkct ])r\rv |ier ton tor seahiifi- vessi-ls jit Virtoria in tlic years 18S6 ami 1SS7, as cstahUshi'd l)y actiutl sales. The talilf contains tin'cc Nova Scotian vessels, whicli an- incluthMl to avoid jniy charji*' of unfairness, al- thoujili. as ;ih-ea(ly stated, these seliooners were far superior to those sei/C«'d, both in material ani:iiiiiiii(l FavMiirili- Kjite Mar> i;il.-li ItliK-k |)iillilnliil \ililix r Ihl/rllilH' .;. .1.1.11 i.al.- Irnia I \ aniiiie San .T.isi- Harliara Ciiv i.f San Uit'gu. . Ivaiih.M- l.il.v I Ii... .I..I111 N IllL'ull- .. Ann.l Hollv All. .11 ....'. HurbiM-ii .liiliM N. Ili::all-. .. Pnthtiii.lf r Viva 'rriiiiiipli AvtniK'- tii:! 4 ii. HI II III i:> Hi vi-ars yt-ais tilil. \far-rt i.lil. Vfjirs old. aiidox.-r. |144. r>8 I!'. :i'j 11:1. «•) $;iu. 5ii Ds.ii: :io. (Ill 511. :'.-. :iii. 511 »lll.S'.> 9l.:io !M. 711 5:1. 73 IW 411 5:1. 51 !I7. X-2 85. 115 7H. 'JO 711. 1") 55. 47 ;«>. 7:1 N'lil K. -Tlir .1 niiira im ..iiiilli'il frmii lliis tal.I.-. a.i it a|i|icarM Crulu tin- i'\ iilniri' tliat nht' iiif t Willi an a.-iiil.-nl in llie SlrailH iil' Mai:t'll:in, wliirli, a.i aln-ailv hiuIimI, eilly iinr.'a.-**il llii- i-\|N-iiie!* .if lirili;:in:; *lit' v.-hsi'I ( iiloiil.l- \^nti Si'olia. Oi The second elass of evidenci'. relatiiifi' to the valui Nt'ssels, pre.sented to the Coniniissioners, jtnrtake III- ot th«' character of expert testinion\ , and is siihst; tially the only »'videuce relieil upon in the ArjiUineiit 1 liehaU of (Jreat Hritain to estal»lish the value of 01 tl U' selzeil \"essels. 'I'l le prounnence "ivtMi tins clfiss of evidence l)v (ireat Hritain demands a detaih'd ex- ICVIDENCK — VALt'E OF VESSKL8. 277 $;iu.5« 38.117 30.00 M.S5 :iii. 511 20. :u 71.05 ainiiiatidiiof tluM|U!ilitic'iitions, ('inii|H'tt'iicv, aiul civdi- bility of each witiU'ss sworn on liclialfof citluT ottlio liij-li contra I'tini'- |»arti«'s. Tlu' witnesses prodnci'il hy (Jreat Hritain will he lirst discussed in the order of importance j;iven them in the Aryinnent on heiialf of the (daimants. Walter Walker, termed in the Ariiiuneiit '"''hi])-,,,. ^^„ g. wrij^ht and itroprietor of shipyard," an' sni'vexor of tlu'i'-' '"•"'• i''"' port of Victoria. His estimates of value are l)ased i{./'isi, lim* on what it would cost fn hii'ihl vessels in N'ictoria in "*• the years ISSli and 1SS7, and do not refer to market value, as is shown hy the following' from his exami- nation : Q. Y»m can oiily tell wliat it wouM cost to Imihl a scliooiu'r R.. ixi. here in Victoria where they did not iiavc tiie siiip ehiuidlery '" material, and where they would have to pay a hijvh i>rice it they did j;et it: that is all voii jnopose to tell? A. Thai is till. Q. When y(Hi testilied as to the value of ships in l.s.sd you l>'-. i*^"'. were not very familiar with vessels that were sold in that ^"" year, were yon, or familiar with their prices? A. No. rill • . II • I 1 .. . . "■• '''■'• ''"'" I Ins witness had repaired the hiinmntc alter IS.S'J. i(i:iH;i,iiiie and was therefore familiar with her luiild and condi- ''' tion. When recpiested to jdace a value upon her repaired, he ;4..">00, and "■,•„'"'' ''"" aya in transferred in ISSG "just as she came from .sea" uvTniy, liuo 85. line lino 27S R., 185, line 18. R., 40n, line 67 ; 8y2,liuo 50. K., 836, line 53. R., !I80, line 35, K.. im, line 10. R.,l'J7,liue8. R., 1015, line 18. R., 197, Hue 5. R., li«t, line 17. R.. 199, lino 67. EVIDKNCE — VALUE OP VESSELS. for S3,(KK). QuostioiKMl as to tlie schooner Kister and was trans- ferred in 1S8(! for 81,8(10. The (|uestion was raised on his redirect examination whether he was well ae- (|Uainted or not with these ve.ssels; but it appears that he was licttrr a<'(|uainted with them than with the Thornton, of which his valuati(»n is relied upon in the Arjiument on behidf of (ireat liritain. He based his valuation of the (iracc, Dolpliiii, and IT. P.S.Saifinirtf on what they iroKhl co.-it to hnild, and on the fact that thev would not have depreciated in five or six years after l)ein»;' launched. Orlaiuht Warner is cited in the Arfiumeiit on behalf of (Jreat Britain as to the value of six vesst'ls, tiie ('(irolnia, Tlionitoii, (huronl, Aiiiin llcck, dnici', and Ihl/iliiit. lie also was a joitnici/iiKui ship idtjiniter and was for four years interested in a shipyard in \ ictoria; as he was so intert'sted in 1S!I1, he was l»ut i\ jouinrjiHHiii in 18S(; and 1SS7. Mis exi)erieiice in buildiii or $4,(K)0, are you thinking of what it would cost to Imilil liert A. That is my idea; ye.s, sir. Q. To build her new ? A. Yes, sir. Q. And yoH base your estimate on thutt A. Yes. A» a witness upon the question of the value of the KVIDKNCK — VALfK OK VK88EL8. 27i> arari'. Dolphin, Anna Ihrk, jind W. P. Saifinin/, lie tewtitii'd: Q. Your estimate, of course, as usual, is based upon your K., 1016, line estiuiate of costt 4U. A. Yes. Q. Entirely? A. Kntirely. It is coiitciulcd tiiiit the tcstiiiiony of tliis witness OJiii possess n(» \\ei;;Iit in (leteniiiiiin«>' tlie viiiue of the vessels seized. (leorjie W. Cnvin, cited in tlu> Arjiunient ..n heludf of (Jreat Hritiiin iis to the viiliie of the Tli\\vi\ his tnide about halftiie time. '*•• ."'-^' ''"« His experience in 1S,S6 appears hv the fAlhiwin;-- te.s- ^*^' tinionv : Q. Did you own auv vessels in ISSd? A. No. Q. Huy any part of one f A. No. Q. l)o you know of any sales in those years? A. No; I had nothing to do winitever "witli any sales. It is needle.ss to criticise the value of this witne.s.s's K., lOL'i), lin.) testimony, further than to (pi,>te his actual lanyu n reoard to the Ditliihin, in connection with tl" ili'e le e\i- denceof .1. I). Warren, the a<>ent for the owner, that in 1881 the (iidvr (which was larj-er than the Ihiljilii,,) cost him to Iniild, withcnmi U., ll.r.. line les compU'te. Sl(;,oo() Q. l>o 1 understand that you put a valueof .*H,(K)Oon the 'J'*^'' ''"" ull and spars of ■ - A. Yes. (i. And outsic the Dolphin nia. A large engine, like the Dulphiii'H, would be worth at least $4,(100 or $5,000, would it not! A. I don't know; that ain't a part of my business; I ani not an engineer or machinist. ii. But that would cost at least $4,000 or $5,(M)0, yon think? A. It is pretty hard telling in XMctoria about how much she would cost at that time. (^ Give us your idea. Yon said ^.^OCK) or $4,000? A. They might have cost that and might have cost a great deal more. . They would at least cost that? A. Yes, thev would at least cost that. Q. So that would make the Dolpliin worth about $22,000 or $2;{.000, with her machinery in? A. Yes; 1 don't *' '"ik she would cost much less than that at that time. Br. Arc-, line :>r>. !»7 K., ItitJ, 4(i. K., 83G, R., ^S, K., «35, li7. R.. 831, 04. R., 1713. 35. line lliihcrt .1. Ctiok, citi'tl in tlu- Arf^iiiiu'iit on bclialt' <»t' the cliiimiiiit.s as to the vahu- of tlie Tlidnifoii, (hnranl, ixnil A iiii(( Ilccl,; t\s "a sliipwriolit iiml i)roi)ri- I'tor of slii|»\ arils for niaiiv years at \ ictoria" and "an ex|terieii('e(l hniMer,' was ])ro|)rietor of a sliipvanl line [trior to iScS;}, ill wliicli year Turpel reiitetl it, and who at the lime ' the si.vteen years he chiiins to line * have heeii eiiji'a^ed in huihlin^' he never constnicted anv sealinji' schooners, but he caU'iihites the vahie of lineji vessel ill lcSS6 on the Inisis of what it would ro.sY (o liiiilil one at that time. The <-a|taeity (»f tlie siiipyard inanaji'ed hy Cook line is shown by his statement, that in 1H7S it took him elrri'ii iiioiifhs to partially rebuild the Tlionifon, while Matthew Turner testified that in his yiU'd at Sau Francisco a KHI-toii vessel usually took sixty (hiys to l)uild "n-ady for .sea," but coidd be completed at increased expense in thii'ty days. Cook was (^ues- Hne EVIDENCE — VALUE OF VESSELS. 281 K'., nXi. line II. ti(»iu'(l }ts to inarki't vnliic ii. ISNC, anil testitii'd as follows: Q. How do y«m know wbat it would cost in 1886? A. JJeeansi' I knew what the ])ii(os were. if. How do you know anything about tlie market value of boats in 18S(i >. A, So tar as that goes there was uo real market value. Q. IJut boats were transferred from one jierson to another at that time .' A. Yes; we used to buy some ves.sels from San Francisco, and some came out from the Kast. As nine sales in Victoria duriiiji' ISSC were tostilitMl to iK't'ore tlu- IIi<;li ( 'oiuniissioii, as already shown, the iiU'onii)etency ot' this witness is apparent lie slated "•.'.***'' '"'•' in his examination that the 'flionitoii in 1877 was worth >i'),l*0(>. Hein<>' (piestioned as to the extent of the repairs he made npon the vessel in that \ ear, he replied: She was worth more when 1 was done with her than sheR-. '^^^l. I'uc was when she was built first. -"'• Q. Well, then, your bill would represent the complete value of the .ship? A. It would at that time. He was fnrther asked: (). Mr. Cook, did you estimate the cost of repairing theR.,!i:r>. linoit. ThoiHtitit in the year 1S77 at s?;},."*!!*! .' A. Yes, sir. It is nnnece.s.sarv to fnrther review the evidence of this witness or to discu.ss his competency as an expert. Kichard Mennett, cited in the Ar<>ninent on hehalf of (Jreat Britain as to the valne of the Anna link, (inirc, And Do/jtliiii, was a joiinici/iit'H' xli'li rdijxiiftr, l>'-- I'WS, line who state' appears in his examination: Q. I )id you have anything to do with the sale of schooners? ^ ^^y^ li,,^ A. No. 'i7. ■ ' ^i H S- -3(5 w 282 EVIDENCE — VALUE OF VKSSF.LS. (}, From actual sales, do you know anything about the value of the deet of sealinji' schooners heref A. I would have to take account of the vessels and look over them. (^>. Being a shipbuilder, do you, in estimating values, largely give vour own idea of tlie cost of tiiera? A. I do, i). You are (|uite positive that the cost was (theaper in 1881 than in 1880 1 A. 1 am. <^>. The i'o.'»t of building was very liigli in 188(1! A. It was. . And tiie value of the vessels correspondingly increased f A, It did. i). Do you know anything about the difVerence in the values of vessels between 1881 and 188(i? A. Xo, 1 «lid not give it a thought. Till' kn(»\vltMl;;v aii'l cxpfriciu'i' of this witness arc onrirt'ly iiisiitHcicnt to jiivc his opinion as an cxpiTt tlic shiliii> riirjiriifcr, who hiiilt on contract the hull ™- ot" iiiir siiiHiifi rcssi'l, I he Miiiiiir, in 18SII. He stated R., i8!t, linithat he knew ot' no sales ot" schooners in 1884, iSS"), *3- ISSC. or iSS'i'. His i;^norance ot" values and his in- competency as an expert are shown by extracts from his examination: K., 18!>, line (J. I low do you know what the CVoo/cHrt would have sold for ? A. 1 do not know what slie would have sold for. (). How do you know how nuich she was worth? A. I gave my opinion of her value. t). How could you form au opinion of her value when you don't know what the market price was? A. 1 could fell by what I heard of vessels; it was only hearsay, of course. (f. You can state what she cost to build '. A, Yes. i). Tliat is, vour own oi)inion? A. Yes. (). Yon do not know of a single sale of a vessel in these years i 5H. KVIDKNCi: — VAMK OK VESSELS. 2S3 V. No; tliert' inifflit liave hiHMi siilf s. but I don't k tiling about tliciii He stated tliat he ki ii'W what It wo iiKl li now anv- il \e CdSt to build tlio ('(irnlriKi in lSS(i. l,ut ii|miii ln-iiin- aski'd what such cost would have liccii, he rcplit'd that he would have to have the specilications, and fliaf lir (fidii-.m, line not hittnr the Innitli, lirrailtli, a ml dififli of Imld of fit Carol, u. (■ltd. In his exauiination as to the value of the OiiirnnKii- ><•"">, li which he had never worked on, hut had perrejiistered "V ton lo hiiilil II iiiir rrs.sri of tliiit iliis.s in 18S(): and on this liasis he valued the Omninl at from >^4.32"i to >*5,00(». His testimony disci ranee of this witness. 8."i!t, line K.. X5S. line OSes till th incom|ieteiK'v and i' vessels u|ion whit h I le \voi ked 111 liU. line that capacity: hut his exiierieiice. in which he noted the cost of huildiii-_>. When (iue.-h to bring' his figures as high as the other witnesses sworn. He based his vain- K., loio, line ation of the Ciiiri' and Dolphin on what it would lost to liiiilil Hum in 188fi. Vi. It is contended that this witness has not 1 leeii siiowii ([ualified to give testimonv as an expert for the vea 18K(i and 1SS7. rs John J. Hobinson, cited in the Argument on behalf i''- ^-'^^ M I la,' 284 EVIDENCK — VAI.IE OK VESSELS. H., i:.ti H., 155. K., l.-)tl. lit" (iiviit Mritiiin jts to the vnliic nt" tlic ('inolciiii, \\i\s a joitiiiijiiiKiH sliii) riujxiitri; »'ini»l()yt'«l at tlii* yiinl of Andrew Laiiijf, oiR' of tlic clMiiiiants l)efort' tlic Coiii- inissioii. Tilt' witness stated tliat lie never l)iiilt a sealin- vessel exceptin;;- the Cmoli nil i\t the time when she was len;;thened, in 1SS4. '{'he vahie of the testimony jiiven by this witness is lu'st shown l»y extracts from his examination. i). Ill tin.' coiir.se of your business here have you acquired 11 iiiH)\vle(lne of the value of vessels? A. No. I could not .say that I have; I have jieneral ideas all round. (}. Have you any opinion as to the value of the CaroUtui at that time ;' A. I should think she was worth between $4,(MI0 and !«5.(» up, builder's measureinent. • •*•••• A. I have never built any schooners. That is my idea. (i. After you hud completed your work on the Catofvna, at what did you value her per ton t A. Oh, I su])po.se about ^U\'t. (}. 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 a]>art for nothing. (). Then that ves,sel 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 w(Uth more after you have tinished. It takes more labor in i)roportion to do that work. <^. Is she worth more than a new ves.sel of that length? A. I don't say she would be worth more to her owner. (i>. Was she worth more on the market? A. I understood she was worth about 85,0(M). The witness is, from his own evidence, clearly iiu'oniiu'tent to <>ive testimony as to the valne of any sealiiifj vessel. EVIllENCE — VALUE OK VK88EL8. 2H5 IK'iirv F. Sicwcnl, citcil in tlii' liritisli Ar- captain wlio had notliinj^ to do witli tilt* s«'alinji' hiisint'ss prior to S«'j»ti'nilH'r, 18S7. His only ex|H'n«'ii<'(* as to the value of vessels is in connet'tion with the purehase of three sehooners in Nova Scotia, the first one of which he hroiiyht to N'ictoria in ISSS. The followin<>' from his testimony apiM'ars in the Argument on behalf of (treat Britain; •»>•• Afr,, p. ' ' !Hi, line :i.«. A. I am not acquainted with the ('nroUnu. (}. I>nt t'roni yonr knowk'dgo of vessels, take a vessel in 1S,S7. suitable for sealing, and of th«' tonnage of .'52 tons or tliereabonts, would you consider 84,000 a liigh or low vain- ati(Mi f A. I should consider that a very reasonable valuation, consideriiifr the experience 1 had afterwards in buying ves- sels. I will say that in 1.S91 I paid 83,200 for a vessel about thirty years old. To which should l>e added: <^ What tonnage was she} H.. n>o. A. Forty. The ('((rolf'iiK was Imilt the same vear as the vesselApj). H,p. l'!i. he mentions, and was 27..'5(l tons, according:' to the survey made of the vessel in 1S.S4. His ij>noraiice of tlu' ('Kro/nta and of market value in ISSIJ divests lii.s opinion of the sli;ihtest wei;;Iit. His inexperience in purchasiuji' vessels and his iji'norance of the Ail((, for which he made an offer in 1SS7, show that his valuation of her is mere specula- tion. John Sabiston, cited in the Arjfument on l)ehalf ofn.^ 208, liue (treat Hritain as to the value of the Curnlrtiii, was a u.^^jn ii„e Nanimo pilot who lU'ver built a sealinji' vessel, but i- had had "boats" built in 1.S7-2 an.l 1S9.'{. On the\-"'"'^ cost of buihlinj; in 187"i and 1893 he l)ases his opin- ion of what it would cost to tin'ild a vessel like then.. 211, line ('(iiolnid ill 1SS4, and he fixes it at >i.j,()()(>. That lie is utterly incompetent to place a value upon any vessel in the vears when the seizures were made, or 10. 1 •_>8(; EVlDENl'K — VALUK oF VESSKL8. I at liny time from IHHO to 1H!I(), is evicK-iit from liis tt'stimoiiy. Williiim S|fi<>litliolm(', cited iis to tin* viiliu' of tl>" Jliiitiifiiii, \\!\s ii jdimici/iiKiii sliif) tnrpihtrr who liat. K.jifli, iin«'l)i.,.|| cmployiMl oil tlif vessel in miikiiifi' the usiinl iiiiiiiiiil reitiiirs. II«' lintl never been ii coiitrjietor or I(..jm;:.. liiii'iiijister shipwright, imil hiid never boiifiht or soM ii liiir vessel, llis knowhMlii'e of the cost of miiteriiil for K.. 91): .•ii. slnn hui hhi lii' \v as coniiiied to the purchase of iikis/m u.. iKi.-,, liii.. (',„. ,„,,. vessel. His valuation of the (hnrtinl was i;.. !«ii, liiii" l)ase." liiii" 27 u.. «ii. li'"'ain. was called in tlu' ca.ses of the CiirolciHi, Tlionitiiii, ' I><4,(MM). On cross-examination Turpel was asked: ''From i/oiir jhisidkiI ktioirlrtftfc of the ('((folciKi (ur 1)011 coiii/ii'fnif in i/oitr own mind to /iliicr o niliir iijioii liii-r to which he replied KVIDENCr, — VALUK Oh' VESSELS. 287 liwx, lino 'I'lic witiU'ss iilso stiitt'il tliat tlic cost nt' l»iiil(liii;i' a"- "'"• vfssi'l ill IHSd mill 1SS7 wnst'i i ^!7') to >;-_*00 a ton. On the saino ratio tin- cost of Idiildiii;;- a vessel in San Krancisfo, (leeen tVoiii >*1 ")() to >>ll'> perton. An "v,^' exainination of the evidence of .Matthew Turner, the San Francisco shiplmilder (which is later reviewed), disclo.ses that such a tijfunj would have het-ii lar. Do you kuow anything about what the cost of tlic Ailn it.. i:thing about the sale of vessels. 288 KVIDENCE VALUK OK VESSELS. ii K., L'lt!, 6(1. !(., 21(i. .".2;L'17 •1. II.. -'1" •-'4. a.. L'i7, ri(i. It is ck'iir t'nuii liis I'vidciico tluit liis valuiitioii v ns l)iist'(l entirely iiitoii wliat it would ro.st to hn'ilil ji ves- sel ill 1887. iiiitl as his experience in sliip l»nil(lin- schoon- ers of (;!» tons each for S8,7r)(> and ahout ^!l,(»(»0, respectively, i lis evidence is pro(luced for the pur- pose of showiuii' that the in.st of Jtiiihl'iiiti rc.s.srl.s had decreased at \'ict(tria from 1S8(; to 1S!I2. Althouj;h the cost of l)uildinj;' at X'ictoria in 1S8(! has little In-ariui;' upon the (pu'stion of market value, and the cost in 18!)'i is still more innnaterial, the witness estaldishes his own incompt'tenc\- 1»\- his testimonv: line {). Well, thine was no buildiiif: ln're in 1SS(> of scalitig shii>s. was tlii'ie? A. No. sir. Q. Xor in ISSo.' A. No. sir. ^i. Nor in 1SS4;' A. 1 don't tliink so. ii. Nor in ls,S7 l \. Not tliat ! know of. liiu' ^i- Von can not tell anytliinj; ahoiU the cost of a ship in 1884, l.ssr>. lSS(i. and 1.SS7 .' A. Oh. I had nothing to do with t'.' in at that time. It'edirect examination : ii. In the answer whieh you have given to the last <|ues tion, have you in mind sealing: vessels or vessels of all sorts? A. I merely answered the qnestion that I had nothing; to do with sealing vessels at that time, I was repairing. The only value (d the testimonv of this witness, is to show thai (i, lini> S."i7, liiu- S.">7. line \'.>. Siiinui'l Sea, in tlu- Ar<>iiuu'iit on licluilf of Groat"'- ■^''ff'ioo, IWtain, termed "a slii]»l)nil(ler of lar<>e and k»ii<>' exjH'vience, and familiar with the Oiiininl," was a slii/i niriinifcr, who l)nilt two sdiooners, "sncli as are' used for sealin<>-," in ASYAV diid lsf;s, and who hist built a vessel /// 1S7;J. He was sworn on behalf of (Jreat ",•.,< '^^"' ''"" Ikitain as to the value of tlie Oinnnd in ISSG. on which he did s(tme repair work in 1S7S and 18S(t. '* The knowled<>'e he possessed of the Oiuranl outside of the (|Uesti(»n of his jieneral ex|ierien('e is shown by the foUowinji- testimonv: Q. Have yoii seen tlio 0)iirniil since you worked on lierM' A. Yes, I have seen lier wlioii she used to <'oiiu' into biirbor. (.). Have you been upon liorf A. Yes. Q. Have you seen her since 1880? A. I can not say I have seen her since 188('»; I nii}>:ht. (i. Are you positive you saw lier between 18S0 and 188flf A. I think 1 have. Q. Well, are you positive? A. I can not exactly swear, but I ani almost sure. i). Are you about as sure that you saw her since 1880 If A. Yes. His ineomi»etency is apparent. James (Jaudin, sworn in relation to the condition and value of the Ail- craft, his statement as to the superiority of the vessel possesses no weijilit as evidence H e IS clearly incoMipetent to jiive any testinuinv as to value. m f'ii ■ fe: n s- •M f ,1 X'. ■■:[■' T 290 KVIDKNCK — VALl'K OF VKSSELS. .loliii Irviiiji', a witness, who luid hci'i) eiiuitttul creijiliilitv of the three lirst mentioned (as disclosed by portions of their testimony), ;iive a fair, unliiased opinitrn of the value of the vessels, as to which tli v were examined, is not proi»i\l»le. In the repoit of the ctimmittee appointed h. t!a board of trade, which was so relied upv«n by (ii'i.t Uritain in the (Jeneva Arbitration, the foUowin;.; observations appear, and are (pioted in the cui'.Mtei case of ( Jreat Britain: fioiiova Aii>i- It will 1)6 lit (HUH' ailiiiittetl l».v tluise wiio are at all fainiliiir tratioii . witli the practii't' of the courts in maritime ciises tliat it is ';? " ',' ' ' ', imp""*''''*''' ^"' place miicli icliaiico on tlie opinion or evidence ulcut itrit-'*^ sliipowncrs or mercliantfl as to tlie value of (troiierty, oln,i). i;ii. which 1 1 icy are seekinji to recover. Shipowners are in the '11 KVIDKXCE VAUUK OK VKSSKL8. 21)1 habit of founding tlioir estimate not niariu't price of tlie ve.ssel at tlie time of her loss, but the original cost price, anil often tat amounts which they have expended at dilL., out any propter deduction for the wear and te; wliich has been sustained. T] on what would lie tiie on lie into account the erent times witli- ir and damage ifS('_ (thscrviitidiis apjtly with ('(piiil t'orec to the <»l>iiiioiis ami t'vi(K>n((. of these three clniiiiaiits ami tl the vjihie (tf the vessels seized. le ajieiit, \yMrreii, who are relied ui»oii in esti inatiiiii' It is also to he noted that William .Mm isie IS not called as a witness on value in the ease of aiiv vessel.. but his own: that Charles Spriiii.' stated that the Oit-^' -^ ^i"'. lilK IVdl (I was valued in the sale of the i UMii propertv of W. Sprin;.- it ("o. at n-_),-_>(MI j,nd the hatr at >^-J,S(lO. ainl that the latter vessid Wi-s sold in ISSC, at the time i; of the dissolution of the partnership of (". Spriny- ct Co., for S1,.S00, while he elaimed ' former was in the same vear >^4.()()( eve KfJ, lino !«• value o .f th tl », modifvinii', liow- r, Ins vahiation l)y sayin<;-, "considering' that she .->! i;., 8li.i, line was w oi tl 1 every l)it of that tomcat that special t and that James 1). Warren testified that the li line ve ves- 1111 were oltcrcc sels for whi(di his principal makes cla for sale at pnhlic auction in the fall of iSS'i and would not hriiij.- the face id' the mortiiji^'es, wlii-li are mmdi less than the amounts claimed as the value (dtl i;., 1IIS7, line se; ItV in Hi W vinji' reviewed the (pialiticatioiis aiurtestiiuonv en. who had cliarj>(' of the ( 'ooper le ves- ' liiiis. of the witnesses sworn on Itehalf of the claimants, as experts.'it is jtroposed to discuss those who were swin-ii l)y the United States. Alexander .McJA'an, a Nova Scotian hv hirtli audi;., i-'n, liiio trom hoyhood euiiaii'ed in seafaring"' on the Atlantic coast, came to N'ictoria in the year 1S,S0, and was for two years .sailiii"-' from that port in dilferent vessel durine(l in tra(Un' his connection with that firm until its di.ssolution in hecember, 1886. He testified that it had been a part of his business to keep jxisted a.s to the sales and transfers of sealing- vessels on the Pacific ('oast, and showed his familiarity with the market at Victoria bv testifviu"- as to the niim- ber of sales which occurred in 188(1 to his personal knowledge, and which have already been reviewed. His familiarity with the sealing- vessels which were at the ports of \ ictoria and San Francisco in the years 188;'), 1880, and 1887, is shown by an examination of his testimony, in which he gave the tonnage of the vessels and the years in which thev were engaged in sealing. Besides his experience in Victcu-ia, Captain ^Mclican was employed i)y prospective purchasers to inspect vessels which were offered for sale at San Francisco. The witness Bragg stated that ('apt. Alexander ^IcLean and liis brotiier were the two most experi- enced men in the sealing business at \'ictoria in 1886, and F. ('. Baker, a claimant before the Com- mission, said that Daniel McFean ''and Alexander McLean at Ihat time (188!)) and previously were con- sidered the men best posted in that l)usiness." Every effort was made on the part of the claimants to shake Captain McLean's te ^iuony by rigid cross-examina- tion, and to destroy its i ifect by rel)utting evidence, but in no .single in.stance do we find, in an examina- tion of tlie entire Record, that the attempts were suc- cessful; in fact, in many instances where witnesses were sworn for tiie ])urpose of «'ontradicting him, = ill EVIUENCK VAMIE OK VESSELS. (•ntss-exiniiiuiition hroujilit out a full corrohoration of the testimony wliicli lie •■•avc. It is to be noted that i." Captain McLean was jmrt owner of the Oiuranl i\nd FaroKiifc, two vessels for which claims are made liefore the High Commission. It is asserted hv the United States that this witness is shown by hi.s evidence, and h\ the evideiuxi of every witness wl 293 m\ line :iO. own lO was sworn for the purpose of rebuttin- from Pacific jiorts in the year 1S71, and who became master of a vessel in tlu^'year iSTf) and i>f a seuline of tl the Adir I. Ahfcr at Seattle, purchasinji- the material md superintendin'.. i247, line 33. 1{., 194, line as aj^ain seized on the A/lie I. Alf/rr in 1887 and taken to the same })orts. His testimony as to the value of the vessels seized in both tl 14. lese years is o peculiar importance in that he examined them aftrr leir seizure, aiK 1 C(»uld testify ])articularly as M their condition. That Ijis valuation of these vessels is based entirely on experience in American markets does not deprive it of the weight to which it is enti- tled, as it is merely a (juestion of addition of the If: -I 294 KVIDENCK — VALL'E OF VESSELS. !i' i K., 4(1^, line ti:!. ]{., tlHl, liiK U., 17(1, lilK 18. K.. I(l!l, liiii 1{., 47!t. liiii 4(1. !{., 4(;3. K., KiH, Hill- 5(1. K.. 17(1. 27. K.. 477, (i.j. liiH III). R., .-);!0, lilK' n., .-.!'!•, m. H., ->'2'J, 08. line line !{., .-.L'9, line iVJ. eiistoiii (lutifs iiiid cost of tlcliverv in order to roicli ii projxT viiliiiitioii ill the port of \ ictoria. A. |{. Alexiiiuler, who siiu-e lcS,ss had l)eeii eiii- jdoytMl l»y tlie I'liited States Fisli Coiiiiiiissioii on the Pacific ( 'oast, and previous to w liich time liad resided at ( Jloiicester, Mass., since the year 1S64, was swoiii on lu'lialf of the I'liited States in relation to the vahie of the ('(iidlciiii, wliich lie had seen on the beach at Unahiska in the siiniiner of 1S8S. Mr. Al •caiKh.T (hiring his resicU-nce at (ihmcester had l)een engae called upon to jiive information u]ioii tliis suhject to the Fish Commission. lie examine(l the vesscd as t(» which he testified witii care, and detailed her con.struclion and condition at that time. From iiis experience, which was t'ully Itroujiht out in his cross-examination, it is plain that tiie witness was com|ietent to j;ive testimony as to the value of the ('((rolcnii. F. 1'. .Miner was sworn as a witness on Itehalf of the I'nited States as to the value of the ('(UoliHd. lie had heeii enjia>;'ed since ISTa upon tishinji' and liiintinji' vc'ssel.s, and had saile(l from the ports of San Francisco, Yokohama, \ ictoria, and Seattle. IiilS.S,') he Itecame mj;rver of the Mritish s«diooner I'^iclojic, and sine" that time up to ISO.") had heeii a master of KVIDENCK — VALUK OK \ KSSKLS. 21J5 sciiliii"' vessels, lie stilted that lie knew every vessels. •">:!", li tliiit wiis en<>iijie(l in seiilin<>- in lSS(i and ISST, and that two-thirds of them were ori;iiiiallv l)uilt in .San Frai H'lSCO. That he was familiar with the market at V.V2. lino San Franeisco is shown l)y his testininnv, and that inU.. 53o, lino iiiviiiToniids he ^, -.^^ 1;,,^, l)ased his statements. His testimoiiv in regard to the 40. Citroli-iHi rested upon an examination which he made of her in 1 SSi) at I'liidaska. lie descrilied her model, material, and construction, and explained tiilly how she diifered from marketable vessels in 1S8(!. It appe;irs from the foreiioin' witnesses are a sealinj;- captain, who had no ex- perience ill the Imsiness prior to .September, iSST: an inspector of hulls of steam vessels at \'ictoria, the a;.;('nt of the larji'est claimant; three of the claimants liefore the Commission; and an alle<;ed claimant. These seven testified as to the value of vessels in tl lose years. T le reniaininj;- witness is a ship- builder (William Turjiel), ami the most experienced I' !»i; ■' I^[i il '1^ ^ 1 If- j' Ii; 296 EVIDENCE — VALUE OF VESSELS. of tilt' witnesses sworn on behalf of Great liritain, bnt he fails to place a value f>n any vessel from his own knowledjie. The witnesses sworn t»n hehalf of the United States are tonr, thi'ee of them the m(»st exjjerienced sealinj^ captains on the Pacific Coast, who fnan their com- prehensive knowled<>'c of the sealin<»' business were fully competent t«» fix a value upon the schooners seized. The fourth witness was an euipl(»yee t>f the United States Fish Commission, who had been familiar with the class of vessels used in sealinj>' from bov- hood, anil with those on the Pacific for the jjast ten years. All of these witnesses j^ive testimony as to the iiKirlii't raliic of the seized vessels. The third class of evidence submitted to the Coiii- mi.ssioners, but which can only be relied upon in case it is deemed a market price has not been proved, is the cost of constructinji' vessels of a similar class. It is apparent, from a review of the summarized evi- dence of witnesses sworn on behalf of the claimants as experts, that from the year 18.S3 to 18S1), inclusive, there were no vessels l)uilt at Victitria. The oid\- evidence which was submitted under this head on tlie jiart of the claimants, exceptinj^- in the cases of seized vessels, related to the years 18!)(> and iN'.d, when it a]»pears that increased facilities for the transportatiitn of the nece.ssarv materials from the East had made it possible to build vessels at Victoria in competition with the hnjie sliipyards of San Francisco. The vessels built at Victoria 'in ls;»() and 1S!»1, of which evidence was . E., 167. Mitij Jlcllr (o? tons) was built by William 'I'urpel for 8(;,r»0(>. R., 168 Satlh' TiirprI (5(> tons) was built l)v the same man for 810,500. If ':■ EVIDKNCE — VALUE OK VEt'-, i"'!". Hiewerd, at a eost of over sH.uoo, McI)onald and Clark were the eontraetors. ( 'lark, who was a witness i.'., \'>'.k before the Connni.ssion on liehalf of (ireat Hritain, stated that the ])riee which thev received for the con-l.'.. -'kj, lino struction was S8,7')(). '"'• J'Jiitniirise ((i|» tons) was Ituilt l)v Clark at a cost'*'- -"'. i"'o of>i9,000. Besides the.se vessels there is no testimony produce and 1HS7 was Mattlu'W 'I'nrncr. lie came to San Fran- cisco in !><;')(>, and, liaviiio' pnrcliascd a .M-liooncr in iSJjii, coinnieiiccd a coastin() tonslairden. His shipyard is the best known on the l'aciti«" ("oast, and exceptinj^' one at I'ort Hlakeley, in the State of AVashinjitoii, the largest. His kii(»wlede summarize( IS structed follows: J-:jii))is9,(l(K». ""'■ L(irin(i (08 tons), buiU in 1880 for ^7,232. line '\^\^^, witness explained that in the case of the Thnnia Hue she was lini.shed as a yacht, witli awning, etc., at an extra cost of 81,000; and he also explained that the line line line line KVIDKNCE VALUK OF VKS8F.r,S. •Jll!l Luvhid Iiiiil extni f'liniisliiiijis, wliirli iiicrt'ilscil licr cost Ih'VoikI the iisiifil \)v\vy per ton tor m vcssf^l. It .slionld mIso !)(' noted in tliis connt'ctioii tlint Oiiptnin i<., kw, nno McljCiin, whose experienee liiis jilreiuK' been (lis- '-'*• iMissi'd, fixed the nvenijic price per ton For n new soalinji' vessel, "ready tor sea" in the port of San Francisco, at SI 00. In connection with the cost of Ituildin;^' sealln;; '>'•,"«"', Hue vessels, and in order to make such evidence iuat(frial in deterniininji' market value, it is necessarv to con- sider the ai\niial depnu-iation or "wear and tear" of vess(ds, which also becomes important in determiniuj'" the value of vessels which liainal cost. Ill the examination of Captain Siewerd, a witness sworn on behalf of Groat Britain, the following.;' a|)poars: The Conuiiissioneron the uiwt of the Unitel. A. It is the custom to allow tliat on tsie .iverage every year as we go along. The t'oUowiu}.;' appears in the examination of J. D. ml m lift 300 EVIDENCE — VALUE OF VESSELS. 1{., !I15, 67. V>2. R., IG',15, 20. K., Ui'.yj, 25. li., um, 4. WaiTon, iiffciit of the piiucipal cliiiiiiinit lu't'iirc the Iliji'li ('oniiiiis.siom'rs: Hy tile <'oiiimis.si(»iH'r on tlio piirt of tlic I'liiti'd Stiiti's: liuf ^i' ^N liiit would it ettst to rctit tliis Thornton f I do not iiit'iiii tlu' oiitlit; liut you say yon tliorouffldy relit every luituniii; liiiw niucli did it cost each year to relit — take the Tlioriitoii, for instance.' A. Well, she would cost, oh. I should say i). 1 uin spcakinj; sinijily of the ve.s.sel herself, to nnike ;;()od her wear and tear .' A, 1 think she would take fully •'!'1,(MM( a year, one year with another; one year she nught not take so nnudi atul another a t;ood deal more. ^). lio von mean the wear and tear woidd be as much as that? A. The runnin;; {fear is a jj; per cent per annum, and tliat a v«'ssel wlio.se hull IukI heen injm'e' for steam woidd lepreciate more than the ammal rate cd' 10 j)er cent. '""* ilis explanations us to how a vessel woidd l»e injured liii(l)y leiio'theninji', and how afiected l)y puttinji' in steam, are full ami explicit. It is asserted hy the United Stiites that in any consideration (d" the cost (d" huild- ino- Vessels, which may Ite deemed necessary for the purpr.se of determininji' market value, the (picstion of (h'pre 'iation must also he taken into acc(Uint, and that ^.uch vessels aiiiono' those seizeil as liad heen EVIDENCK — VALUK OF VESSELS. 801 k'iii' tiie evidenee sultmitted in relation to the Vidues of the vessels seized tor which ehiims are ma' this period of the co.st of buildiny does not come from r I I 302 EVIDENCr, VALUE OK VESSELS. otliiT t'xjH'rioiu'c tlinu inakiiiii- repiiirs, aiv iiic(iiiij)e- tt'iit to jiivc fX|K'rt testiitiony as to the value of tlio scaliiii;' vessels in (jiiestioii. Seventh. That witnesses who in ,J8S(i and 1SS7 wiTc familiar with the market of San Francisco and the rulinji' prices there, and witnesses who had knowl- edji'e of sah's and transfers of sealinL;- vessels at Vic- toria, are com|n'tent to u'ive ex|»ert testinKtny as to the value of the vessels in (pU'stion. I'lijihth. That the sah's of sealing schooners at the ports of Victoria and San Francisco dnrinii- the \'ears 1S8(! and 18S7 an- i)ro]»er data for the computation of the market value of vessels in those vears. Ninth. That the remoteness of Nova Scotia, the su]ieriority of the vessels then* produced in material and construction to the schooners built on the Pacific Coast, and the small nuud)er procured from there in 188*1 and 1SS7, make the prices paid for Nova Scotian vessels deliver«'d at \'ictoria of hut little value in estahlishinu' the market price of schooners a: the latter port. Tenth. That the sales of vessels at the port of San Francisco form a proper Itasis tor the computation of the market value of sealinji' vi'.ssels at \'ictoria in the yt-ars 18S(! and 1SS7: and in the absence of proof of an actual market value, the cost of l)uildin<:' in the former port. Fleventh. That the nuud)er of vessels, sales, and transfers at the port of San Franci.sco in 18M(! and 1.S77 is evidence of the suppl\- which existeil tor uieetiu;^' the tli'iuands of the N'ictoria market. It is ])roposed at this point in the Ar'-. 5:n, linf old stylt — that is, in model." ' '^• .lames 1). \\'an'en spoke of her as a ".small-sized" "•■ --"■'. lim' vessel of sliai-]» huild, l)ut added that he did not '^' examine her after she was re])nilt. Of the witiu's.ses sworn on helialf of Great Ih-itain as to the \alue of the ('(irohiid, nix Ikisc tlirir ojiiiiioit iij)(ii/ irlnif if iroiild cost to hiiild .i"'<,li'i<'4- Alexander Watsoi ahout 84, ()()() ; and is .so < i hehalf of (ireat Hritain. The last witness, on 1 of the size of the Carolr '-;3,37r). ,00 1, |ouriieyman siiip carpenter, i>'.. iss, ih, ted in the Arjiument on )(!■;■ corrected as to his idea"" '!•". i""' cliaii<;i'(l Ins va luati on to K., l!Ki. lini' Orlando AVarner, s;j,8()(l or S4,00(». (turnevman shii) carni'iiter, 'J., lit-, i 1 I ' IW W. H' * il i 304 F.VIUENCE VALL'K OF VES.>^r»,0()0. i{..i!t4, liue >^ McC. Siiiitli, iiiiister sliipwrinlit, who never saw the vessel. InKit/iiicil slie was worth about >^3,(100 nr liesides the t'orejji'oiiiy witnesses, William 'rur])el, proprietor of a shipyard iit ^'i(•toria, placed a value R. H!!). of alxiut >>4, 0(1(1 upon the ('(iihIciki, "if she was as ^•ond as they say slie was." '^■J2'""'' ''"" .liiMies 1). Warrt-n, agent of the principal claimant itet'ore the ( 'onnuission, stated thiit hi- would consider the vessel worth ><4,<3,S0(> or >^4.();3,sn(), but that he would "not be i»ositive." Acciirdini:- to the considerations expressed in the various Itills of sale to and morti;'aj:es t'rom Munsie, the value of the ('arnliiid at that time was >;2, '•()(). ''••J"-*'""M'atrick Hickey. who was half owner of the vessel when she was sold in 18''^.''», stated that he received >>1,(M)() as his share of the i)urchase price, and that Captain I'npihart, wh(» made the sale, toM him that he had s(.ld the vessel for ^2,000. li., 209, liue As corruboratiiiu of the last valuation, it appears that the len^itlieninji' of the vessel renewed al)out two-thinls of her hull, and that such repairs cost >^I)()i), At the same rate, although repair work was more expensive than tlu' coustruclion of u new vessel, the entire hull of the ('firnhiKi could have l)eeu replaceil new for vSl,2(H>. t )rlaiido Warner, who liuilt the hull of the Cluir- liittr Cur, I'stiiuated that the cost of the outfit would w„ wai, line ij^. ,„n..third of the cost of the hull; and the same K.,!<7. l(.,ll!l. n.. I'CMi, lin :u. m 1 EVIDENCE — VALUE OF VESSELS. 305 ratio is friven by the witness Cavin ii» tlie case of the Dolphin. H" correct in their opinions, the Curohim was wortli certainly not over >il,(iOO or >^1,70() new. 'V\\v witnesses sworn on oehaH" of the United States expressed tiieir vahiation of tiie vessel entirely upon the prices ruling' in the Victoria and San Francisco markets at that time. Alexander .Mci^ean, who spoke from knowh'd^^e of the N'ictoria market, stated that the Cuioliint \\\\c\i lieRv ^14. line saw her in ISS") was prohahh' worth !Sl,70(l. A. \\. Alexander, hasin^- his opinion upnn an ex- amination of the vessel in 1S8S, placed the \aliiatiou 'yit. ' ' at hetween 81,SU(» and s2,0(M), not excecclin;:- >^-_\tMI(). Charles K. IJjiynor, whose experience as ti> the l'*v r)03, line value of vessels is continecl to the SiUi FrMUcisco market, placed her value there at sljMId to >^l,-_'Ot). Ivlward I'. .Miner, who saw the ('(imUiKi in ISSil at ''•''"'•*"' ^"'« lualaska, stated that a ditfereuce in valuation hetween her and a new siiip of uiodei'u construction and Ituild would lie tulK ;")(! per cent. IJciuii' asked what she wiis wtirth in the market, he replied: III tlic iiiarkot 1 iliii- slic would lie probiilily useless,!;,, -kSS, line iiiiU'ss tlicic was some Hpt'cial btisiness to luit lier iiitd tiiat ■"'■ slio could ac('ciierall,v a vessel that had been built \ liuilt at Dunji'eness, iu Washiuiiton Territory, Initeil States, in 1S(;1. She was, acconliuo- to the transcript of re^is-App, u, pp, ter, ."il.l feet iu ien^ith, lit. 2 feet in lieam, and fi.! teet i"i. 103. in (h'pth of hold. Her registered tounao'e wa> 22.30. 8 ■ ' ^w Br ' '/Bii II 1-"^' 1 ■ ' -1 30(J EVIDENCE — VALUE OF VESSELS. It iH a])j)iiri*nt from Irt (linionsions an«l tonnage tliat tlic vessel was hroail, Hat-bottoiued, and of" an antiquated model, and this is coufirined by the fact R., 85!), line that. r,». )rior to 1877, wlieii she was ehanjied from a slo, line ( 'aptaiii Hayiioi-, who saw her in Unalaska, where ox. she w as taken .d'ter seizure, states that "she wa.- verv old-fashioned model — about the same model oi' vessc •Is built about IS.'.Oand ISo.'j. U3 K.,^ior)ti, line It Would a|)i)ear from the evidence that the vessel was in a dilapidated condition at the time of her sei- zure, as her mainmast was broken oti' about 7 feet below the crosstrees, and her fore riiiyiny was carried iwav R..!Mr..line3. That her condition in those \-ears demanded exten- sive repairs every year on the |»ai rt of 1 ler owners is a|t))arent upoi 1 the statement of F. 1). Warren, that the annual wear and ti-ar upon the vessel would be fully Nl.dOO. 'i'liis may in a measure be accounted for l»y the fact that she was wrecked in the earlv summer of }{.. !ii!i, linr l-'^'^.'J on the west coast of N'ancouver Island, at a jioint where she was exposed for several v\ i ('ks to the full KHis, lint- sweep of the southwestern jiales which prevail at that li». period of the year. R., !»37. lin. 10. K., 841, line .V ccordin hn to >\ iirreii. h entiine was smai ind it would appear from the e.idence that it was of little value to the vessel as she was towed into Herinji' Sea throuji'h I'uimak I'ass l)y the D(il/)liin, althoujih "■,jg'"i'*'''"''Mt the time she had all sails" set and was iiiidci- full Iv'., i()l;j, line llidil of stciiill. (>0. u. K., !t08, lini r,\. K., !l()4, III R., 937, lii 10. Captain Warren stated that he purchased the v( tl u-ee vear; atter she was hui It f. M.SOO II( )laced a value ^(», (MM I. Exhii.if, c. 1,1 coiuu'ction with this valuation of ('ai)tain War- I'.. 4(. ' '.•ipn :| EVIDENCE VALUE OP VESSELS. 307 ren's, his testimony in Warren v. Hoscowitz is of interest: 1)31. i}. I want you to state as nearly as you can what the R., 944, line cost of these vessels was. 24. A. The cost of running them? 032. Q. No; the vessels. A. Well, r put the Thornton, I think, at $4,0(K)— that is, the time she had her machinery put into her and was made a steamer of. (Ml redirect exaiuiniition, C'u])tain Warren endeav- (Ml in 1S8.') l)y Warren '^'^g^**^^' """^ to Moseowitz for the sum of 84,()()(), jnid sold at ]iub- hc auction, after ltein<>' reiiidarly advertised, for >^1.()0, \^'^'''' ''°® subject to this mort«;a9, 46. App. B, 104. EVIDENCE — VALUE OF VESSELS. line William Sliej>litli(>liii valued her, before her ina- chiiierv was put in, at about 85,000, and in 1886, machinery and all, at "perhaps .soniethiny over S7,000." ' "ne (i. W. Cavin. who was employ«*d to H«»at the ves- sel when she was jiromided in 1883, stated that he suppost'd "she was worth ])robabl\ >S5,000 or 8(i,OO0, exclusive of her machinerv-" iiesides tiie ship carpenters al)ove referred t(», a report i»f Assistant treasury .Vucnt l>avender is relied upon in the Arjiiinieiit as to the valuation of the vessel. liiif Mr. Lavender saw her in 181)0 on the beach at I'lialaska, and he states: " I should think, irln ii inir, that 87,000 would l)e a fair price for her, including' her t'lijiines and all other accouternients, i-eadv for seii." it is evident that this statement mav be place, outside of the niacliinery. ONWARD. The Ownuil, seized "Jd .\u' vessels similar to the Oinrttnl. Ilnhert .1. Cook, on heiii"' asked, "What is vourR. >^^''^, liua estimate of the cost of the Otniard in l^S()f" an- swered. '•! considered hel ween >*4, 000 and ^jj.OOn, or sometliine of the vessel and never worked upon her. estimated her value in the nei;ihhorhood of 84, 000 to §5,000 "ready for an ordinarv trip." Sanniel Sea stated that he should think a vessel K'.. «">•!, Hue of her kinil, as she was then, would Ix- worth >^4..")nO Alexander Watsdu, jr., i;ave his opinion, from \\;\y- it., 85S, line in;; s.x'U her in the hariior on several o.-casions, that '''^' she was worth from >i4,;)2.") to ^^'),000. Walter Walker stated that he should jud;i»' her K., wo, lima, valiii' to i»e altoiit n4,()0(1. liesides these live witnesses sworn as experts, Charles Spriiiii', half owner of the xcssel and the claimant in this case itefore the Commission, was also sworn on hehalf of ( Jreat Britain as to the value of the vesstd. Meiu^' asked for his o|>inion as to her value, he replied: "1 put her down at >>4,000, idiisidn'mii that '^lic ints irtirfli rcnii liit of fluil to iiic at that sfircial^^-f^y'^*''^' '"'® time" On cross-examination he was asked: "Did \ (»u K.'^Tii.liiiei. intend to te^tify to the market value of the (hiininl in l.SSfi ?" To which he answered; " Xu. no; just irliut slic /rax irnrth to iin/sclf' I'li/fiii/i'il in that hii'^iiii'ss, hdriiK/ itoth'nifi to lintr on lltr inarl.it irhatrrrr." The oidy tw*i''t stilted tlifit 1k' would consider tlie 8. ' (hnranl to be wortli in the port of Victoriii in the year lHHr> from s2,2(Ml to s2,30O. R., S79, line In ('orrol)orntion of this testimony of ('}ij)tiiin (ii McLean's it a]))K'ars that the Onward was transferred in June, 1884, to ('hades Spriii}-' ct Co. for 82,20(1. ANNA HECK. App., It IIL'. K., U33, t!7. K.. '.17.-., 3.-.. K., 974, ,-)!!. K., u:u. 15. K.. 1134, ,"iO. 1{.. 1134. 55. R., 978, 3."). R., 9~><, 50. R.. 9S1, 6!l. R., 1016, 25. !'• The Jy/w« />Vc/i' was huilt at San Francisco in ISdo. Her length was iilij feet, beam, 22. (! feet, depth of hoM, ;") feet. She iiad a rejiistered tonna. ''"" Siie was purcha.sed l)y d. D. AVarren in 1872 for liiieS4,(K)(), inid in iSSd she' was fitted for steam. Only [j„g()re<;on pine was used in her construction. Ill lss;{ ,she was burned to the water's edu'e, and lino 1 .1. . 1-. ^ was rel)Uilt at \ ictoria. "'"' Captain Warren testilied that the -cost of rebuildin}^' line was al)(»ut >:" The machin- ery whicii had Iteeii in the vessel when .>>5,<>0(), it would apjx'ar from the evidence covered whatever work was done in making' the engine of use. Five witnesses were sworn on lu'lialf of (Jreat iiritain as experts upon tiie value of the vessel. All of them were j(»urnevmen ship cari>enters. ''"•' Walter Walker considered her worth ss,00(> or s9,()(i() when she Hr.st oanie out in 1SS3, after the line repairs, and estiimited her depreciation in four years to have been lietween >;500 and 81,000. lie stated '°*ulso that his value was based "on the day's work and material, whether costly or not." Orland(» Warner, who worked jiart of the time on line the Anna litck while she was underf>(>in<>' repairs in IS83, valued her without her maehinerv at from $5,000 to $6,000. KVIDENCK — VAl,LE OF VESSELS. fre<)r<>e \V. ('uvin sjiid tluit the vessel would repre- sent nt that time lietweeii S6,(l00 and ^7,000, exclu- sive of niaciiinery. On cross-examination lie stated that she was probably worth S7,(|()() ,),• s,s,()(K), exclusive of machiiierv. liichard Hennett, wlio stated that he had not seen nnu'h of the Aiiiiu lire/,- since 1SS3, fixed her value at about s(;,50(). All of these witnesses, as heretofore shown, l>ase their valuati<»n U|)on the cost of buildin;^' a new vessel at Victoria in the years iss;} or J SHU. it nuist l»e also borne in mind that the cost of repair work was more expensive than new .vork in Victoria, and that a vessel similar to the Amid Jlnl: could have ])robably been built in 18S,-} ))v the da\ 's work for a sum less than the cost of her reliuihlinii', but at the time when the accident occurred Warren, who was then her rej>istered owner, was al>sent from Vi<'toria, and the repairinji' was ^4. (»()<» in 1SS4, l)y one flartnell. to dosepli Moscowitz. Subji-ct to this mort;>aji<' the vessel was sold in ISS."), jit puldic auction, for^if. In the fall of 1SS6 she was aiiain sold for a nominal price, subject to fhe same mortjiaoe. in February, 1S8(>, tlie assi<>nee of ,1. j). WarnMi, chartered the (iidcc, Doliiliiii. Ahiui lln/:, 'rhunifdii, liiisflcr, and oiu'-half of the IT. /'. Sdjiiranl to dose])h Hoscowit/,. the niortf>a{>'ee. In tiie pi'eamlde of the charter tlie followin', at 82,600. 311 l{., lOHl, lino 40. I{.. 10:«, line K.. WM, \iw. 1. I{., 10;W, line 10. I{.. 1031, line I{.. 108(i. line U., 10S7. lin.> 1.".. K.. loss, lines 10. ."):i. !{.. 10S7. line 12. K., lllUi, line .i.i. m: I, ■ r It ' ' 312 ' ' .1; R.. 1276, S3. R., 1278, U. R., 1L'70, 20. R., 1282, 2U. EVIDENCE — VALUE OF VESSELS. Ill a IctttT t'roiii tlic TiiitcMl Stiitcs iiiiirslial to tlic Actiiiji' Attoriicy-Cu'iicral ot" the I'liitt'il States, (latcd August 23, 1SS8, the tollowinjr appi'nrs: line The owiuTs of the scliooners Aiiiki /.VcA', (Irao', nud Ihl l>lihi chiiiii that the apprai.seiiieiit iiiaile at Sitka one year a{j<> was lit the time iwirsHirr, and that their value on accoaiit of tlie iutieinent weather of Ahiska lais in the nieantiiiie coiKstantly been depreciated, and therefore |iroved l»y His Mxcel- leiicN tlie ( iovenior-CJeiK ral, in coiineil, ret'errin;^' to a former re|Mirt adopted in I )eceml)er, ISST. in relation to tlie seizure of tlie IT. /'. Siii/ininl, (iiiirr, Aiiiiii /tri/,\ Ihi/iiliiii, ;ind Add, reported that — liue One vessel was released on the l.">th May, IJSSS, under bonds, vi/, the si'lutoncr W. I'. Snj/irinil. The owners of the other vessels (except the .l(/(r. for which no owner could lie found ) ccrisidcred that the appraisement was largely in excess ol' the \aliie ved over ten months ((fh'r this telejinuu to the minister of marine and fisheries of Canada. It is chiimed, therefore, that it does not in any wav aflect the weight of the evidence prodnced as to tlie exeessiveness of the ai)praisement, and it would appear that if the owners in .Inly were willin;;- to l)on(l the vessels at the appraised value, they recon- sidered the matter before tiie date of die letter (»f the United States marshal. The principal witness proine and boilers would be approximately 8.i per cent. Yet he stated that the Tlioniton's machinery could be sold (ifterfivc Hears' usin<>' at but Ih percent oti' its original 40. R., 996, line value. These statements of Thomson are much 62. ' line B S- -40 314 KVIUENCK — VALUE OF VE88EL8. !it viiriiHH'(* with tluisG of Andrew (Jray, inspoctor of l)»>il('rs in 18Hl'. 'I'lie latter witness stated that iria- t'hinery kept in jiotxl runnin*;- (»rder would depreciate K.^ mi8, lino-, pj.,. ,.,.iit J, year, and tliat lie had sometimes seen siM'ond-hand inaciiinerv no at one-fourth of its cost. lie added, "It is hard to place a value on second- R., lojo, lino hand machinery." AH the other witnesses, exceptiiif; ""• (Jray, who are produced as experts on the machinerv hase their opinions on the descriptions , ■IJ. lino line R., 1010, 85. K.. 1011>, lino line U., !t7i», 31. lino R., ii7ii, 60. lino ORACE AND DOI.l'HIN. The (hare and Ihtl^thiH were huilt at Victoria; the former in ISSl and the latter in lHS-_>. Accord- in^' to the tran.script of rej>'ister, the hol/iliiii's length was 77 feet, beam, 22.7 feet, depth of hold, 7.5 feet, and re<;istered toniii<<'e, (lO.lO. The lenji'th of the (rnirc, accordinji' to her rejiister, was 7(1.;") feet, heaiii, 23.4 feet, dej»th of hold, X feet, and re<>isterod toii- naji'e, 7las tir, vsliile the former had yellow cedar and oak as part of Iier material. .1. I). Warren, who had the vessels laiilt, testified that the (inicr cost ''ahoiit SKI.OdO," while the /W- ph'ni cost "sometliiiiji' over sKi^ooo." In ^'iviii^' tliesc amounts he iiudiided the en<>iiies complete. All the evidence sul)niitte(l on Itelialf of (ireat liritain as to the value of these v«'ssels is based n|ton what /7 inmld cast In hiiihl iliciii. .S. Mc(". Smith estimated that the Ihtlfihin would cost 811,700 when launcli(Ml, and the (inirr 810,00(1. Walter Walker, who also based his valuation upon the cost of construction, stated the (iracr was worth "in the neij-hborhood of si-j.OOO," and that in 1SS7 .she was worth about 813.000 nv ^14,000. KVIDKNCIK — VAI.UK OF VEMKLS. 315 Uit'lianl Ht'inu'tt, iiiititlu'r joiinu'viimii ship cariM'ii- '*'.j^j'"''"' ''"* tcr, statiMl that tlu' (inirr, lu' "sliSl2,(l()0 ami sia.ooo" (•(Miiph'tf, ami that tin- k., kw, lUm Jtalpli'iH he "should suppose would he worth >'2,(M)() *'*' more." In answer to a <|uestion !»y «»ne of the Coni- nilssi»»iiei's, he staled that his valuation meant the rust ot" the vessel. (leori^e W. Cavin reaehed a valuation upon the "'|,|^^|'*J"' ^2^' Ihlpliiiiof "about ><-*-.',()0() or s-_>;5,0(l(» with her nia- chinerv in," iuul ui)ou the^Z/wvot' "ahout >^lS,()(>l)or K., iiw:.', line S2(),()(>()." '^"• Orlando Warner <;ave his valuation of the Poljiliiit ^^ ,,,31, j^^^ as about !ii*9,(MH>, exclusive of niaehinery, Itasiuji' his 12. valuation, as usual, upon the cost of anistnictitiii. Which of the two vessels was tiie more valuable is''-gi"i^' "•>« uncertain. We have James I). Warren, a^ent of the owner, - constructed of kieki wood, while her p1ankin<>' was of C)re<;(m pine. According;' to her refj-ister she was To feet long, 21 feet beam, and 8 feet de{)th of hold, with a rejiistered tonnaj^e of ()r).23. C. A. Lundbery, one of the jtersonal claimants be- fore the Commissioners, stated that her hull and H., 1210, liuo spars actually cost 8r),50(), while the balance of tlici}'' 7^4 ij^g (mtfitting of the vessel was 82,000. ■!:<■ . From further examination of the Record this state- is, ''' 31G EVIDENCE — VALUE OF VESSELS. 1X3. Ai>p. IJ 184. R., 1239, line 58. ment of tlie mate of the Ada must be accepted with caution, as it appears that in April, lS8(i, wlien the vessel was four years old, twenty- one shares of tlu> App^ B, p. schooner, and one-third of the interest in her boats, ji'uns, annnunition, and s:nall arms were transferre*! by Wiiite, then the sole owner, to (liray, for !^l,333.3i{. The followiii"- year the ves.^el was brouyht to Victoria. p.,I. J. Gray, on the 3()tli of March, 1S87, purchased twenty-two more shares of ihe Ado, the consideration in the" bill of sale beinji" stated as s2,36S.40. The testimony of Gray disclo.ses that the actual price he ]>aid for the third he last purchased was 81,333.33, besides which, and included in the con- sideration mentioned in the bill of sale, was the cost of repairinji- and prepariiiii' the Ada for her trans- I'acihc voyaji'e to Victoria. It would appear from this that one-third i>f the v«'ssel was sold in the sjirinji' of 18S7 at the rate of S4,0(>(> (Mexican), at Shan«>- hai; and (iray further testified that it cost to brin<;' the ves.sel across tlie PaciHc "al)out 8-JOO or s2r)(», may be, runniuu' expen.ses and waucs of the vessel." Soon after she arrived, which was in the earlv ])art of A])ril, Captain Siewerd, whose (pialitications for R., 1237, liD( It. K., 1221), line i • i i i 1 i i 25, placm- depreciation, liave been worth to him ^1,8(M) less than he offered in the spriuj;-. As lier voyaj^e had been completed before she was ])oarded by the oflicers of the Inited States, even acceptiuj^' thisofl'er of Captain Siewerd's as e\ ideuce (tf her vahu', she would have been worth in the uei<>'hborhood of !S(;,8()(». .J. I). Warren, who acted on behalf of the own- ers of the Ad .«<8,000; .sonu'thing of that sort. The claim is made in the Argument on helialf (»f"''.A'"K.i28, Great ih-itain, that the value of the Aila was S!l, (!()(», ""'''^' or full// SJ,(f()() iiioir tlidii III!' (iifiirr rldimcil iit JSS7. The only witnesses i»ro(luct'd on hclialf of the claimant in sujjixu-t of this claim arc dames (iaudin, master of schooner, who stated slie was tliclu'st seal- ing- vessel iu \'ictoria, and 1{. CoIIister, wlio said that she was "worth fully ^^M, ()()(»," basing- liis ojiinion ''"•.: '^'•'' ''"" upon the knowledge wliicli lie possessed of tlie value of ships and tlie cost of slii|iliuildmg- in the port of \'ictoria iu 1SS7. Tlie compete uc\ of these wit- nesses togivi' an opinion as to the Ada's \aluation or superiority has been hei'etofore discussed. Two witnesses are produced on belialt of t lie I'liitecl States as to the value of the Ada. ('a|itain l{a\iior, who, as captain of the Allir I. Ali/ft; w.is .seized on the same day as the vessel in ipiestiou. acconijiaiiied her t(» Tnalaska, and was jirc.seiit at her trial iu Sitka, stated that the Adn was worth on the market at \'ic- tiu-ia in the fall of the year ISS7 about SH, 000, '''{,/-•"'-' ''"« reaching this valuittion upon his knowledge of tin* United States markets, with 10 per cent added fo; the Canadian customs duties. S^f I It m I 'it I,' as 318 EVIDENCE — VALUE OF VESSELS. '*•' 1264, Une C'upt. Alexander McLeau gave his opinion that the market \ahie of the A(la in Victoria in 1887 was about S(j,500, from wliich nuist be deducted the wear and tear for a full season, having been seized August 2o. The United States claim that, for the vessels e^l/ jd and condennied, owned by persons in whose behalf Great Britain is entitled to claim com])ensation from the United States, they are liable to pay the market value of sucli vessels at the port of Victoria at the time of their seizure. '" wf?! PliRSONAL CLAIMS OF CAPTAINS AND MATES. The personal claims submitted by the Convention of February H, 1896, to this Hioh C<»nnnissiou are the claims submitted to the Tribunal of Arbitration at Paris, between pa<>es 1 to 60, inclusive, of the case of Oireat liritain as filed before that Tribunal: These claims are: Personal ilaimx. J C'laiiiieil hy~ Fr of Tlun-iitnii tlo Harry Nomiaii, mate of Tliririitoii do Jaim's <>;:ilvic. master (if CaroU-ua ilo Jaiiief* lllat'k, miiti' nl' ('jiroli-iia dn Tola] tnr 1880. 1H87. ■\VaiTcii. master nf Dolphin ■ Siilt'criiius and Iossch; Xaviy;a- tinu ficir vtssels rmm I'lia- laskii to Sitka. John lit'illv. mate of Itnlphin Sntrt-rinjtrt ami losses, (iior;:e IV Fcrey, inastrr of W. P. Saywanl do A. It. Liun^^ niiitc of W. V. Siiywiird do Louis (Hsen. master of Anna herk do Michitil KeeCe, nuilt' of Anna Beck d'> , W. I'etit, master of (Irnee tht C. A. Lundherg, mate of Ada do .f4. 000 :;. 5t«i 4. mm 2. 'lOO 2, .".UO 2. :>{») 18, Ono Total for 1887 Total fi)r lH8t)and 1887 1. (MHI 'J, IHIll l.OOU 2. lUKI 1.110.1 2. nnii 2. (IIHI i:(, «;!.■) 49. 635 No other claims for personal damafjes were sub- mitted to this Iliji'li ("oiiimission l>v the ("onventiun, and no sum can be awarded to any claimant wliose claim is not set out and included in the schedule above given. 319 I I 320 PERSONAL CLAIMS OF CAPTAINS AND MATES. The United States took this position earh- in tliose proceedings, and moved the liiyh Connnissinn to dis- miss from consideration the ))ers«)nal ehnm of James CJaudin, for the reason that it was not embraced in the schedule of tlie British case, Ijetween pages 1 to GO, as i)reseKte(l to tlie Tribunal of Arbitration at Paris; was not referred to in article B of the award of tliat tril)unal; was not embraced in the Conven- tion l)etween the United States and Great Britain, of February, 189G: that it reand)le to the Uonvention of 189(). All [(crsonal claims other than those named in the above schedule umst be dismissed from the consid- eration of the High Commissioners, and no damages can be awarded the claimants. The schcduledisdoses that noclaim was made before the Tril)unal of Arl)itration at Paris for damages aris- ing from the illegal arrest and imprisonment of the mate <»f the (iracc. A claim is made for damages suti'ered by the mate of the (iificr in the sche(lule of the claim of that ves- sel in the British Argument. This claim undoubtedly was made by error. The testimony diument for the first time were not presente-es arisin*:- l»y ri'ason of "illeiial arrest an' Sitka the testimony conclusively estaiilishes that the men were never restrained of their liberty, except that they were com- pelled to remain in Sitka; that they could ji'oand come as they chose, and that, as a matter of fact, the men did have complete control of their own movements in Sitka. They were l)ronj;ht before the court and sen- tenced, l)ut prior to the sentence they were not restrained in any jilace umler lock and key. \ ^uard was never placed over them, and they were never, at any time, /// jdil. One of the jurv rooms in the court-house at Sitka was set aside for their use. This room was larj>e and c(tinfortable. 'i'liev wi-re provided with food reji'idarly by the marshal, and coidd, durinv the I'liited States marshal. W. I'etit, master of the (iidcc, was em])h>ye(l l)y H., 1195, line 51. L'liited States marshal to act as eaptaiu of the H.. ii6.-), i (inicr oil this trii> to Tiialaska. lioth I'etit and Weilly have iiersoiial claims for imprisonment, surt'erin^, and loss, and the testimony 40. snows diat not oiilv wi-re thev not restrain ed of their lihertv, hut that tlie\- were actually employeil, de- parted from Sitka, and paid for the servici's performed. Andrew D. Lainji', mate of the Sni/inird, while he was niijirisoiici III iidt a trip to \Mctoria, remainiii"' vav from Sitka until a few days priiu' to the time that he linally dejtarted for home. The oiilv testimony adduced on behalf of theelaim- anls relative to the deleiitioii of the masters and mates in 18S(; was that of one Marketich, who was tin- first witiie; sworn hefore this llii>ii ("ommissioii, and wlio.se testimonv needs no comment m-no VI lis iier.son was rant, iinahle to speak the Kn^lisli laii,i:iia<:e intel- liji'eiitlv, and absolutely iniworthy of credence, lie alone, of all the witnesses who were produced, oave testimon\- that the mates ami captains at Sitka, in the ve.ir l-SSd, were treated in a manner, by tlie jiidji'e of the court of the I'liite*] States in the 'I'erritory of Alaska, not becominji- a judue of one of the courts of the Tinted States. He savs that the jud psu't of Her ^Miijt'sty, snid tliat the ntttni in wliicli all the musters and mates sk»pt was oiilv 10 hy 12 feet in size. On cross-examina- tion this witness said : Q. And till' room where you slept in, or were coiitined in, was a room just over the jndye's room '. A. Ves, sir. (}, The Jury room ? A. Yes, sir. Tliis room, it was afterwards esral)lislied l»y tlie linetestiiiionv, was ''alntiit 30 to 3.") feet lonji' by alxmt 1") feet wiih'." The testiiiittny of ^larketich is l»rief No weif^ht was ji'iven tlie story by tliose wlio heard the witness at N'ictoria. Capt. Cliarles K. Haynor was «'.\amined fully and in (U'tail relative to the treatment of the cajitains and mates at Sitka in 1S8G l)y tlie autlioritiesof the Tnited Slates. Tile testimony of tiiis witness l)eariniven by Caji- tain Haynor, of tlie occurrences at Sitka was taken as the true history. Kvery witness who testitit-d there- after, relative to this feature of the claims, contirmed in some of its details the statement of Cajitain Haynor, and denied it in none. ""« Captain Kaynor .stated that the captains and mates were not confined at L'nalaska prior to the time that they were taken to Sitka on the revenue cutter ('ar- il in; that he had seen Captain Oj^ilvie aniven that tiiey should remain on board their vessels. 1'"" Q. After y(m got to Sitka, Captain Haynor, what steps were taken by the ofBcers in regard to your arrest and detention ? PERSONAL CLAIMS OF CAPTAINS AND MATES. 325 A. Well, they told us* that we could consider ourselves under arrest. (f. Were you bound over to ai)|)eiir f A. Wo were bound over on our own reeo},'ni/.ance. Q. And were you fjiven your liberty iluring the interval? A. Yes, sir. (}. Did you take advantage of that liberty f A. We did. At least for a few days everybody went around. We were on our own recognizaiK'e, and they went for four or live days and then surrendered it, aud then they let us an around Just the same, anyway. (). What was the object of their surrenderinj; their recognizance? A. VV'ell, beciause in- tJiriiiiijIit it irox rasicr to i/o (imlmtdnil xhrp ill the jury mom tliiiii it inis to i/o on himril tin; ns.sels. Q. Aiul before tiiey surrendered tiieii' bail they liad lived on board their vessels, had tiiey .' A. Yes, sir. (}. Tliat includes Captain Ogilvie and Mate Itlake? A. Y'es, sir. (y And, so far as you know, the otlicers of the other ships tiiat "vere there ? A. Yes, sir. i). These ships were the Thornton and the Oniriml.' A. Yes, sir. Q. Were they compelled to sleep in that room, or to renuiin there — that is, before the trial we are talking of now? A. No, sir; they could liave gone on board the vessel and 8lei)t 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. Yes, sir. (}. Diirinii the daij they irere coiijiiwil within the limits of the court ■ ho iixe:' A. Not (It (ill. (). Afterthearrivalof the captains and mates of the Tliorn-R., 4!ts, ton and Oniranl, were they complained against tbrmally? H- A, Yes, sir; they were. (}. Were they arrested in the same manner that you were? A. Yes. sir; they were. Q. Were they restrained of their liljerty in any iray np to the time of their trial.' A. Xo, sir. (}. Now, Just tell the Commissioners about where the mates and captains slept at Sitka before they went to the Jury room. I believe the Ciirolena, the Onirard, and Thornton liiio 326 PERSONAL ('I.AIMS OF CAPTAINS AN'1> MATKS. were left at rimliiskn,m» ))rioi' to the time they went to tlie Jury room wlicre did tiiese men sleeit? A. They slept iiboiird the Sail IHvi/o. I}. Tliiit is your bout :' A. Yes, sir. if. Dill tliey hiive tlieir own lieddiiip,? A. Ves, sir. if. And about liow lonj;' dih'. And he complied with their request ? A. Yes, sir. (^. It was a step taken for their personal comtbrt was it ? A. Ves, sir. They done it because they did not like — of <•our.se the Smi lUeijo was anchored some ways otl'shore — and they didn't like to pull back aiul forth aboard of her to get their meals aiul sleep. / (tls. Was there any abuse ou the part of any Federal officer there ? A. I uever seen any uor ever heard tell of any. ('ii|»tiiiii Rayiior tlicu saiil that tlnTc was no coiu- plaiiit ahoiit the food that the men were sui)])lie(l with. R., 500, line Q. Were there any complaints made by any of the unites 43. or cai)tains as to the manner iu which they were treated there? A. No, sir. i). Or the words that were used iu reference to them? A. No, sir; I never heard of them. FEKSOXAL CLAIMS OK CAI'TAINS AND MATES. 327 Ij, hid you hiur Ihv word " rohbvm'' imed in the vharijv of the ioiirtf A. / (lid not; no unch word, 'I'Ik' ('iiptiiiiis aiid niiiti's wtTo then trii'd by the COUl't. (). What liberty did tliey liavi'! A. VVt'll, they could no all over tlio tojt of tlie courthouse, ill the court room, and all around (iiu around the porch, id !/oit vnv xir anif of thvui- men outnide of ilic Jury room, or owoi/ from the immtdiate rieiiiitji of the rourt-houne durimj thin time of eoiifnemeiit after that fimt nenteuce.' A. Yis, nir, i). Where did i/oii see them:' A. Well, I hare seen them out in the street iwonnd Sithit and in different stores; 1 couldn't give the name of the stores — who kept them. (v>. hid I/OII ijonrself ijo out dnrinf/ that time.' A. / did; yes. l}. Were any of you locked in oi- guarded during that tinu- .' A. Well, there was none of us locked in at all; they had a nnui up tiiere for a few days who was supposed to lie a guard, but he never stopped us fron going anywheres that we wanted to. Q. After the lifteen days elapsed which you si)eak of as being the time you believed the other mates and captains served, tell us what occurred; how they were released .' A. Well, the nuiishal released them, and they weni right away on the steamer to Victoria. (}. Were they released in order to take a l)oat to Victoria; did it not leave the next day? A. Yes, sir; they were released at the time the steamer was tiiere so they could take the boat and not be detained in Sitka any longer than possible. i). After the sentence of the court was there any ditl'eience in the treatment of the men, both as to the fare that they were given and as to tlie i)lace where they were allowed to sleep and as to the bedding they had ? A. No, sir; none at all. Beariiio- iqxui tlie chum that the »'aj)tiiiiis and mates were juit in jail an'(» iih tli('\- (U'sircil wliilc tiu'V were in Sitkii. ('iiittiiiii ( ))iciireil. I.jiter liis Itody wiis t'oiinil in the wooiU iicMr Sitk.i. ("ross-e\iiinini'(l rehltive to the tre;itiiient tluit wiis itecoi'tled the musters lUid mutes, ('ii|itiiin liii\ nor snid: "ne (). Now, then, (lid vmii have ti fruiiiil ever you before tlie trial .' A, No. sir. (}. The door was never hn-ked? A, No. sir. *). Did 11 };iiard stay there at night:' A. Yes. sir. (). Was tlie jiiiard uniied .' A. He was not. i}. Wlieii you went out did the yunrd pi with you if A. No, sir. (,». Wiiodid? A. Nobody. (). Who went out ? A. 1 went out inysell'. (j). Anybody else with you .' A. In t'aet they all went out. (). Vou had to iivt leave? A. I had to ask the marshal; and by askinft tiie marshal we eon Id go out. (i>. I»id yon have a light at niyht? A. Yes, sir. (). Did you sh-eji on tiie tloor ? A. We slept on a mattress on the lloor; yes, sir. Miiriiktiidi tcstiiied that while iit riiiiliiikii the crew were coiitiiie(l ahoiinl the Onward iind were iiniii)le to leave the shi|i, and that all the crews were conliiied iihoiird their res|)ective vessels. -Fumes .Miinjii-r. u witness called on liehult" of Great Uritiiin, testified: line (,J. Will yid not anvone stop vou? A. No. Q. Were you ever interfered with in any such trij) you took about Sitka '. A. Not that 1 remember; no, we were not. Q. Were you ever tried '. A. No, sir: but the 11'. /'. iSiii/irard was on trial that day. (-}. \\\'ie any one of the uiasters or the mates tried? A. No, sir. H., u)97, liue AixUvw 1 ). Laiiiii-, rcstitVino" in liis own lu'lialt', sfiid: i). What was done with the schooner? A. She was brought inside, into Sitka Harbor. Q. "What was done with you on that inorniri^ ? A. We got in there between 7 and 8 o'clock. The trial was coming off of tiie crew of the Aiiiia Hirk and the Chiil- leiif/i: and they tried us the same »biy. (,>. How di(l you know you were going to be tried; what notice was given you '! A. The deimty nmrshal says, " Yon better come up to tlie court, the trial is going on of the other two vessels, and they will try you at the same tinu'." So we went up in the court. (). Wlmt iiappened when you got into court? A. We were asked by the judge — Judge Dawson — if we were sealing, ami we told him we w!),v, line month of ( )ctol)er ? •*"■ A. For jiood; yes. (}. Ifow do you li\ that date.' A. I>(^cause we all eaint! away tojtether; the only one we left was Oaptain Feiey. (). Vou say you r.inte away lor jiood in October. Did you come away hefore li;;:; '. A. I did; I ciune iiway in Aujiust. (f. Mow loUK' dill you stay away then? A. I arrived here (N'ietoria) on Saturday and I was on my way back on Monday. Q. Why did you j;o back? A. To .stand trial? Q. Why did you conu' away? A. 1 went to ,Iudj;e Dawson aiul asked him for jwuMnis sion to (!ome home ami see my people, ami he said there was no troulde as lonu as 1 j:ave my word and honor to imni' back and stand trial; and 1 did. and went back -.wni stood trial when it C(une olf. (J. Where did you stay in Sitka while you were there? W. iniis, Uno A. In the barracks, in jail. 1 lived with the marslia'. '"'*■ They jiave us the. jury room to live in (.). And furnished nou with provisions? A. Ves. (). You had liberty to leave the barracks? A. Ves; we <'onld ^o all over Sitlforc th*-' marshal tUe Mtglfur we arrived there. Q. Who took you? A. The olllcer titat had •■liiWtfe of th* sehoon*ii'. ftf^Kik us to the marshal, btr we 4id w«'iT see tin- niar.'^lial, and *re came back on board tiif CK^h'H»ir- with the oHh-er. (}. When \iMi , ame b^-k *hat did yon do? A, Stayed on the ship that Hijilin Q. The next day what did you do? A. The next da,\ 'U the day alter we were broujjht before .Iiidge Dawson, 1 think it was tlte day after. v^JlAfSi^ > I ■fi '1. ^in'> 33 PERSONAL CI-AIMS OF CAITAINS AXU MATES. IJ., IILM (J. Wliat Wiis (lone wifli you when you got befon' Judge Diiwsou t A. Wi" were cliaigcd with swiliug illegally in Bering Sea, and told we would liave to wait lor our trial until tlie h'loih would ani\t' tlieic. i). Was tliat told to you iR'isonally .' A. It was told to us all when we were in the eourt house. ^). Where were you sent to:' A. We were sent nowhi-re. We were let go anywhere we liked on our own hail. <^^. Did you gi\ e bail. A. There was no giving in it. I had iH)thing to give. !Ie told lis lie would let us out on our own bonds of >*.■)(>(». (^>. Did .\on conn- back before the eonrt again? A. We iiad to go back two days alterward. Q. Wliat hai)i)ened tlien? A. We were geiting hungry, as there was nothing on l)oar(l the ('luillciinf. and we had to go ami see what the judge was going to do for us. <^ What did you .say to the, 'udge? A. Wetoldhini how we were situated; th. i ". ''ad nothing to cat ami int place to stay, and he handfc! is f/er to the inarHhal. (). Where did the marshal take you / .\. The niarsha! showed us a place in the court-bouse. ii. That is in the grand-Jury ro(un .' A. Yes. i). You weie allowed to sleeit there, were you? A. Ves. Q. I believe there was not a guard imt over you? A. N(.. (,). Did thev supph' you with food? .\. Ves. (^>. And up to w hat time did you stay in that way in Sitka? .\. 1 think it was the I'-'th of Seiitember w<' left, line (^>. Ihniiiii tlii' (hti/limt iinu irere not comii'llcd to stay in the room . A. No. fee could I/O iit iiiid out irhciiiTt lilcd. (). Around the stmts of >Sill,(i , A. JV.S. (^>. W'iierc did you take your meals? A. In sonu' room in the building; I do m)t know what ])la<'e it was. (.>. Wa.s it m»t with the marshal? A. vo: not with him Q. You had the same thing.H. practically, as the marshal had: yon had the same sort of table? PERSONAL CLAIMS OF CAPTAINS ANIJ MATES. 333 A. As far as I know. yes. (). NN'as ii (al)lo set for you? .\. Yes. . And you had eliairs to sit dcwu to the tabic .' A. Ves. Q. And a table well provided foi' you? A. Ves. (). And conilbrtablc I'of von to I'at tht'i-e? A. Ves. (}. Tlitn-e was no f>uard iiecoiupanied you around the streets .' A. :So. i). You used to jio out lishinj;'? A. If we felt that way we could j^o tishinj^. Q. As a matter of fact, some of them did go lishiuR? A. Yes. Capt. Charles E. h'ayiuir ti'stilicd relative to tlie treatnieut acconled the captains and niatesot'the seized ^^x}-^^' ''"•' schoiiners ni 18^7: (i>. Were you arraigned in ISST, or released on a bail boud ? A. I never was either. Q. So far as you know, were auy of the nuites or captains that were taken to Sitka in 1S87. during your presence, ar- raigned or bound over to ajipear at some later time? A. No, sir. Captain Haynorwas testifying' rohitivo to p'uci'cd- inw after he arrived thereon the .l///r 7. Almi; wliich ''•:^^"'l' ''"'" was seized on rlie '2i)U\ ot Aii>:iist. Cii])t. .fanu's I). \\'arren, examined relative tn the K., 1207. line treatment of the masters and mates ii. 1S87, said: ^" Q. After the seizure of the vessels in 1887 did you see the captains and mates there in Sitka '! A. Yes. i). They were all in Sitka together? A. Yes; 1 don't reniemher how many, but 1 know tliey were there. Q. And icor then in cnslodi/, our hand in court. (). And then you were told to j;o wherever you liked? A. As lonji' as we were back at the trial. i). llow loll};' after that were you notified of your release.' A. 1 think it is the !)tli of September that we were notilied of our lelease. . Vou are pretty sure about that date? A. 1 can soon tell. I think that is the date. |E(^fers to memoiiindum.| (»n the !)th of September we were called iu and released. (). Were you all tojjether there, the captains and mates of the detained vessels? A. 1 think we were. I think all the captains and mates tl'atwerc there were released; at least my entry goes in that way. VVe were all called in. Q. And told you were released? A. 1 should suppose that means the lot. Q. ]Vi;ir you slitil up inant/ room, or tohl to yo to nnij room, or oin/tliiiifi of tliiit norf.' A. / ir((K (dloiriil to (jo irlivri'ver T su. presentation at \ ictona. HEKSONAL, CLAIMS OF L'Al'TAINS AND MATES. Tlic following' sriiteiiuMi*. sliows tlic increase in the ainouiit (Icniiiuilcd l.y tlu'st' claiiiiiints at tlie vai'ic is staj^vs (if tlic arliitratidii prncccdinjis hctwccii the two Gnvcninu'iits. 335 Moiiroi- ....| ^i,[m Miirki'l ich ; -.1. .-,11(1 (iuttnrilisrll 4 (n}|, N'lniiiin ]...V.]]][ -z .-illil O^zilvii' (difd ln'Cnn- ti-hih •' -|im ;'!'il<'' ' '.'.'..'.'.'. i.'Mi \\ iirrCll .1 i;;{r, |!>'ii'\ ....'.'/.'.'.[['.'..' ]'.m\ l^^'y -, 11(111 I'""1SJ l.dlio 'J}"™ a, will ■Kci'li- I . ,11111 !<>'"• 2.(1011 LlllKlli.Mg .., 111,11 iihii at Viixil iIiTla. I'iiiiiii. *L'. .'lUll $4. llOil :;, rioo 4. 01 111 •.'. r.oii , 4.000 •J. 500 1 4,1100 U, 31111 ' 4,000 2. .'.Oil , 4.(1110 ;{. 11(111 1 4.0011 *j, 1100 ■ 4,01111 '.',11110 4. iimO ■_'. omi 4.0(1(1 ■J. Olio 4.1100 2. 0(1(1 4. 000 ■J, (Hill 4. 000 ■J, (JllO 3,000 Tlic observations clscwlicrc nunU:' in tliis Arjiumcnt. rclari\c to tlic cxtui'tionatc nature of tlu' claims pn-- sented by this class of men to international tribnnals, apply with add.-il weijiht to the claims of these mas- ters and mates for damaj^es arising' from alleged ille- gal arrest and iinprisoiiinent. The I'liited States assert that its oHicers acted en- tirely without malice at Sitka, that the cajitaiiis and mates were never inijirisoned or restrained of their liberty, and that tiiere was no detention except that they remained in Sitka for a time. The claimants have shown no actual damage, and no snm can l)e awarded for ])aiii and suH'ering or injured feelin"s. The argument of the motion made to dismiss the claim of .lames (iaiidin from the coiisidei'atioii of the High Commission was jiostponeil until the linal argu- ment. The rnite(i States contend that this cdaim is not I'leadings, lirojierly before tiiis ( 'ommission. jj"'"' ^"■ .;! ff'" i 1; I 336 PERSONAL CLAIMS OF CAPTAINS AND MATES. K., 1808, Hue A stipuliitio.'i conseutiuy that the HiiH>t' tliis cliiiiii, in tlic Arij'imu'iit oti Ix'liiilt' ut' (ir«'iit IJi'itiiiii, riidicitlly ditlcrs troiii tlie cliiini iis ])r('sei.t(.'(l l»y tlii' testimony ot' the cliiinuints jit \'ict(>riii. '1 lie evidence oti'ered relntin^' to tlie cost ol" supplying- Mnnsie's tnidini;- stiition, the cost of ecliiipitini;' ii senlinu' vesscd tor ii luintini;' voviij^c on the west const of X'jincoiiver Isltind Ix'foi'c the de- partm-e of the sliip for the voviin(. to Uerin;;- Sea, and the vouchers placed in evidence, aiiLiTeiiiitinij: about !^6,00(), wliich, accordin;^' to tlie (daiinants, rep- resented tht; cost of outlittinu' this small schoon<'r of 2S tons for a sealini;' voyage in UeriuL;' Sea of two mouths, receive no consideration in the Uritish Arji'ument. 'I'he ('2 the (Jovernment of the Tniteil States in ^'.i riiited States district court of Alaska. 'Flu arti(des on board, as pri'|)are(' cutter, is in e\ ideiice. The ilecree condemniuii' the \-essel was entered on the 4th day of ( )ctobei-, ls,s(i. She then Ix'came a total loss to her owners. The property described in the inventory is the run- B s 43 " 337 line ti(i. .\ II - SWIM- of till' r II i t o (I S t a t !■ s. I'leadiii us No. 1. mventor\- ot thel'-x- !•'. '■• !«• , .. • . , C'l. No. 1, )\ the oilicers ot the ]:xh i M t-*, m 338 Kx. No. (i. It. N". 1; liibitK, 27. K., 40.-. (iO. Tlio ])roi)t'rty tiiki'ii, not iiicliidiMl jis ii ))iirt of the vcssi'l, is set out in !i receipt jiiveii to ( "iiptitiii Al)l)ey, ^,y coiiiniinKlin^i' the rt'venue cutter ( 'unriii, 1)\- the Tnited Kx- Stiite.s lUiir.shiil. The propertv there lU'sci'ihed coii- •'• si.sts ot" GS") t'ur-seiil skins, \'2 ])U]) skins, 1 luiir-senl skin, 1 viiwl. inventoried l)y error, 4 canoes, 4 jiiitl's, 2 speMrs. i;{ hill's of tlonr, 2 boxes of l)r('iid, etc. 'I'he other artich's named are either of no vahie or l)elon<^ properly to tlie ship. li.. 5K4, 53. j)ur])o.se of supplyinji' liie crew of the ('(trohiia on their trip to San Francisc(t, where they were sent at tile expense of the Tniteil State.-;. David litissell, a witness calh'd on hehalf of the claimants, stated the amount of provisions that were line taken aboard the .S7. I'aitl. The value of the articles is inconsidera1)le. 'v\ I 1,,.: t..4...i 1 1. 1. .. ii. - li.. nvi neeii cMs<-usseu ar lenmn ui anorner pan oi tins Ar;iument. The amount charu'eil for the four canoes and outfit '"'"is exoi'ltitant. Captain Warren testified that 820 was the cost of the canoe on the Sai/wanl. In the sched- TlIK CAKOMiNA, 339 liles pi't.'pJirtMl l»y tlic owner of tlic Aihi, the cliar^ie is i{., vjoi], n,,,, iiiii(li.', 3 ciiiioi's, ^4(1; In-iiiM- soiuc'wiiiif over ^^If) oiicli. '-■ The testiiiioiiy of otiier witnesses in the Uecord sliows beyond (piestion tliiit the viihies phiced npon these cniioes hy .Mnnsie w;is tictitious. -lohn (Jotsfonl testitieil tliiit one of the ciinoes was lion^i'ht for him; that he was tliere when it was pur- chased; that "I liad the hiri^cst, and 1 snppose con-U.. ■^''<- lino sick'red a littU- the hest." -'' (), How inucli (lid it cost.' A. Eleven dollais, I believe; thai is wiiat 1 umlerstood tlie price that was jtaid for liei'. lie further festilied tiiat he had knowledf>'e of tiie vahie of canoes, and that these canoes which he saw aboard tlie ('(iialriKi, and one of which he used as a hunter, were worth between ><1() and ^^If) each. The K.. :^"">. liii« price chariicd in tiie schedule is xi'i'2 each. ''"' The item "one boat, >^1()()" is a chai'iic inaih- for a boat which, accor(linj>' to the testimony, was lasf before tlie vessel was seized. J ohn ( 'otsford, who was on the^^v 38H, line vesst'I when seize(|, said: '• 1 l)elie\(' that the Itoat was lost on the way up." The captain of tlie ('iiri)lcii<( wrote M letter at Tualaska in which he stated: •■Tliir- l^-J"'!. liiu- teen -ed to the Tli(ini/'ni. Iiispectin;^- Ij^; ','''^si;'' the inventory of the 'J'/ionitaii, it will \)v. discovered that although she carried four boats, onh" three were ^';«'!"';''* "", 1 rill 1 • 1 1 1 1 . ' ■ 1 ■,•, l)ell!lU 111 inventoried. J lie claim made on lielialt ot the 1 lion/- (ireat luit- hii is for four boats. Hm'.i,^.^'*"' The claim "Cash, Ou-ilvie, >^6. f'oiuidation whatever. ^Mnnsie testified that upon the i'o| j-Aiiiili vessel leaving- in May ()^')in) "for inci- its,i>iig« lii. dental expenses and a'7.")(), at all events, for his services ? A. There might hiive been a condition. (i>. Was there? We (hni't want iuiy statement its to what might be, but what is. A. 1 won't state positively whether I agreed to pay him; positively whether the claims were iiiiid or were not psiid, but I riither think there was iiii understanding that it' they were notpiiid 1 would not have to jiiiy him 'e of Willoujihliv Chirk "Chiiroes lit Sitkii, So()((," Aliinsie testified' thiit he rejiiirded the chiiriic iis exce.ssive, iind refused to jiiiy it: hut tliiit Cliirk seized some skins of his in Sitkii and rather tluin have a huvsuit regiirding the chiim, THK CAKOLENA. 341 he paid the imioiiiit. 'I'liis sfi/jiiv ot" skins Wiis iniidc scvcnil yciirs iit'tcr iSSd, iuul lu'CiUisc Mr. .Miiiisic wns williiiji' t(i allow Clark tt» scciirt' tVdiii him an cxdi-lti- taiit sum tlic ( lovcriimi'iit ttf tlic riiitcd Statt-s is nut lialtlc to repay that cxorltitaiit iimoimt, cxiiciidcd on account of his own ncjilijicncc in not pi'otcctinji' his illtlTC'StS. Tlui item >^3i')'2 tor insurance covers the char>\f)2" is for expenses in connection with this claim ajiainst the (Jovernment of the I'nited States, and can not he allowed. The item "Time and personal expenses of owner, 82.')(>," is absolutely without testimony showinji' anv time or money expended in connection with this claim. In any event, the I'nited States is not liable for the time of the claimant used in the endeavor to secure from this Hi<4'h Commission an award. 'I'he item "Expenses remainder of crcAV, sv^// >>5(>," is without any testimony to support it. The item ".SV?// one-lialf slop chest, >^l(l()," is not taken from the Record. The property aboard the schooner was inventoried by the United States otHcers, and the onlv other propert\' removed from the vessel was that ])Ut aboard the .S7. 'I'aiil. The claim for "estimated value of provisions and ammunition which would have been left atter a full voyajji'e, sai/ N2(tO," is covered by the value of the property inventoried by the otHcers of the cutter and the proijert}' [)ut aboard the .S7. J'aid. IMAGE EVALUATION TEST TARGET (MT-3) k A {<■ ^^ 1.0 I.I 11.25 m lU lU 140 HiotogTBphic .Sciences Corporation 33 WiST MAIN STMIT WnSTIR.N.Y. M5M (716) 172-4503 i 342 THE CAROLENA. A |H>rti()n ot" the .small items foUowinj;" in the selied- iih' heloii;^ jM-operly to tlie ship. The item, "Kstimated value of articles that were douhtless on hoard vessel, hut which can not now he specially mentioned, say n-joo," is with«)Ut founda- tion. The othcers of tiie revenue cutter specifically men- tioned the property taken from the CaniliHa, with th exceptitin of the property taken al)oaril the .S7. /'aid. The I 'iiited States seized and retained tiie .seal skins. 'I'heir value is the market price ruiini,'»UO each, >*4,."»(H>," is without foundation, in fact; and itsconsnlcnition is heyond the jurisdiction ot tins Ili^li Commission. The claims are personal claims, and are not indmled in the (Convention. The items "for illegal arrest, detention, imnrison- meiit. and other liardslnp o .f .1; mu's Ooil vie, master of ('(iri)liitii" and of ".lames Hlake, mate it( ('(iii)lriiti" ^4,(iU0 each, are discussed at another place in this Arjiumeiit, to;;ether with all ])ersonal claims. ( 'ap- R.,."iO().lim> 1. tain <)"ilvie, however, died hv his own hand, and in Ins cas«' u.. no. Altli tl OUJ. lere was no trial. •Ji the claimants have not a.sked this lli'>h (Jommission to award "^(^OOO, claimed as the total expense of outlittiiii;' the Cinolcini in Heriii. Were you a Joint purchaser with Mr. rnpihart? A. I invested money with Captain Uniuliart. Q. In the puntiiaae oCthe shipt A. In tlie pureliase ofthe sliip. Q. About wliat year was that? A. That was in 1884. if. To wiiat extent did you furnish money in the purchase of the ship? A. Five hundreistere«l in the name of Captain Unpihart, and that he had an ajin'ement from him Linv lo. statin* A. lie so .stated. i), Aiul that waH the sale to .Mr. .Muii.sie? A. So far as 1 can understand — as I uiiderstoud it at the time. .Miiiisic tcstitlt'il: K., s7, lini' X. (f. III |,s,s."» did yon enter into negotiations for the ]mrcha.so of any jtart of the i'tiroleiiK f A. Yes; 21 sliares. ''"""-"-' . When you were buying the (uie-third and Mathesoii anotiier ontvtiiird from Captain l'ri|uhart, was there any valuation put on the vessel at that timef A. Yes: aliout •-.i.SOO. if. NYeie you to pay I'ninhart at that rate? .V. \ Cs; at that rate. if. How did you jiay foi' that vessel then? Did you pay all that amount of money in cash ? A. No; I did not. *}. IH<1 you pay a part of it in cash? A. I paid i>art easli. t}. .\nd the rest was jtaid how? -V. In two promissory notes. (}. Have yon those pronussory notes in your possession now ? A. Ni>; 1 have not. '''li.^ri.'xo ''"' '•'" "'•''^"••' '"■""> l>"'iii, tor "Jl slijircs, or "*''•'■ oiic-tliiril (d tlu' CiiiiihiKi, is in evidence. TIm' coiisiilenition expressed in the iiill ot sale is ••>>()(i7 (said eoiisiileration money l»ein<^' vjdiie ol' one- tliinl interest)." K..H7,Iiiio;tt>. if, Wjis Mathesoii buying on the same arrangement f A. Yes; on the same rate. Tile hill ot' Side tVoni I hiuald Ininliart to Henry Matlieson. wlio, iit tile time of the piirelnise ot" 21 sliiires 1)\ William .Miinsie, also purcliased 21 shares, or oiie-third of the vessel, t'roin rn|idiart and Ilickey Till; ("AUOLENA. 345 )tl it at the possi'ssioii ■|((; \'.\, No. ti. >(i(17.'" Williiini Mnnsic |»nrrliiisf»| the rcniiiininy- onc-tliird o)' the CiiiiilciKi o\\ tlu' 4tli of Fcltrnnrv, I HS.'i. 'I'liislf.. xs, lino hill <>t sale is also in evidence, ami tlie mnsideration tlu n in expi'essed is "the snni of >i(i(;7." The a;:';ire^ate sum, as stated in the hills ot' sale, which \vas|»ailiiiii\}\- Munsieand .Mathe- soii was >«"J.i|,Ot»(» for his half of the r(Oo/r//f/ wlu'ii she was piu'cliased from him and ('attain I r(|ii- hart Ity William Munsie. Ihit .Mniisie states that each time, in addition to |iayin;i' >^iU>l, expicssed in the iiill ot sale as tile consideration, lie j>a\<' pioniissor\ notes or additional cash for the italance of the pinchase pfice, and that the price paid was alwa\ s at the late of s:{,SUU for the entire ship. Inasnnich as I'atiick Mickey testitieil that the ship cost him and Inpdiart aiioiit >^J,(in(), ami that slm was sold '.or N-J.lKHt; that lie ne\cr received Init > i> »• Accordin^ily, on the 19th of .Iniie, iSH't, William .Munsie was the owner of the ('atiilciiii. lie had paid, accordinji' to the itills of sale, >;2,001 for the ship. The re;ii.stry of the Ctirolnui disclo.ses that in Feb- n s 44 I k! ■; I?.. H!t. 4;i. 346 TIIK t-AKOLENA. nmrv. l)^s,"», wIumi .Munsic |Mirrlia! was till- owner of two-tliirils of tlu- ('urnlniii, and \\v liail }iaii| tlii'ii'for. arroi'ilin;:' to tlic i-onsiilcratioii I'Xjin'sscd in tilt' ItiJls of sail-, tin- sum of ><1. .'534. Muiisic stati'il that 111- Imrrowi'il n^imi tVom Hi'i'liti-l at this tinif. This was to avoid thi' ronrhisioii. which the instru- ment itself would siij.'-jiest. that he had niort^a^ied to Herlitel oiie-thinl of the Vessel for^^lil!?, exactly what he had paid for it. accordiiiM- to the hill of sale. liiii' {). Wliiit I want to m't at is tliis : Tlie coiisiiU'ratioii in that inortj^ap* is st:it«>«i at ^iWu; was fUti? tbc amount you artuail.v hoi'iowi'il, or wa.s it inori'f A. I l»oriowt'il altont J!<.">IMI. »,>. Tlu'ii' si'i'nis to \w till' same ainoiint .stated in all tlieae ilocnincnts. For some rca.son or iiiiotlier it was put in liero at ijiiSliT. hut that was not tlie real transai-tion ? .\. I tiiiniv the amount was put in to cover interest. I wonlii not lie positive, hut tiiat is about the reeolleetioii 1 have of it. (j. Mill you settle that inoit|;a^enp in the following .liuie! A. When I hon^iht ^lathesim out iiiflune I borroweil some more money, eam-eleil that mort};a);e. ami };ave one lor * I .'! shares of the \esse]. and the coiisider.ition expressed i> ><1. <•<»>. It appears, then, that on the 'Jlst dav of .lanuar\. 18s."», Munsie purchased one-third of the hoat. and Feliruarv 4 purchased another third. The total sinn paid was ^'l.y.'M. as ex|n-essed in the liills of sale. At the time of purchasing:- the second interest in the lioat. he executed a mort;;a^e to Andrew .1. Mechtel on one-half the interest that he held in the lioat, viz. on one-third, for the sum of >>(i(!7, as stated in the mort;;a;;e. .Munsie says that onl\ ><.'i(K» was actu- all\ Itorrowed. and that the >il«!7 was to cover inter- i:x. No. - H. ci. Kxs., p, THE CAROLENA. 847 est. 'I'lic m(>rt;iii •;•(', liowcvcr, l»v its ttTiiis ditl not hciir iiitcrcsf. The fiict is tliiit \Villiiiiu Mimsic cmm- vt'M'fl, liv ihort^iiiji'c Itill ot sjilc, oiK'-liiilt <>t his inter- est in tlic Ctiinhiia to Amlrew .1. Heclit*'!, mid niiidc nsi' of ii inort}iii;i(' iK'cansc Hcclitel wjis iin Aincrifjin citizen and could not liave liis interest in the lioat rejiistered in his name. .Miinsie ac(|nired t'roni ^iatiieson, hy l>ill "*^"'*'' ' J! xii^ifiit*!,' dated .Inne lit, 1SS6. the renriiiiinji' one-third interest p. .-■. in the ('(imliiin, and on tlie same »hty canceled the mortj^ajic tor >*il.(MMl, whicli did not iiear inten-st. .Munsie was, at the time ot the execution of this mor1^a;.!'e, the registered owner of the entire \ essel. and he couvcNcd \V1 shares of the ('(iiolriin, or one- half of tile vessel, to IJechtel l»y mortjiajic iiill of sale, for the reason that Hechtel could not re;:ist<'r his interest in his own name. These transactions, if .Munsie paid s3,s(»(> for that hoat. are alisolutt-ly unex|»laiiiaiile. If .Mr. Ilickey received lint sl.ouo fur his half of the hoat wlu'ii Mr. Munsie |)nrcliased it. Munsie paid hut s-j.(iO(» for the hoat; and that l>ein<;' the fact, the liills of sah-. anil the niort^iajics t<» Uechtel indit-au' onlinary trans- actions. Hut if Munsie paifl, as he swore, >^;$.S(»(» for the hoat, the considerations expn's.st-d in the iiills of sale an; not explaini.l)le. Why the exact amount of >«(i{,HOO is false, ana^-es, and were not <;iven i- 348 THE CAHOI.ENA. to H(>(-)itcl ill urtlcr to scriin* his oiio-iiiilt' o\viicrslii|), is not i'iititl«Ml to ••rcili'iu-f. TIm' mort-tliinl tlif slii|»: and the iiiort;i-ii<>°f of .liiii iss; I. wlioii .MiiiisM- wiis the i-«*, when lie owiu-il tin- ciitin' sliip. slioiilil niortfiiiffc oiilv liiilt ot' it, is iiii*-\|tliiiii<'<), iinii iH'iii^' iiiu-xpliiincti is conclnsivc tliiit Itcclitcl owium! first iM tlx-n .'('_' slian-s. Exh. !i,(i. II. 'I'lic Miortoiijif of .lime 111 liciirs (»ii its tac*' con- i.Ex'iiibii", viiifin^' (•\iii»'nc»' ot' tin- tact that it was not ;>iv»'n to I' •"•• scciirt' the |iaviii<-nt ot' any sum ot' mont'\ whatever. The words "together with interest thereon at the rate ot " are strirkeii out. and the word.x "without interest" iii.serted: tiie words "per eeiit |»er annum on the da\ ot" strirken out and "on demand" inserted: the words i;xliii)it !•. "next and serondly. that it' tile said prineipal sum is heirs, exeeiitors, iiiie as tile same not pan I oil the salt I . will, diirinu' siieli t or an\ part then-nt remain unpaid, pav to the said interest on the whole or siu'h pari thereof ai- ma\ tor the time lu-iii;:- remain unpaid, at the rate of per eeiit |ier annum, l»\ eipial haif-\ earlv pay ments on the da\' of ami IV o f m e\ erv year, are stricken out. and the words "j;iui«i. ainmunitioii. small arms" are stricken 'h exteiidili";' over a jteriod of nearly five vears, and of iieiii;:' written on the same forms, tin tln-ir fac«' tliev hear evidence of THK CARKI.KNA. 349 lM'iii;r iill pn'imn'd nt tlic snnif tiiuc. iMiiiisic t<-stiti*'(l that sitiiif of tlifin Wen- diipliciitt-s, mihI tliiit Ik* riTcivt'd tlu'iM t'nmi IJccIitrl rcrt'iitlv. "Wlicii I Wiis ;i:jitli('riii;i- ii|i my piipcrs I iiskcd .>li\ Hcclitcl to ;;iv»' i(.,!M),iiiieii. me ii coiiv Mt' tlu' n'ccipts." |{«'clit<'l tt'stilifil that .Miiiisir lian the coast in the s|»rin, line (^, Tlu'.v wfiil up there lirst iiixl before the eitnoeH were put on Itoiu'tl, itiid went seiilin;: in tiiu Mpring, in Feliruiiry, on the i-iiiiHtf A. Yes. If. How many Indiana went on that trip, the llrnt trip, wlien tliey went sealing; on tiie eouHt' A. 'i'liat I tlon't iinow. I tliinic it was si\ or «Mgiit lanoeM tlie Ctiniliiiti carrieil. K.,^ur., lino Ainlrcw .1. Mcclitcl wiis rnlU-A iis n witness on tin- |iiirt ')! tlic rliiiiiiiiiits iiinl tcstilicii that lit- Innl no in- fcCfst ill tlic Citiiih ml ill ISSd cxcclit as liiort;^ji;;c»'. It was i|cV('lo|ic(l on dircrt cxaiMiiiatioii tliat lu- liad si^iiictl as atloriK'V in tart llic ilaini of .lames ( )yii\ic, nia>tfr ot tlic ('nrult na, lor iiaiiia;;t's from the I'liitcil K.. 117. lino no. htatt Tl f uitiifss statfil on tliicct (•xaininatioii; !(.. 117, Inn- {), Anil \(in were on board of her Itefore slie sailed : "•"' A. Yes. sir. Itt-ciit*-! sail! on rross-*-\ainiiiatioii: K., i.'iii, line {j. When yon went on the ship, ilid you p) below J *'• A. N..; I did not. if. Didn't }i;o iielow .' A. I believe I did ^'o in th«- cabin. |ifiii' tlwit lie Uiis in nn Wii\ ruinicclfd with tin- \i»\ iiyt,'. Itri'liK-l tt'still K., li.'>, liiK' <^). Mow lull}; liiivi' yoii li(>i>ii *'iiKii;;eil in tli«> H(>alini; 'xisi- 14. iicss — aliitiit liow KiiiK? A. I taii't say t'xaitly as to a inoutli; uvrr tlireu yt-aiH. If. AlMMit tliri'c Nt-ars, ynii mean ? A. Aliouf tln«'«' ytsMN— l(»ii;;»'r. [{., ll.'>. Iliii' *}. I'l'iiir to IHSt) Iniil yon anytliin^ to do with tliu H(>alin;i -5' ImisIiic.vh.' A. Nr. siv. (,>. Ilatl yon anytliin;; to do witii sliippin^? A, No. sir. <^. hid yon know anytiiin}r ahont sliips np to that tinitt? A. No. sir. Q. Had yon owned any ship Itelorv tliiMi .' A. No. sir. if. Had yeeeiiil»er. 1S8."»: that upon that dav he eonveved {(J. U.),( !. y 14'kxs.,p! f^ixtccn shares to Frederick ('ariie, jr., his partner in 274. hnsiiiess, and on the same two shares, and on the saiiu' day William .Miinsie and Frederick < "arne, jr., niortfiaocd sixteen shares to Aii(h'ew .F. liechtel, tor 81,107, and sixteen shares to THE CAKOLENA. 358 M. N. Ilcrlitil, Aiidrfw .1. Hcclitcl's Itrotlicr, for !^l.I(»7. .Mimsic hiiil tcstilifd in rlif Ciiioliiiii niwc tlint lie if., uu, lii |iuiTliiis»'(| till' I'iithliiiilir iit lliilit'iix in tlic yciir ls,s:», ^'' lit 11 CMst ot'jilMint '^4, ."•(»», "or wirliin ii tew' i>ein Ihl- nn tlie rej;ister woidd, |»er- Imps, not l»e vieweil in the liulit thilt he woidd iiilVf them, :nid idthoui,!'' not testit'yin;;' on direct cxiiniiiiii- tion in the I'lilliJ' ' /■ chinn tinn liechel li;id iin\- in- terest in the /''^///////(A/, he siiid, on cross-exmniiiiition, i; ,.,., ,j, tlijit .Mr. I5ee]it(d, idthnii-h he luid no interest in the -'i. I'tiflijii/ili f, wiis inten .>ted in the voyji^c nml veiitin'e in the yeiir iSSil. lie idso stilted tliMt Herlifel ii:i. Miinsie hiid t«'stilied, nion'oxcr, on direct exiiminii- tion, thilt the totiii cost of the I'litli/imlrr wiis n l,lj,s. The snin of the two niort<2,(HK) wjis pjiid tortile vessel when iMiiiisie piindiiised her,<'ontriidicted him iind jiroved conclusively thiit the B 8 4'> 354 THE CAROLENA. Exli M, S. CI. Kxbs. •! Kxh. 15, S. CI. Kxlig. 277. iiiortjiiijrp to li»'('litt'l on tlic ('uiulviui was one-liiilf its valiu'. Tilt' (U'tails ot' tlu' ('ross-i'xaiiiiiiation of Muiisie, relative to tlic transaction with Hcclit*'! conccrninii' the I'dthjiiiihf, and whicli are t'onnd in iiis cross- examination, lU'conl. lo(i;$ to ir»(!Il, estal>lisli the con- viction that Hechtcl was a half owner ot'the /'(ifli/iiidn; as he was a half owner of the ('(inilma. In the Ariiiniient on l»ehalf of ia«;es"' and that im|iression was iicxcr removed and a readinji' of the K'ecord docs not now remove it. In the schedule a|i|)ended to the claim of the Ciiidlriiii in the Ihitisii Ar;^iniieiit the claim is made "Net value of apiiroximate catch i'or 1SS7 was TIIK CAUOLENA. 866 8"», ()(>(>." No cN idciH'c is cited to support tli»s cliiiiii, jnid iiiiisiiHU'li iis ii decree ot" coiideinimtioii jiiid t'or- feitiire was entered and tlie vessel never returned to lier owners, and tlieretorea total loss, no l»asis lor this claim exists. The claim was made at the hearin;^' that l>v rea.son ot" the letter of Xovemher 1. ISSS, irom the I'nited "■• 105. States marshal tor the IMstrict of Alaska to ".Munsie iV: Co.," iuformiiij:' them an order iiad heeii entered releas- inji' the ('(iihIiihi to her owner, the case hecame one of detention and partial loss, rather than total loss. The reply of Sir L. S. Sackville-West 1;. .Mr. l»avard, '>'••'"'• the I'nited States Secretar\ of State, acknowlediiini;" th<' receipt of a note dated the 8d of Fel)ruar\. 1SS7, contained the information that oi'ders had Iteen issued direcliuL;' the discontimiance of all proceed in i;s and the discliaru'e of the \cssels seized in ISSli is in the IJecord. This letter Itears date i'"eliruar\ I, 1SS7. ( >n the iMJth day of July, ISST, the deput\ min- ister of lislieries tor the homiuioii of Canada wrote as lollows to Midisie (( ('it.: Dkau Siks: I liiivc to a('kiio\vlt'(l<;o tlio receipt of your |{., ;i(i7. letter of the I'.ltli instant iuldiessed totlie ininister of niiuine ami lislieries. in wliieli yon state -we have nut received a siiif-le wont from the I'nited States Uoverinnent alxMit the release of the vessels,"' reten'iii|>', of conr.se, to those seized lust season. (Ml the L'd nf Ai>ril last I eoinmnnicated to yon the deci sion of the President of the I ailed. States, in .so far as releasinjj the ves.sels, etc.. which letter yon aeknowledfjed. I[a\(^ yon made any apidication for the sn? remler of the vessels, or have yon reascai to suppose the liiited Stales • (io\ei'ninent would coinmnnicale the action to yon Ity other means than the ordinary otiicial channel? 'i'hisdopartnient lost no time in coniinnnieatin^ the deci- sion in qiu'stion to you, itilli tliv r.iiiirliitiDii that ijini iroiihl - possessiiui »»tthe vessel, and treated her as a total loss. If, at this time, Munsie had taken steps to reelaini his property there iiii<;ht he some basis f(»r a elaim of detention; but solelv because at a much later time, and after the vessels had l)ecome worth- less, the United States formally offered t(» return the property for diplomatic reasons, the fact that the owner liimself had abandoned the vessel and treated her as a total l(»ss is not removed. Tlic fc.ssci «•f^s• ti'Hilircil fti fill' owner hi Jjtril, JW/\ ami flic ti'iiilir njiif^vd. The subsecpient tender on the part of the I'nited States has no Ijearing- upon the na- ture of the claim, because j)rior thereto the vessel had been considered and treated as a total loss by her owners. the thornton. Claim No. 2. 'I'lit' Tlionitdii was a .scliooiuT of 22.30 iv<;istirt'(l tons, witli auxiliary stoaiii power of ssinall capacity. Ill I'Vliriiary, 1886, slic was cliartcrcfl hy Jost'|')li Hoscowit/, and cni|)loyt'(l in scaliii;^' under the direc- tion of .lames 1). Warren, tliev lieiiiii' e([Uallv inter- ested in the profits of her voxaye. On May .'Jl the vessel left the west coast of \'an- couver Island for Herinji' Sea, which she entered July 2 in tow of the DdI^iIiiii. She coinnienced seal- ing- on the r»tli and continued operations until she was seized liy the Tiiited States revenue steamer Conrlit, at (! o'clock p. 111., August 1. at which time she had on l)oard -U).'5 seal skins. ( )n Auiiust 2 she was towt'cl to I'nalaska, where she was sul)se(|uentlv ilisnian- tled and heai-hed. ( )ii Au;:ust 2S she was liheled by the Tnited States attoriiev in the district court of Alaska, and a demurrer and answer were iiled Sep- temlier 20 on hehalf of dames I ). Warren as owner. ( )n October 4 a decree of condemnation, forfeiture, and .sale of the vessel, her tackle, apparel, and carji'o was entered. A motit>ii was made on the .same day by the jiroctors for the claimant asking- to have the decree set aside, which lieinji' overruled, a notice of appeal was Hied on behalf of the claimant. The appeal was never perfected and no proceed- inji's were taken to arrest the sale of the propertx'. In the autumn of 1SH(!, and presiimablv a short time after Warren received notice of the decree of forfeiture, he purchasetl the schooner Mtiiji 'I'di/lar to H., OUT, line 10; 1613, line 10. K., 10X7, lino 12. K'., um, line lit. App. 11. 11.92, hue 32. A lip. II. p. 9."), line. 32. K., U)s.-., lino .-.4. App. H, p. OS linr 13. App. li. ji. lis line 25. App. U. ils: line a'J. App. H. p.f<9 line 12. App. 1!, p. !M), line 1. App. II, p. 90, line 41. 358 THK THOUNTON. R., 1150, 61'. line R.. 1158, 14. R., 11«1. 2G. i;. 1177, Hi. IIIK A )) 1. . 86-H7. .\|.. 1!. 85, line 1." Ur. Ar.'., 1(12. K., 1O80, (jO. K„ 1091, 3. lino lino tiikc tlu- i»l!it'i' «»t' tilt' vessel seiyA'il. Mis testimony ii|Hm tlu' sul»ject is: *}. After tlie seizure of the Thontton did you provide a vessel to take her phiee in the Meet? A. Ves. <»>. \\'liat was the one J .\. Tlie M. Wlieu did vou buy the Miiiy Tai/lor.' A. In tiie fallonssii. «»>. What did vou use tlie Mun/ Tm/lor for after vou bought her ? A. Sealiiif;. (,>. Where' .V. On tiie coast anil in r.erinj; Sea. <}. l''or what sealinjr sea.son ? A. I,SS7. Tile |ilirclias(' (d' tills \('sst'l for tlir sale nhjcct itf rrjildriiiil /lie Tlinnitiili, lltT elll|ilo\lll»'llt tor tlu- .Silllll' |»iiriH)scs ,is till' seized schooner, the iiliinHloinnoiit of tlie a|i|M-a] to tlie I'liiteil States Supreiiie Court, ami tile fiitr\ of Kehniarx' 'JS. Is.sj, in Warren's joi'nial rliat llie \ cssels were to he sold, estahllsh concliisnch- tliat the >eliooner liecame a total loss to her o\\ nei' and was so treateil li\ him. At the time that the vessel was anelnu'ecl in the harltor ni' L'nalaska. an invcntorx' was made hy an ollicer ot the Cuririii, which was otl'ered in evidence l>y .). ciaim No. l'. There also a|)|tears in thes.ame Kxiiiliit .1 list of the arm> and ammunition fonnd on hoard the schooner at the time of seizure. The arti- tdes coiitaineil in the invcntorv' ;ind in the list were delivered to tin- I'nittMl Stales marshal at Sitka, and were tiie only property seized. In the scliednle wliicji a]ipears in the opposinji' Arj^n- ment settin;^' forth in detail the damages i . .me(l for the Tliiiiiitoii, there is inelndeil an item for "Premium (d" insurance paid, ^4U»." b'our jioliciesid' insuiaiiee upon the schooner 'l'li(initiiin\u>\ her carji'o were otiered in evidence l»y the claimant. Oi' tlie.se, one upon THE THORNTON. 359 the carffo cxitiivd »tii ,Iulv 3, ISHC. Two otliiTs. one "•• lO^."*. ""« ii|)tiiitlu- liiill ami aiiotluT ui»oii tlu' (•ar«;h the ri.sk liaviuL;- ceased on the 2nd AuL;ust. and the itolic\- which ex|iired on the ;?rd duly, tiie owner had received tile full henefit of his expenditure. It is therefore claimed l>y the I'nited States that no award should he made the claimant under this item. The claim for "value of articles in inventory not jiroperK' lieloiijiinu- to the >lii|t. on lioanl at the time of seizure." is Itased ncconlini;' to the marginal refer- ence in the Uritisli .Vriiument. upon a schedule I'lv- "vj^""'' '""' pared t'rom inveiitorit's appearini;' in the lo^;- of the schooner. .\s the value set opjiosite these articles is • "iven l)v .lames It. Warren, who was not shown to have had knowleclcie of their condition at the tune ot seizure, it is to he |»resunu'd that they are Itased upon what such artu-les won Idl ia\c cost wlieu new, lie.--n- iiient on Itclialf ot" (Ircat Mritain, it appcariiifi' l>v an examination ot tlu' niar;jinal n'tcrcnccs to the !Ii'Cov|) chest, foii) ^I2h" the t'ono\vinj>' in the examination ot' .1. I). Warren: H., oil, liiif . Tlierc is a claim in tliat sdiedule, innrked No, 17, for 59. ideiitilicatioii, loidry f;oiiils. docs that refer to the slop chest? A, That wouhl be the slop chest. i). About liow much was on the Thortitoiit A. I supiiose about >(>— i-L'tlOor Sl'.'iO. Q. Tliis is J?!!*: wouhl there lie an error in that statement? A. 77/c mtit 111(11/ liiirr (jot tlwir supplivs beforv tliri/ Jcfl hi tliiit ranc. (). At any rate you remember there was a .sh)p chest? A. Ves; they had a slop chest on board. i}. An\ tiie items in the schedah- referred to. are personal chiims, wliicli. not haviiiii' lieen presented to the Trilinnal of Arhi- tratioii at I'aris. and not liavinj:' l)een included in the "ailditional claims" set out in the preamble of, and appendix to, the ("onventioii of Kehrnarv S, 18!tfi, cannot he allowed l)y this IIij:h ( 'ommission, even if tliere was sutlicient evidence to establish such claims, which the I'nited States insi.st there is not. THE THORNTON. 361 In rct'crt'iicc totlic it<'iii tnr lc<:iil cxin'iiscs iit Sitka, tlic Iffcunl (liscliisfs ; *}. Von cluiiKC «"»(M» exjiensus at Sitka in (•((iiiiectioii with H., hit, liim tlie sciziin- of the Tlmnitini. W'linl does tliat mean f '•'■ A. Lejjai cxpeiisi's. (}. Legal »'X|]»'iis«'8 at Sitka in <(>iiii«'pears that they had arranged to appeal these eases, and he drew on me for ••'."»(H». (}. That is the reason that you ehaige tiiat. As a nnitter of fact, you have not paid it '. A. I did not pay it. //« Iiks hirn jiniil sumr minicji tliiit ire ihonijlil irtis vitjht. I told him I had put the elaim in, and it it was allowetl lie would get it. ii. Who was that :' A. Clark. 1 forget the name. The citsc ot' tilt' Tlioniliii/ w.-is nut ii|»]iciilc(l. iin. and answer tn the liltel. Fur these services lu- ap- '*'*■ ]M'ars to have l»een paid a reasuiialde sum, l)ut tin- actual amuunt is nut in evidence. The I'liited States therefure claim that the uwner did nut liecunu' uhli- oated tu pay any further stun, and as the amuinit j»aid is nut established it can nut l»e allowed. The item "fur travelinji, hotel, and uther necessary expenses," in cunnectiun with the said seizure, a claim 1}^ ^1.(10(1 is stated 1»\ (.'aittain Warren t(» have heeii''". "n, "/"^/ " /"'//•' ■'"uii." lie stated that in cumiectiun with this he nnnle two trips tu ( (ttawa, une tu Sitka, and that une uf his trips tu Ottawa was extendeil tu Washinotuu in 1S!I(). The Kecurd further discl»»ses: i). .\nd vou eharged for traveling expenses SJI.OOO in each R. !M7, line case? ■ "- A. I do not remember what it is in the other cases. Q. Hut you went on business of all the seizures of 1887 together with that of the Tlionitmi in KS.Sd? A. Yes. i-i. You charge !?l,(Mio iu the Tlidnilon case. You do not mean to say, (lo yon, ('ai»tain Warren, that you expeiuled .'*l.(Mi(> in traveling for the Thoriitmi in l,s,S(!? lini '^\ '!,': II S- -4)! m 362 THE THoKNTON. B., 917, 11. Ante, ]i. Aute, i>. A. No; I have not stated that I s|M^1 '»(), the claim here made is not oidy excessive and exorlti- tant, l»ut can not Im- h-yally n-covered against the I'liited States, as any such expense was incurred in the preparation of the chum for presentation to the <'overnm«'nt at ( )ttawa. The item "Fee to counsel, and for other lejial ex- penses in connection with the preparation of the claim," is founded upon no evidence of the lial)ility of the claimant to pav su«'h sum, or of the services which were performed for which tlu' char^iv is made, it is then'fore claimed that then- is no itasis on which an award can he made for this item. The charji-es in the schedule of ^G,\)'tX for " bal- ance of catch," >;'.IOO for coastinji' purpo.ses for three months,and of >»."».()( 10 for "estimated coast and Merinji' Sea catches for the year 1SH7 (net value of)" are for prospective profits, and can not he allowetl in any ev«'nt, the vessel havin»7,(HK>, expenses and hardships of crew, 13 men at ^^oOO each. >*6,."j(Ml," and the personal claims of (Juttorm.sen and Harry Norman, have heen considered elsewhere. The damajies sustained hy the claimant hy reason of the seizure of the '/'lionitoH were the value of the vessel in the condition she was when seized, on the ;t(r.. HI!». THK TIloliNTUN. iiiiirkct !it \'ictunii at that fiiiu', tlu- market value of inic-halt' of tlic artick's not properly iiicliided as a part of tlie vessel itself in the coiulitiou ami at the time when thev were taken from tlu- schooner, ami oiie- jialf of 4(>;{ seal skins at the jiriee ruling- in the market at N'ictoria at the time when the vessel would iu the natural eourse (»f events have tlischargeil her ear|>. it. Ii>l A|i|i. n, (I liiii' 'JO. THE ONWARD. Cl-AIM No. .'{. riit' Onirtifil \\i\- \\ sflKMiiicr nt ,'{."», 20 rc^ii.^tcrcil tons. < 'liiirlfs S|)riii;i'. ii sulijcct of ( licitt liritiiiii, iiiid AlcxMiulcr .Mcl.ciiii, it citizen of tlic riiitcil Staffs, wtTf |»!irtmM'.s uiiilcr flu- linn nnnic of ( '. S|irin;i' *V: ("o.,iilitl t'(|il!il owiicisof tlic vcssrl nt flu- time of lu-r sii/.urc. Ill 1SS6, iift«'r ii .xcjiliiiji' 'i'i|» ill tlic s|)riii;:-, slic fnnis- K..i<«:i,lii 1'.') A|i|>. II, .■>li liiii- .'>!). K., X". ill) W. R.. t!l. iii> 10. A).).. Ii. lil Iinr Id. API". II. or. liiii' I'd. Aiiii. It.]! •''", Iiiii' III. Ai.|>. Il.p IIX lillr .'III l> 71, line L'l A pp. II,]!. "I liiii' III. THE ONWAUU. (Ml tlic.HOfliiliiy ..»' htTciiilu'r, issd.Cliiiilcs S|.nii;i- "•.•,/'*' mill Alcxiiinlcr Mfl^cnii ciitcn-il into iiii iiyn't-mt'iit .\|T|i. h. dissnlviii;;' their pfirtiicrsliip. In tlic t'lirly psirt of '""'- iSSf}, ( '.S|)nn;>' iV: < 'i>. mwiiciI tlin-c vessels, tlie Ftinuir- ih; the Kiitr, iind tiie (hiininf. In the !i;iTeeineiit t'nr • lissolution Viihiiitioiis were |iliieeil ii|Min the i'unnuitr iiml Kiilf, lint IK) nthiiifiiiii irns ft/m 'il ii/inn tlir Oininrtl. As MeLeiin (li'.. «'-' hiisiness, Spring pnrchiiseil his sliiire of the pfirt- 1-, .-,112 nershi|i property tor iiiioiit >il,lU(l, Imf the (hnninl •"'■ il'fls iiiit iiirhiifnl III Hir liinis/ri; wliieli Wonid li;i\e lieell done liiid the owners nntieipfited lier lecoverv. A liJilt' interest in the clniiii ji^iiinst the I'liited Stiites tor tlu^ si'i/.nn' of the Oiiinntl wiis retiiiiied inider thei;., sin !i;^reeineiit liy eiicli piii'tiier. This evidence is eon- •'-'• elusive of the fiiet tliilt the Oiiiraiil wms m totiil loss to her owners, iind wiis so eonsiilered l»\- them. While the schooner Wiis in the hiirltor of I'liiiliiskii nil inxt'iitorv WJis iiiiide Itv 1111 ollieer of tiie Ciiiiriii, ;iivili;i' ii detiiiled stjiteiiielit of the property seizeil and its condition. This inveiitorv wns olVeivd in evi- deiieeoii iiehiilf of theclfiiniitnt.iind appeiirsiis Kxhiltit App' "• No. 32 ((;. M.). (Miiiiii No. .-i. •'"•""• There iilso iippears in the testimony taken during' the proce«'din^s at Sitka a statement of the arms and^i,,, k aiiimnnition delivere(l liv the To/vr/'// to the I'nited "<• -0- States marshal at Sitka. The articles contained in the inveiitorv and in the last statement referreil to are the only property for which the I'nited States is lialile in any event. The artitdes covered in the item "unconsumahle sealinj;' ontHt" an* included in the inventory. I'lider the schedule, which appears in the .Vij.jiiment oil behalf of the claimants, seltiii"' forth in detail the line J'. ■■•-'■ line liiii' liut daiiiam's claimed for the Oiiininl. there is imduded an Till mariiiiial refereiict' uiveii is to a statement of ( 'liarle: item '* Preiiiiuin of insurance |iaid, !^24u.' , K., S(JM, lil;, tiS. 3Hti r- !{., Ni;). u. K., W«. •J2. U.. S74. 5!>. lilK' lllIK liix I'lIK ONWAUl). S|ii'ii>;i, in vvliit-li it ii|i|i«-iirs tliiit li«- paiil i>ri;:'iiitilly tor illsiiriiliff oil tlu' Nt'sscl N'JiKt, iccciviii;;' ii rflmtc of >»2<>. lit' iiofs not sliow wlit'ii this iiisiirjincf wiis I'H't'clcil, nor lit wliiit tiiiic tilt- policy Wiis cniicclfd. It is fitiinifil on tin* |iiii't of tlu- I'niti-il Stntcs tliiit, lis tilt' owners liini rcct'ivftl tin- lit-nt'lit of tlif iiisiir- aiifi' to tilt' tiiiif of sfi/ni-f, iiiiil itn-siiMiiiMy tlif t'lill rt'ltiitf tVoiii tliiit tiint' to tlif fxpinititiii ot tlif polify, tlif\ siistiiiiifil no «2r»'_'," is tilitiiiiifil tVoiii till' fviilfiiff of Sprin}^, in uliit-li lit- siivs tlijit tlif fjiiiofs with tlifir oiittit wiTf worth, In- " wonltl siiy, N2') filch — X'2fi or i^'JS — iinywlifri' in tliiit nfi;;hl»nrlioo(|." I If iilso Ntiitfil tliiit hf hiiil ti lifii on tlif ciinofs tor inlviiiicfs niiiilf, iiml thiit tlu-y wtTf piirtly owiifd 1»\ liini tniil /itdtl -// ''" lii'l'"""- III his cro- Nitiiiiiiiition he tfstitifil: t). Tlif iitlvaiK I' tliiit yon lUiidp t(» tin; Iiitlians, Juiwt'vi'r, is 11 part of tlif iiioiii'y wliicli yoii cliai'^ftl us paid tii lliein, is it not? A. Ill stnni' cases. i), St> it' yiMi ri'ct»vcr lor tlie vahif «)t' tlie i^niioes, so far as yonr lien is coiiccrnt'tl. aiitl the money wliiih you claiincil to pay tlif Indians yon wonltl be recovfrin^t the siiinc ino ley twice in some instuncesf A. In some instances: init in siieli a case as tliat tlie Iiitlians wttnlil be diargcd. (). Wliat tlo ytm mean by that ;' A. When I say the ludiiins, I mean the Indian hunters wtiultl be eliar^etl, that woultl be deiluctetl. and in tither cases it was ii ilirect purchase from the liitlian that owiietl the canoe in tirtler to make the cttmpiement to send out. if. That was in the case where you tlirectly luiichasetl the canoe i A. Yes. (). lloic wain/ iHHocx i\i*l jiitii ijinvllji piirvlmscf A. / sIkihIiI think Hiniie llinr orjhiir. Thf I'nittMl Stiitfs iiisisi tliiit in view ot" this tfs- tiiiionx of Sprin;;-, oiif of tiiv ttwiifis, this fluini should hf coiitiiifd t.i tiif tliifc fiinofs iit'tuidly pnr- fhiisfd. iind thiit thfir Miliif shoiiltl itt- tixt-d iit thf .. THi; ONWAKI). 367 8 that tlie UP litwtT li^i'iirt' ;iiv('ii liy the witness. Tlit; iiidi. -v pnid tlic liiiliiiiis is iiirliiiltMl ill tli** Viiliic ot'tlic sfsil siiiiis. All item ii|»i»c)irs in tlic scIkmIiiIc, "'rwclvc ;iiiiis, at N'if), s;{Ot»." TIm' tcstiiiiMiiy of Spniiy' in n-iiitioii t..";,^""'^- •' this clijiryc sliows tliiit tlicv were l»r«'t'cli-|i>ii(liiiy and iniiz/h'-luadiii;;' slmtjiiins. lie also says nt' tlicni tliatK., stu, liin- *' tlicy were an nld. liiw-^iTadc." mMiii; and that a por- "' tioii (if tliciii were nwiu'd l»y tht- hiiiitfrs, al»oiit six ' ' "'"' or seven Itelon^iny to the owners of the vessel. Tile I'nited States riaiiii that the jiiins whieh were actually the property of the owners of tlie srhooiier are the only ones whirli can lie considered. The item' "( 'ost of defense at Sitka, >*'i(in," is liased on the followiii;.i' testiiiioiiv of Spriiij;': i). Now. were yiiii put t(> any Icnal expL'ii.sc at Sitka, cir i;,, sTii. lim. WHS tluTc a cliar;;*' made ajjainst yon ? ."'i>. A. TlitTe was a cliarKO. (i>. Wliat was tln^ ainuinit of the charge.' .\. «."»(»( I. (,>. I>i. :!(is. :il!i. 'I'lic item ".Muiicy ii ii stiiti-iiu'iil of .loliii .Miii'kc- ticli, till' lUMtc, tiiMt lie liiivc to tile linliiUis ''suiuf- tliiiiii' Ix'twi'cii ten iiiiil tittccn dnlljirs." 'I'lif I'liitfil Stiitcs ilciiy ;iiiy liiiltility tor tliis iiioiit-v loiincd. Tlu' cliMi'j:-!' tor >^\^i'2 \y,\'u\ in coiiiicftioii with |tr('scii- tiitioii ot' cljiiiii ;it ( )ttii\vii, wjis iiicinT(Ml in iiiiikiiij;' tlic (•l;iiiii ii^^iiiiist tlic riiitcd Stiitcs, iuid fiili Hot lu' id- lowed. The item "Hclycirs cliiirj^cs, s|^()()()^" should not Itc trt'iitcil iis (hiMiiiucs snstiiin(M| h\- the chuiiiiUit. lor thf rt'iison thiit it is i-xorhitiint iUid tliiit there is no ieji'id oMiiiiitioii shown Ity the K'ecord on the |tin*t ot the owners to |»iiy the iiuioiint. Tile item " I'ersoiiiil eX|»enses. >;,'{0(l," is .-^o orosslx excessive th;it it deiiiiinds |)iirticiiliir iitteiition. 'I'liere is no evidence thiit ( 'luirles S|»riiii:- h-l't N'ictoriii iit iiiiy time on iiccount ot' these chiims. liis ex|K'nses in coiiiiectioii with them lieiii}^- |iostiij:'e in corres|Hindiii^' "with dilierent iieo|)h' in connection witli the niiitter, l>oth lit Ottiiwii iiud Sitkii — ditVereiit olHciiils ii|> tliere." lie iilso stiitcs tliiit he hiid "heeii to ii j^TCiit fh'iil of tfoiilde." Such ii cliiim sh(.iild not lie consi(h'red. The items "Kstiiiiiited \idiie of jirovisions, iimmii- iiitioii." etc., iind " Kstiniiited vidiie of iiftich's wl'uh were doilhtless on lioiinl tlie vt'.s.sel, l»llt wliicli ciin not i)e s|ieciiicidl\' mentione(l," jire liiised n|)on no exideiice whiitsoev cr. The iiems "\'idiie of vessel." " Kx|ien.M's iind hiird- shi|i of crew." iind the personid cliiims of Monroe, iiiiister. iind .Miirketich, iiiiite. iire fully discussed iit iinother itliice in this .Vriiimu-nt. Tile items " For liidiince of ciitcii for tile reniiiinder of the seii>ioii lSS(!" iind "Net \idile of estiniii'ed coiist iind Heriiiii' Sen ciitciies for the \i't\v 1SS7" iire for |ii'os|ie('tive jirolits, iuid ciin not Ite idlowed in iiny i'\cnt. iis tile N'essei lieciime ii totiil loss to iier owners. THE FAVOURITE. (^LAIM Nt). 4. The FiiniKi'ilr wiis wiinu'd to Iciwc nci'iii;^' Sea 1)\- th(^ United StJitcs ivveiuic ciittiT /liclinnr lliisli, i\t^^i^^'-'-''' ^'"'' about 2 o'clock in the nioniiny on tlic 2(1 diiv of Auji'ust, 1SS(;. 'I'Ik' vessel (lid not ohevtlie wMriiinji', but continued her seidinji' voviijie until the l!)tli diiv of Auj-ust, when the captnin says he had completed R., i;t;u, lin.' his huntinjj'. "*• Oharles Sprinii-. ii subject of (Jreat ih-itain, and Capt. Alexander McLean, a citi/en of the United States of America, were e(|ual owners of the Fiinniriff ^ ,.(„.. ,|„,, at the time of the seizure in 18S(;. The profits of the ' ii. lim> ui. voya<-'e were to be e(pially divided. The i»artnership between Sprinjiand McLean was dissolved in Decem- ber, ISSC, and at that tinu' the two partners took nn ^'j;;!.'oo,'','|"l equal interest in the claim ajiainst the ({o\eriunent of iiii'it'',i">K« the United States. '''-■ The (lovennnent of the United States claims that the owners of this ve.s.sel failed to establish that they had suffered any damaji'e whatever l)v reason oi' the warnin<«- ••■iven by the cutter. Captain ^icLean, who was sailing' the Diroiiritc .,t ''•■..i:""' ''">■ the time of the warninn', testified thiit he did not con- sider that the claim was a le-iiil one, and that he made no claim for dama^ics. The other owner was not aboard the vessel, and no other person i^ave any tes- timony of importance re,25:» seal skins, (ITA beinjr taken after the "" B S 1" ;169 370 THE FAVOURITE. K., loiil.', 50. 1.'.. 13(U I. \i.. 13211, ;j7. :,i I. K., 13*1, lii). R.. i:!;!i, IX. Iv,. Kw:i, u. ■\V!irniii<>', slio siiili'd tor Viotori.i, liuuled her catch, aiitl enjoyed tlic hciu'tits tlicivot". 'Vho iiii. You yourself had never been in lierinji Sea ". A. Xo; not at tliat time. Q. .Vnd yon practically knew notiiing of the clo.se of the season in IteringSca? A. Xo. skins after y./ii were warned .' A. Yes, sir. (). And turned them over to Mr. Spring or your partners here .' A. Yes, sir; and brought them to Victoria and sold them. Cross-examined with reference to tlie voyage of the Fiiraiirifc, this witness testitieil: li'i'- (,). Why did yon leave the sea on 10th August (l.S,sr>)? A. Tlie season was juctty well closed. lino (). When yon left for tiie Itcring Sea in ISSii, as master of the Fitrmirilv, when did you intend to eoine back? THE FAVOURITE. 871 A. 1 iiiteiuk'd to be back liere (Victoria) between the Ist ami lotli of September. Q. Had you any special reason to come back at tbat time? A. Well, 1 used to fit out for tbat time. l)(MliU'tin<>' 11k' tiiiic ('hiisuiikmI in iuiikinriji, tliu Faroinitr, had slic arrived in Victoria on tlu' 1st of St'ptt'ndit'r, would have U'tt lVrin<;' Sea about tlu' Kith ot" Auht. Captain McLean was examined rejiardinji' the timeij., kc, liue that he considereil the sealing- season in Uering- Sea •''•' clo.^ed: Q. What time did you leave the ISering- Sea in the Man/ Ellen * A. I can not exactly say, but jaobably about the -'0th or 25th of August. 1 am not sure. Q. From your experience what would you call the end of the .sealiug season in IJering Sea in the years IS.Sd and 1887! A. About the Mth of A \i;, is citetl in the Argument as showing exactly the loca- (Jrent lirit- tion of the 'best sealing grounds" in the Bering Sea. niii. |i. tiO. liueL'll. li^ 372 THE FAVOUKITE. Kot'i'iTiii;.;' to |»!i' \v;is cxjiiiiiiUMl ri'liitive to tin' jiroiiuds over wliicli tlie Mm// Elliii ciirried on Iier seidiiij;' operations in the year ISSG, this testi- inon\' is found: (i>. Give it to us generallv (the location). A. Hetwoeii .Jt^ .io' amr :)5'' north latitndc. and KiS^ to KiiPSO' west longitude. 1 was always under the impression that tliat was the latitude and longitude wc were hunting in. ("aiitiiin .McLean did not testily that he chan-^cd li IS seainiji' grounds on account ot'the seiziu'e, and reterrnig to the positions, as found in the loj^-, produced l)y that ited (iroiint nu) witness, it will he found tliat the i iver this "hcst sealiu"' "Tound" aftoi' llie dat(> of ll le Log of till' wai'uiuL;' .yivi-n l)v tlie Tnited States cutter. Tier |)ositions were An^^'ust "_', '>\'^ 50', l(iS"' 49'; Auii'ust 8, I'nroiir i le year issii, Kx.s, r.s. oliiiin No. I. ■)4' 40'. liiS f)( ) A UliUS t 4, .".4" 3!i', Kilt' IV Aui-ust .'), r)4' ;}■)', 168"^ 40'; Aui^ust (1. .")4'^ AO', 170" 07'': Au.n'ust 7, .v.'' 0(1', 170^ 40'; Au.uust S, -y^ ol', 170' Ml'; An,uiist !), .")4" 4(i', 17P oi': An-iust 10, 'ti')^ o;V. 170- 4(t': lltli and 12th, position not ^iveu; Aui-ust U>, .")4- 4."»', KiS 17': Au^iusl 14, .5') 24', IfJS^ 3.')'; Au-iiist 1."). ").")^ 30', ICD^ 10': Au-iust Hi, 56^ 1.")', 166 ''ir.' 30": Auj-'ust 17, ;").">" 40', K;.")^ 30': Auu-ust IS, .-,.-)M2', 16")' 40'. The position occupied Itytlie sliip after the 2d dav of August is at no time l)eyond 171 west, and al- ways hetween ."»4 3.")' and i'tG lA', which is exactly, accordinji" to the charts citeil in the Aro'Uinent on he- half of (Jreat IJritain and accoi-diny' to the AriiUinent itself, "thebestsealiu"' "rounds" in Heriu"- Sea. ^rh position occupied on the 16th, 17th, and 18tli of Au- uust is dii-ectly hetwi'eii rniniak Pass and the I'ri- Itilof Islands, the waters hetween which are the "jireat hii:hwa\- of the seals," accordinu' to the claimants. The claim is made that the /•V^/v>/o//r did not chan;;'e her iJTounil until the 4th of Aui>'ust, evi( lentl \ to ex- vt THE FAVOL'RITK. 373 plain iiwiiy the ciitchcs maile on the 2(1 and vid of An;>'ust, anioinitinji' to 'JdO skins. 'I'lie Fiiruiirilc occupicil on the hx\\ of Auji'iist al- most fxactly till' sMnic position slic occnpicil (»n tins 2(1 and ,'5d, and occnpicd the snnic position aji'nin on the I3tii and 1 Itli, and on tiic KItli, 17tli, and IStli Avas hnntinjr in tlic most t'livoraljlc location, accordinj^' to the claimants, in the entire Herinn' Scji. The chiim is also made that she oulv lowered her canoes on the 2d, 3d, lOth, inid llitli. ' The ha sis of this stiitemeni is ol)tain(^d I'rom pnye ">, known as Exhibit Xo. !), United Stat(fs (daim No. 4, of the hook kept iiy ("apt. Alexander .M(d.ean, in which the total miml»er of scids tnken wms recor(KMl. That hook does not pnrport to cont;iin m statement of the lower- in<>' days. On the contrary,( 'aptnin .Mid.ean directlv testilied that the {i<:nres in this Ix.ok were compiled from a little hook kept on hoard the vessel, and which contained ww accoimt with ciich Indian hnnter. R., i:«LMino That i)ook was left on i)oin'd the Funiuiitr \\\ the fall '*■ of iSSi;, juid he hiid not seen it since, lie testilied aji'ain that there was one diiy's cntch left ont in tla^ statement com[)iIe(l on this pa<4-e, niinked Ivxhihit !•, United States claim Xo. 4, upon which day there i{.. i:i;{(). iim> were some llo skins tnken. ■'^^■ In the Arjiinnent tor (ireiit IJritfnn m map is referred Arjrnm.Mit on to which was prepnred by C. II. Townsend. assistant, ''"''■'•''"' U. S. Fish Commissioner iis teiidin;^- to show the loca- tion of tlio "sealing- •••roimds." The original of this chart is found in jiart 2 of the report known as Sennto Doe. 137 of the tirst session of the Fittv-fourth ( !on- .H'ress, and n[)on referrim;' to jtimc "t3 of the l)ook in which the map appears, it will t)e found that Mr. Townsend had before him a ciijiif oj' /In- /m/ of' the Fnronntc. for f/i/.'< roi/Of/r of Jssh'* Tin; chai-f itself (ireat lUit- iiin, i>ai;(' .")!•, line IT. " In tlio ilofumoiit rel'criod tii tlio looiitioii of tlie I'avoiinh; August I, is priiitiMl iiniler d.ite .Inly ;!1. iiinl tin- Incation Aiii;Mst L>. nuili'i- lUitf of Aiij;iist 1, and tliis iiiiNtalve in iiiado witli reloiuiieo to tlu: location for nach dav. 'I! m 3i • 374 THE FAVOURITE. sli<»\vs where tlie Fiiroiniff, between the 2(1 and lUth (hiys of Anjiust, sejih'e of l.SXC, is to l)e used as authority ii])oii tlie h)eati(tn of "the hest seaHii<>' <;rounds," tlio chiiui that the Fdroitritt- in the year ISSG was not on the sealinji' <:roinids would, a]>iiarently, not he sub- stantiated by the documents used on behalf of Great Hritain to demonstrate the location of "the l)est seal- Captain Mel^ean who, it will be remembered, was half owner of the vessel at the time of the voyajie and possesses an e(pial interest in the result of this claim before this lli;;h ('onnnission with C'liarles iSpriuji', w's asked on i-ross-examination: K.. 1335, line 'i*- I*'tl >'<•" ">' 'I'tl .vo'i "ot consider tliat you liad a claim 52. against tlie I'liited States liovernment for Laving been warned out of IJering Sea ? A. I can not say that I did. (i>. I asic whether you consider you liad a claim? A. 1 considered tliat I liad forthe Omrard. The Oiiwnrd's claim was good, but the Ftirouiite^n I was always in doubt of. Q. And you attached no importance to the matter at allT A. No, sir; I never made any claim. R.. 1336, line Q. You are sure you did not furnish Mr. Spring the par- 15. ticalars for the ]»res('iitation of the claim f A. Not to my knowledge. I never was consulted in the matter when he made the claim. The Government of the I'nited Slates claims that the FufOKrifr continued her huntin'f voyajje to the time that the captain considered the termination of the sealing' season, giving no heed to the warnhig of the United States revenue cutter, and tlnrt the testimony of the claimants establish the fact that no damage was suH'ered by reason of the act of the officer of the cutter. the black diamond. Claim Xo. 5. This L'laiiii wji.s not ])ivseiite(l to the Trihuiuil of Arbitration at l^iris, and is not in('lu(l('(l in the Con- vention of Fehrnarv S, 1811(1, either in the schedule attached thereto or in paninraph .") of tlie preaniljle us an additional claim. A motion was made on behalf of the Unittnl States Pleadings, that tlie Ili^'h Connnissioners "disnii.ss from con- «''"'" -^'"- -'• sideration the demand of the Covernment of Great Britain embraced and described in claim Xo. ">." The es bv reason of anv THi: HLACK DIAMOND. 377 wiiniiiiji' <:ivcii to tlic llhicl: J)ii(iiiiiu(l in ISSC was piv- sciitt'd til tliiit 'rrihuiuil. No n't'LTt'iict- is niiidc to jmy siicli cliiiiii ill till- iipptiKlix (if cliiiius tn tlic Coiivcu- tioii l»v wliicli tliis Ilijili ( '(imiiiissioii wiis crciitcd; iiiid this cliiiiii is not rct'ciTiMl to in itiinijiTiipli o of tlii' jin-iiiiihlt' of the ( 'ouvciitioii of I'Vliniiin S, iS'.Ki, ns an adilitioiial cliMiii to Ik- suhiiiittcd tti tlic i-oiisidi-ra- tioii of tilt' Hi;;li ( 'oinmissioiicrs. Tlic l)l/>/;»'iven bv auvone clothed with the authority of the Gov- ernment of the riiited States. The letter set out in that portion of the Argument' tiled on l»ehalf tif Creat liritain. wherein this claim is spcciticallx- treated, is not found in the Uecord, and the comdiisiim drawn that "similar letters were writ- ten to other collectors of customs" is lait based upon anv testimonv or fact found in the Record. An examination, however, of this communication from the Treasury Deiiartment of the rniteil States to the collector of customs at San Francisco discloses II f! 48 i']L.'. Oil lie- hnir of (i. H., p. ins, line 13. K.. i7:.ti, ".1. K. 1757, IS. 378 THK IILACK DIAMOND. tliiit the iiistriH'tious tlu'ic n't'civiu'i' wliiitfver to wani- iiiys iK'iii"- mvcn l»v tlu' culliM'tor fiddn'sst'd in tlint coiiiinuniciitioii to tlic ships of .iiiy othi-r nation. The nidrl,- DUiDinuil ciitiTcd H('rinust. line (^"jiptain I'axton was «|uestioned relative to the proposed lenoth of his voya;i'e and said: (}. For what length of time did you outfit ? A. Well, I expected to get back in the begiiuiing of September. \i.. 1757 (W. K.. 1757, 51. % Tin; liLA( K IHAMOMi. 37y ^}. Voii fxpectetl to U'livc tlio Bering Sea nbimt the end of AiiKUf't? A. Yt's, sir. Tlif iiiiitc, Owen 'riK.iiiiis, wiis ciiUcil ns n witness"-,',,,'"""'""" on Itt'liiilf ot' tilt' fliiiMiiint«*, ^i\in;i' no cviilfnct- of im- jKirtiMU'c rt'liitinj:' to tlu; occurrences iit Iniiliiskii, jnnl stntinji'. on cross-cxMniiiiition, tliiit tlie cii|itiiin wmildH.; i77i, linr lie hetter informed Jis to wliiit nccurred lit liiidiiskii tliiin lie. Tliis witness testilied reliitive to tlie time tluit tlie I'tliiil: IHdiiioiiil left tlie sea: (}. Are you positive yon went (uit on one oftliose days, ori;.. I77i, line near those days? ' ""' A. Somewhere near tlie iL'th of Au^iust or the 14th of AnjiMst. (J>. Yon eonhl not be niistiikeii about tliat :' A. No. sir; it must be sdinewheve between tlie lotli and loth, anyway. (). And no matter what the ('aptain says about that, you are positive that that is the time yon left ? A. Yes, sir. The testiinonv shows that althoiio'h this so-called wai'iiinji' was "iveii the captain on the 1st day of .lid\ , t]\{- llldcl,- DidiiKinil rtnU'u\\U'i\ on her voyaji'c until the 4tli of Auo-nst, when she commenced to work toward '^-j'''"' '""^^ one of the passes, and tinally left the sea l)etween tlu- loth and loth of that month, takinj;- in the meantime between TOO and ^iOO seal skins. The statement is made in the British Afoiiment: in the case of the lilark IHamoinl. No. "., and the 'W/''''''*'^',*f,',j;||5'"'<;;j. J(/«H/.v, the title was in a Hriti.sh subject, but the vessels were (-'I'l*.,,. 17^ operated for the benelit of a trading tirin at Victoria, com- lim. if. posed of the owner and one Alexander Frank, who was a native born citizen of the I'nited States. The Ixecord discloses that Alexander Frank and^f'- ^■"; I"- .lacol) ( J titnian, deceased, were e(|Ual partners, wincli, No.s.r.xiis. taken with the achnission made on liehalf of (ireat •'-"'■ Hfitain, conclusively proves that .\le\aiider Frank is a half owner of this claim. The stipidation recited agrees that the facts and i« (ii' I ill 3 so THK ULAt'K UlAMuXn. conclusiiHis <)t' flic (.'iiiiiiiiissioiuTs slinll l)c ('01111111111!- ciifcd to tlu'ir rfs|i('ctivi' ( Jovcrmiit'iits. Tlie I'liitcfl Stiitcs coiitciKl tlifit tilt' tt'stiuioiiy ('oiicliisivf.'l • cstnh- lislu's tliiit tlic ;iroiiii(ls ot' tlic motion tilt'd Ijct'orc this Iliji'li Conimissioii iin- siiHiciciit to cxcIikIc tlic ciiiiiii tVoiii tlu' t-oiisiilcriitioii of tlu- ( 'oniiiiissioiHTs, tiiid tiiiit flic filets iis t'oiiiMJ from the testimony are ns follows: Tliiit flit' llliirl; l>i(iiiiiinil \\i\H imt "seizeil or wiinied ill 1S8(! Iiy 11 I'liited Stnfes reveime flitter," iis foiiinl with reference to the vessels iiiimed ill Annex C. ii|(|iended to the iiwjird of the 'rriltniDil of Arhifni- tioii convened iit I'iiris; riint no Wiiniin^i' wiis eil chiiiii; That no instruction or comimuiicafion was ever sent l»y the Government of the rnifed States, or any jierson re|»resentiiij>' its authority, to the deputy col- lector of customs at the port ot Fnalaska, tlirectiii<>' him to warn or seize any vessel liuiitin,wero never com- THK IlLACK UIA.MONI). 3S1 iiiiiiiicattid to tlie ciiiitiiin or iiiiy olHccr of the lihiLk Didiiitiiid ill till' year I.SSH; That tlicH! is no tt'stiiiioiiv in llic hV-rord upon wliicli to liastf till' I'laini " Li';;i,l and otla-r I'XpciiHi's, s-ioO." That no ainoiint should he awarded tlii' owners of till' Bldvl; JUitiiioiid for ilainayi's sulfi'iod in thu year 188G. I i1>.79 tolls f I. iM.Mt. ,,^. 'p, ic vessel heiii^ ((wneu jit the time ot her seizun Id lUiis II. ("oojier, !i civil citizen ot" the I'liited States, miy liiil»ility on the |iiirt ot" the ITiiited State! to this claiiiiaiit is tleiiieij. Ill 18S7, after sealiiij:- alonif the coast, the vessel, K.. KKC, liiu' with ei>:ht canoes, entered lieriiifi' Sea altotit the 1st ot ,luly. ( )n the Htli. alxmt n(»oii, she was seized hv the I'liited States reveinie steamer Kiif^li for violating' tile mmiiciiial statutes of the I'liiteil States. Under the direction of the I'nited States ollicer makinji- the seizure, the schooner was sent to Sitka for trial, where App. It. i-'i.sheiiiTived-_Mst did v. On the l.'Uli Sei.temher. 1.SS7, tile vessel, her tackle, apjiarel, noats, carj;o, and tiir- App. H, i:;(i, "'^"''^' \^t''"t' lil»ele<(I.6(>; total, >^3,1 ")■_*. oO." riu'sc skins irtcrrcMl to aiv tlu' same as those rc'covertMl l)y tlic owner imder tlie Ixiiid jiiven. Captain Warren, wlio had tlie nianajienient of tliese vessels tor C'oi>|)ei", was asked: (). Were the seal skins iiicliuled in the bond yon jjave for i{., 1117, lino the Sai/inird ! 57. A. Ves, (I. I low many? A. Abont 440. (i). The bond was jj^iveii for tlie vessel and the sliiua? A. Yes. On the l!»th April, 1S8S, the followinj-- order dis- char^inji' the schooner, IT. I'. S(iif/r(inl,\h>n\ custody was made, directed to the marshal of the District ofApp. »., un. Alaska: yiu: The iibovenanied vessel and all her tackle, ajiparel, furnitnre. arms and ammunition, and (^ar^fo, consisting- of 17'.) fur srtil skinx that liave been reeeivetl by you in this port, haviii}*' been bonded and ordered released by the .jud{i;e of the above court, you will theretore diseliar;;'e the vessel, her tackle, apj)arel, furniture, arms, ammunition, and cargo, con- sistiufj of 47!) fur seal skins, so received by you, and deliver the same to .1. I). Warren. I hereby certify thai the tbrejioing is a true and correct copy of the order of the court in the case of tht^ Tnited States r. Sdiooner W. I'. Stii/iniril, entered in the above entitled cause. Attest mv hand and seal of said district court this l!>th day of April, A. I). ISSS. 11. K. llAVDON, IHstrirl 0/ Alashi. 1 liereby certify and return tliat the schooner W. I'. Nai/- ini'il was delivered to ,1. 1>. Warren in accordance with this o)'.ler of the court. I'lAitTON Atkins, Ciiited iStati'x Marnlial. In view of the fact that these skins were returned to the owiHsr, tlu' United States consider the claim for th leir value to have heen erroneously nu •hided \\\ the Ar^iunient on l»ehalf of (Jreat Mritain, the evidence 3.S4 THE W. P. 8AVWAHD. ' .ivcr tour-liftlis of • of loss of iiisur- iti(»ii of till' |)olifii;s beiiiji' coiicliisive, for in no other li<:lit are the Tnitefl States willinji' to v'u'w the ehrini made. It is needless to add tiiat it could not be allowed in any event. 'i'lie item termed in the schedule, " Insurance Anp. H, ii!». N4,S().;t6," is hased ni)on a statement of "itreniiunis paid |)er Sai/irdnl, Aiiiki lircl;. Dnljiliin, and (irocv" appearin^i' as Kxliihit No. (!4 (Cl. B.). claims No. (I, 7, !>, and 10. This statement shows that in the case of the ir. /'. Sdjiininl, the owner pai the prenuums paid, leavin; I'iii, ance after .seizure until the . m'ici li; of N«»l.,f)0. The United States (daim that the item should he reduced to this sum. An iti'in is iniduded in the schedule for "mate's trip to Victoria, >^1(K)." In tlie Arjiument on l)ehalf of (Jreat ihitain the followiiifj;- statement appears in reference to this claim: Ur.AiK., Ill, While \viiitiii<> for trial the mate jjot leave from the court line 1. t„ g,, (,, X'ictoiia on hi.s parole to return lor trial. This trip cost the mate 810(». The marjz'inal reference fi'iveii for this statement dis(doses the followiniil you ;;o away before that? A. I did: I came away in August. . Il(»\v long did you stay awav ll>en '. A. I arrived here on Saturday. and ' was on i .' way hack on Monday. (i). Why did you go back? A. To stand trial. (i). Why did you come away? A. 1 went to .ludge Dawson and asked him for ptM mission to fill liiDiif mill sir III If iHopli^ but he said there was no troul)le as long as I gave my word of honor to go back ami stand 4. THE \V. 1'. SAYWAKi'. 385 Lober. Did II. trial, and I did, and went back and stood trial wiien it come on. It is iiijpart'iit from tlu' tcstiiuoiiy tli.it iRMflifv tliis luau nor tlu' owner coiihl r.'covcr for tlu- expense of a visit to his family at Vietoria. The item in the schednle entitled "Belyea's cliarg-es" is nnwarrantei', as there is no evidence before the Connnission that such an anionnt has ever been })aid by the owner of the vessel to Helvea, or that he has become liable for such an amonnt, or that the services rendered were of such a nature as to warrant such a char<.i'e; anil,0O()," and an examination of the l\ecord,and especially of the pay'es cited in the British Aro'ument in connection with this claim, fails to dis- close any evidence whatever as to the expenses which were incurred by Thomas 11. Cooper, tlie owner, or of his attorney or anient in pmcurinii' bonds, and under any circmnstances the ownei- liaviiii;' bonded the vessel for the purpose of taking' an appeal to tlu' Supreme Court of the United States there is no rule of law or eipiity which entitles him to recover an\- expense incurred in coniUH-tion with [jerfcctinji' such a|)))eal. It is also apparent that this ex])euse, if any, was dependent chieHy upon the iinancial standin;^' of the owner. The United States claim that this item could not be allowed in any event. The sum of "sw/, >>2,(>(>0," is clainu'fl in the oppos- inj4' Arfi'ument for damages t(» the Sai/ininl. Upon B s 49 I l! T 386 THE W. I'. SAYWAKD. !■ K., 1147, 11'. K., 1104, liu( (W. t'.iis sul)j('ct the cximiiiiatioii of Captuiu WaiTeii iveu: . i). When did you get the vessel back from Sitka ? A. She came back here, 1 think, in May, 1888. 1 was not here in 1888. I was up in Uering Sea in the schooner Fannirifi: Q. When did you next see her? A. In the fall of 1.S88, when 1 arrived home. Q. Had ani/tliinn been done on the hnU after she arrircd hereof A. ^'ot to my knowkdije; tliei/ m'njht hare eaiilked her deeks and (/ireii her a coat of paint. No otlier evidence is proihiced than the statements of these two witnes.ses to estahhsh the (himajies whieh the Sdi/tranl sustained throiiiih is not only excessive, hut that thei'e was ->o unusual expenditure and no sum could he allowed under this item in any event. As to the items entitled, lespectively, "tla^i', >>1'_*," "heddin," and "artitdes (Ui hoard ship, items impossihie to enumerate (lutt returned), "^^Od," there THE W. P. SAVWARD. 387 is no evidence of jiny kind hci'orc the ( 'oiiiiiiission upon wliicli ;in iiwiinl could lie iiiiidt-. Tilt' (daiiii niiuU' for s'.lOO "loss to owner l)v rciison of detention in 1887 and 18SS, when, if in tlie owner's ))ossession, slie wonld have l>een eoastinii- Novendier, Deeendier, and Jiinnarv," is unwarranted. There is no evidence Ix'fon- the Connnission that this vess(d had ever been en;ia<>-ed in the eoastinj.>- trade other than was usual in connection with a sealing' trip on the c(»ast in the sprin<'' months. The niar<;inal refer- ences whicli appear in connection with this claim do not hear out the statement ma(h' in the Ar,4 13, respectively, beinp- for prospective profits, can not be allowed, and have received a full discussion at another place in this A"*"- loi. Ar^nnnent. The individual claims of Captain Ferev and A. 1 ). Ante, 3io. Lain<>- are considered in this arg-uuient under the title of "Personal (.'laiuis of Captains and Mates." The only damaji'e, which the owner of the W. /'. Sdjiivanl sustained, by reason of her seizure, was thronj;-h her detention from the date of such .seizure to the time when she was surrendered to the aii'ent of her owner; the measure of dama- the duinurra of the vessel at the juirt of \'ictoria tor that period. »i. M ■ilMl t.Ji.i, i ' THE ANNA BECK. ( 'l,AIM No. 7. App.^ H. p. '^pii^. Jt/iid lifck Wits !i scliuoiicr of o(>..'55 rcoistort'd ciiiTiiis ill tons. TIk' vi'sst'I Itt'iuj:' owned, at tlio time of her f'aso * 'viiN'-''''''"^'' ''y ' 1""""!^ "• ('ooper, a civil citizen of the Kcp.. vol. United Stati'.'<. any haljilityoii the ]iart of the l'nite denied. K., 1040. liim III 18s7, after a seahiiy vovaye in the siu'iny, she liiiotio; i;.; tran.s.sliipped lier skins on the we.st coast of \'anc»m- lou. liiKver Ishuid, and sailed for Meriny Sea, carrviny ten iineoi. 'canoes and one hnnliiiainst the schooner, her outtit and caryo. Snbse(|nently the vessel, a por- rioii of her outlit, and the si-al skins .seized were sold under the decree l>y the I'nited States marshal. By reasKii of this seizure the Aiiiiit Ilr( I: l)ecame totally lost to her owner. i!i. Ar-.. p. 'l"he scheilule attached to that portion of the Aryu- i ! I. lint'K.'i. , I 1 ii- I' / . i> • • I • 1 I • nieiit on >enali of dreat l>ritain relative to tlie claim of this vessel cuiitaiiis an item for "li.st of stores on 38S ;((.: ;|:' THE ANNA HECK. 389 bojtrd the sclioiHier Aiiihi licck wlu'ii scizt'il, so tar as the fiiptaiii can rccoUcct." The marjiiiial reterence t(t this item is "H., l(t61-(;2." Tlie part of the Keconl cited contains a hst by ( )lsen, the master, ot" stores on board of the schooner at the time of seizure. Tlie total vahie j^iveu by tlie witness of these articles is 8871.30. The item' in the Ar^^ument is s'leo.ao. An examination of this list (), leavin<>- a l)alance of >^(;Si.;5(l. Previous to the part of the Record cited, the followinji' aj)pears in the examination of ( )lsen : i'ees with ( )lsen in the anu>unt of .stores and their value, of which Olsen had personal knowledjie, the statement of the latter nmst be accepteil as the l)etter evidence. The item entitled "shtp chest, >^9r)." rests on the K.-.n^i- '''"^ statement of Captain Warren, whose examination shows that Ik- was ij^-norant of the anutunt of such property seized. ^Varren states that there were four '*v,^'/^'' ^""^ water tanks, and that "some of them were worth "^'2'}." n., ioi!2, line Olsen -i'ives in his list three water tanks. A claim is •■ made in the Arj^ument for "four tanks, ^^Kld."' Claims appear in the schedide f(tr "four shotu-inis, 81." Captain Olsen, in 390 THE ANNA MECK. t ■ II '* B., 1043, 34. liur Apii. U, line -M. 11-2, App. Jl. 1" "1, Hue 1'2 App. U, r ■X, line .>l R. lOtil, 47. App. B, line L'3, line 119, ret'criMici' to tlu' anii.s on hoanl the Ai/im l>f(h\ ti'stiricil ji.>< follows: Q. What was done with tlie auiiuuiiition and arms of the Anno I lick after the seizure? A. Tht> aniuiunition was left on board in the store locker, and the g\u\a were taken by the Indians and white hunters, When our Indians left the Anna lUrk in I'nalaska they hid the guns in their blankets in a certain way that nobody saw them. ii. These were the eleveu shotguns belonging to the ship! A. Yes; the Indians took them fromthe.buif/ lUvk onboard the Clitillinur at the time we left Tualaska. They hid them. -," "estimated value of arti- cles which were doubtless on board which can not be specitically mentioned, "anc' "expenses at Sitka, >^1 00," there is no evidence to support the claim. , '' THK ANNA HECK. 391 The itiMu tor "jR'rsdiinl cxpt'iises in ('((mu'ctiou with such seizure uiul chiinis, ^i^od," is presuinably l)iise' testimony of Captain Warren: i). And personal claims have been made of AliOO. To what K.. ii i:<, line do they relate ? "• A. Tiiat would be a proportion of my own personal expenses made in each of the cases. It is shown tiiat these personal expenses were incurred in the jjreparation of the chiini for presen- tation at Ottawa. The charj.«e of >i7')() for "counsel and other le^iiil expenses in and ahout tlu' (daiins arisines or Ijecanie lial)le for them. The item for "sealing- boat and outfit, 8140," is unwarranted, as it appears by the evidence that the Indians of the Ainia Beck took it wh.en they started •^•■i"^-''' i'"e for Victoria, the ijresujition Iteinj^' that it was returned to the owner. The item "337 skins at S6.5() each, s-J, 190. ')()," bein'e which the owner sustained by their seizure and condemnation to that extent. A claim is made for Sll),500 for "balance of catch for the remainder of the season" of 1 i87. 'i'he claim is in the natmv of future ])roHts, which can not be recovered in any event, since the vessel was totally lost to her owner. The law which <13.(>0(l," and the'" '' personal claims of ( )lsen and Keefe have receiv«'d full i'onsideration ar another place in this arjiument ■iai the alfred adams Claim No. S. R., ISiiO. lin. 10. Tliis cliiini wjis prcsciitcil to tliis IIii;li Coiiunission on tilt' Jitlidiivit ot' Williiim II. Dyer, wlio was ciqi- tiiiii ot" the scliooiicr du lu-r voynyc in tin- lU'rin;"' St-a in tilt' yoiU' 1SS7. Tilt' scliooiuT I'litcrcd IVrin^i' Sea July 10, 1SS7; was seized on the (itli day of Aujiust l>y the eoiii- niander of the I'liited States revenue-cutter Iticliiini I'iiisli^ and (»rdered to Sitka, there to he surrendered to the ])er.sons repre.sentin^' the authority of the I'liited R., 13g:<, linr States at that ])lace. The erew consisted of captain, mate, 2 seamen, cook, and 21 Indians. The commanding- otficer of the Tnited States steamship liiclninl linsli caused to he taken from the Aljhd Atliuiis tile followiiifi' property: < )ne thousand tliret' hundred and eijihty-two seal skins, 7 doiihle- l)arreled shot^iuns, 3 Winchester rities, 2 sinat that ])ort on the 31st of Auji'ust. British ar- ^loritz (Trutmaii is the owner of one-half of this 47,"iiiie'23. •■^''''"' "'"^ Alexander Frank, an American citizen, is the owner of half thereof »U2 THE AI.FKKl) ADAMS. 893 mimissKin line 50. Moiitz (Jiitiiiiiii, jis tilt' ndiiiiiiistrator ot' the cstiito of Jiic(il) (Jiitiiiiiii, (U'rciisc'd, iiiiidc jiHidavit <»ii the :itli diiy (if XovciidMT, 1SS8, its t'ullows; That tlio miid ili'iii of (iiitiiiiiii and Frank, haviiiii;' a flaiiii a^iiii'st tlie (iovernintMit of'tlu- I'nited .States of Ainmiia for tilt' aiiioiiiit of twenty tlioiisaiid fonr liundrcd and tliiity- tliree dollars, such claini bcin;; for the seizuri^ of a sailing srhooiiiT known by the iianio of ^I//>V7/ Ailaiiis, antl oirnitl bji the mill Jinn of (lutiiinn auil Fninl:, and of certain seal skins belonginfj' to the said (Irni, and that inoceediiiKs have been Kxliiblta, p. (•oninienceil anil are now beinj{ prosecuted for the recovery 214, Unoll). of such daiiiaKt^s. Ill tlif iitlidavit of Moritz (iiitiiiiin, of Xovoiidicr II, ISSS, 111' iiskcd tlic |irol»!iti' court for aiitlioritv to sidl tilt' assets of diicoh (luliiiiin, "exeeptiiiji' thereout the saiil elfiim of tweuty tlioiisauil four lmuili'"d and tliirty-three tloUars ;ioitiust the ruitetl States author- ities." Alexauiler Frank swore in his alhdavit, executed l''^;!''''');, 210, on the ;}(tth ilay of April, iSSis, that the linn , f (iut- nian i^ Frank did at one time own the A'^nd Ailmiis. In thisalliilavit. datetl Ajiril .".Otli, JSSS, he made oath that he was a half owner of "one otl'iei' schooner, also reji'istered at the poi't of \ ictoria in the name of dacolt (jlutman, ami under the name of A////, liut formerly calletl the Alfred .h/ro//.s." It is atlmitteil, oil liehalf of (ireat iiritain, that Alexauiler Frank was e(|uallv interested in the opera- tions of the Aljiril Adams for the year 18S7. II' is, therefore, et|Ually interested in the claim as lile Ite- fore this Ilioh Commission, inasmuch as tlie tdaim is one entirely relating;' to the carj^o or earninL;s ot the ship, anil not for the value of the liull. Opposetl to this, the (Jovernmeiit of the I'nited States claims that at the time of the seizure of the Alfred Adams, Alexander Frank w as not only inter- ested in the venture of the shV. h.it was an owner of tHie-half B s 50 '■!■■ i{i>4 THE ALKKKI) AUAMS. A»'c<»rility t(t AlcxaiuU'r I'Viiuk or his pnrt- lUT ill l»ii«iiit'ss, for the reason that he was an Aiiit-r- icaii «-iti/cu at the time of the seizure and ran not receive (huna>;{(»()," or the claim "personal expenses, >>20' " and no testim(»ny is cited in the Argument on be' of (ireat liritain. m THE ORACB AND THE DOLPHIN. TLAIMS NoS. i> AND 10. 'V\n-istrict of Aliiskii for violiition of the statutes of the Tnited Stiites. (Mi Septenil)«'r liJ the linl/iliiii, her outfit iUid ciirji'o, wi-re also libeled. Appeiininces were entered for ciicli vessel on hehiilf of her owner. On Octolier 11, 1SS7, decrees of con- deinnntion, forfeiture, mul .side were entered ii^iiinst the scluMiners, their outfits, iuid ciir^i'o. Sulisequently the ves.sels, portions of their outfits, iind the sciil skins seized were sold under the decrees by the United Stiites iniirshiil. Hy reiison of their .\i>|i.ii.|i.iiri, liiiP .55 J ji. lll,lino5r>; (Jliiiiiis ia III'. C'liHe, Am. K'l'p., vol. I, (ip. 1.-*, KiS. i;., isiili, line l!.,lSlil,linn i:i.-j:i. K'.. 111.', line !il;i;.,lli;7, liiiu H7. A]>p. II, |i, 171'. A pp. li, p. io;i. \PI>. II, pp. nui, 171. ;ti'| 31)6 THE GRACE ANJ» THE HOI-PMIN. Br. Ar;;., pp. 122. 12:!. Ante. p. 31 1 Ante st'izurc tlif (iiiirr iiiul Dul/i/iii/ hccaiiic totiilly \ost to tlii'ir owiuT. 'I'lii' items iittiU'liiMl to tlu' sclicduU' of tlic (liiniiifics clainu'd in tlu' ciisc ot" oiicli vessel, wliieii appeiir in till' Armmieiit on heliiilt' of tiie t'laiininit. those for i).;ii!i. "value of vessel," "expenses and liaiflsliips of crew," and those for the ]»ersonal claims of the captain and mate of each ves.sel have heeii alnady considered. ciniinsiii itr. 'I'he attention of the Ili;:h Conunissioners is called KoPm v"i!'<' ^hi- fact that there was no mate of the schooner J, i>. 207. (i)-i(((\ ;iiid no claim on Itehalf of oi\e was made n the claims snl)nntted at I'ar IS. ■i:!;l{.,l(!17. R.. fiis, lino 'I'he witness Norman, who testilie(l to havin^2on," lia\i' no e\idence to support them. T line anil iicrsoiial expenses, ^■_'.")(), ' are not pn ! erly incliide(l in the sche(lules, lieiii;^' incurred, it at all, in the preparation of the claim tor presentation at (Htawa, and l»ein,i' covered liy the item charjicd in the 'riiornton claim. A claim is made in the case of the (Inicr for "bal- ance of catch for the remainder of the season" of THE GKACK AND THE DOLPHIN. 397 1SS7, si;),;-,oo, and n similiir cliuiii is niinU' in tlic ciisc nt' tlic lh)li)liiii amoiiiitiii;■_*•_*, 100. Tlicsc cliiiius iuv for future protits wliicli cini not he rc- covcrcd ill any event since the vessels were totiiHx" lost to tlieir owner. Tlie law wliieli jioverns in c.isesAute, p. loi. of total loss has l)eon alreaiU- discussed. The items in the schedule of the claim made for the (iniiT, "three iron tanks, tw<'lve water casks, twelve '■• "•'i'- The testimony of this witness shows that his evidence relates to the cost of these articles, and not to their value at the tiiii<' of seizure. In connection with the ditfereiit articles in rei;ard to which he wa^ (|Uestioned, he stated as follows: Tliiit is Just wliat tlu'.v would cost. (}. How UMU'Ii slioulil you say tlicy were wovtli .' A. That s about what tlicy cost. \i.. UHit, line i;., li;!!), line 5t!. (). How uuu'li woiihl that cost! A. Fifty (lolhu's. (). Thiir is the cost price' A. Vivs. i;., ii:!!i, line (ill. There is nothinii' in the K'ecoril to deteimiiie \\hether or not the artitdes were new when seized. l)Ut since the vessel ha, and 10. liy tins it I'jtjK-ars that tlio polii'v was canceled (»n Aujiust IStli, and the only damage that the owner coultl have sustained hy reason ot' the seizurt' was the amount of premium tor the thirtv-one days from .luly 17th to August l^6.r)0 each, >s4,!)!»S" wi 11 he d iscussed HI connection with a similar item a) ih peariii^2,5(HI, (»ut of •)(i; 1 I7!i liuol's. which the w. es ot the captain, mate, and crew wen jiaid. leaving- a l)alaiice in the hands of Warren «2, (>.'{(•. N'o reference is made in the Uritish Argu- ment to this charter, and no deiliiction is made for the money ri'ceived therefor. It is claimed that from whatever amount of damajics sustained hv the owner as a result of the seizure there must he iiuns at >^4(t each. lit nuizzle-loadiii"' "iins at ^I'd each, 4 riH( It >^ •_'•_*.."»() eacli 1. »oml) liims, tool> and iiii;- stove," are based u|)on the testimoii\' of Captain Warren, and what has lieen said in reference to his testimonv in coiisideriu":' similar items in the schedule of th here. d i e damages claimed tor tlie dntir e(piall\' applv th lib h'.^ U71, Inio 'p]„. (ii'(ijin IS mentioned in this schedule areclerived trom a list contaiiieil in an account hook, from which THK OKACE AND THK DOLPHIN. 309 the witness Wiirri'ii tcstilicd. In liis cxiuniniition in ret'crcncc to tliis nccdunt liook, inid jinrticnliirlv to this list on which the item tor fireiirins in the o])|)osin piece, was returned. ***** The Indians on tlie holphin got tlieir guns baelc; I do R, 1159, line not know, but I suppose that the Indians on tlie (Inur <;<)t •^^• theirs buclc also. They were there at tlie time and I know they were given what they claimed. (j. Do you mean by " their guns" guns f'luiiished tlieiii by you ■'. A. No; their own guns. There were quite a number of them seized. il. Were there any guns on the l><>lpliin besides those you did not get back ' A. Yes; (|uite a lot. Q. How many? A. 'I'liere was abmit '-'1 shotguns and about trifles, as near as I can remember. Q. Do you mean belonging to the Dolphiu '. A. Yes, sir. It is iippiirent, tlieref'ore, t'nuu this evi(UMU'e thnt tlic "ten iiiiizzlc-loiidinj;' ;L;uns" ;ind five of the shot- uuiis were I'ef umI, wiiieh would eorrolioi'ate tiu' stiiteiiieiit of th' w itiies^ of the luiiulier of ;;uiis t;ikeii ;is "iii)oiit 21 siiotu:iius iind jilioiit 4 rifles." The witness WiUTeii stnt, ^ tliat he hoiii^-ht some ,,f ''■•:.; '•^•'' """^ these "inis iit auction when tliev were >i>ljilihi were jiurchaseil '>v ^ J'"^|p',.jj, Warren tor N2!I'J.5<>, and those of the ^ / (/;-J!)'J.")() and >i!)1.5(l. i I'- '["lie item "insurance, >i72'J.71," is founded njion tiic statement in Kxiiiliit No. ()4 ((i. 15.). ( 'laims Nos. licies were can- cele(|. lie liavinii- had the iieueiit of the insurance froui dannar\' ."i, lS.'-!7, when the policies were issued, up to the time of the se'zure. The item '•aimnunitio-,i extra" has n«> evidence to sustain it. In referenci' to the claim for "(!l.s skins, at i^O.oO eadi, >^4,(tl7," and the claim for "7(;!l skins, at N(i.-,() each. >^1, ill's," fur the (iidic^ the K'ecord discloses that tlie\ wen- purchased l)\- Warren at the sales which took plac<' on .\u;iust lH, 18HS, to which i-ef- erence has Iteeii made. His testimony is: line Q. ( 'nil yoii iiiiiki' a statt'iiKMit of till' seals you liavc Itouglit t'roni till! various V6.ssel.s. You tfilil us tiiat you thought you could do so. THE GWACE AND THE DOLPHIN. A. Yes; it is as lollows. 401 Scliodiier. Seals. Prii'6 cacli. Alpha US!) $;i. tis Lotti(^ Fairlield 413 ;i. 70 Dulphiu i:[fi ;i. 7r) (iraco ;i;.'/ h. 30 Alfred Adiims 1, 378 3. 30 That is the lot that I liouglit, but on a division I got 121 more. Till' R'tiinis nt'tlu' United States niiirslial for tliest'ApP; n, p. 11 ^11 1- 1 .• 1 11- 1 Id.liueis: sales show tiiat lie ivalized troin the sealskins 011 tlie I78,iiue45. Jhlpliiii !S2,23') and from those on tlie^//'wr >^-2,')ol.lO. 'I'lie owner, liaviii. line ■IX. H.. 1213, lino IS. H., 7SS, lino 28; 1211. Iinr21. K.. 1211. line 50. K.. 121t;. lin.' 20. K.. 128X. line 10. li.. 12!iT, lini' 17. K.. 12118, line 12. h'., 1277, line 25. \i.. 1217. Untt 50. K.. 1217. lini> 58. THE ADA. Cl.mm No. 11. Till' Add WHS ii scIkmiikt ot" (!").2;{ tons rcj^istcr. Hit owiKTs ill .liiiic, 1SS7, were . I. . I. Gray iiiul W. K. I'iiH'. Slic siiiK'il tVoiii \ ictoriii tor IVriii<>' Sea on .TniK' 17, 1887, carrviiifi' seven canoes, one liiiiitin<;' l»oat, and a st«'rn lioat. She entereil tlie sea .Inly 16, and contiiHUMl .sealinii' in those waters until the inorn- \u<^ ot' Aiiji'iist 2.">, at wliirh time she was seized l)v the Uniteil States revenue steamer Jicin; liavinji' on lioard 1,S7(I seal skins. She was towed to Unalaska, where she remained two days, her seal skins and tire- arms heinji' removed. From th;'t port she was sailed l»y her erew to Sitka under orders ot" the commaiidin};' oilicer who made the sei/.nre, where she arrived Sep- temi)er ."). Septeinlier 13 the vessel, her oiittit and car^o were lilteled l>\- the I'nited States attorne\' tor the District ot' Alaska, anil on Octolier 11 a decree ot' condemnation, t'ort'eitiire, and sale was entered. ( )n the same ila\ one W. ('lark filecl a claim ot' owner, statiiiii' therein that he was the diiK' authorized attor- ney for ■' ('I'aiu'. owner." The \cssel was siilise- <|iientl\ sold under the decree. \\v reason ot' the sei:.aire she liecame totalK' lost tit her owners. 'I"he .I'/'Mvlieii seized had in tact com] ileted her seal hiiiitiiii;' in Herinj;- Sea, .lames (laiidin, the captain, haviiiii- stated that the len;:th of his voya^i'e would he determined ahsuliitely l>y the weather. The sclinnner Allif I. Alf/ir was seized on the same day. a short time Ix'fore the Alia. ( 'harles ]•]. K'aynor, the master of the A/(/ri\ testitied that he had tinished sealinjif'or the sea- 408 I m M THE ADA. 408 i son, aiul that lu' liiid iittciuptcd to leave the sea tlie iiij>ht before, l^poii cntss-exaniinatiou Ca|ttaiii Hay- K., 1256, line nor was asked: "Wliat preparation liad you made on ^*'" the •i4tli?" To wliieh he answered: "I turned my boats all Ixtttom up on deck and laslied them, and stowed evervthinji' away and made fast." The evi- dence relating- to the duration of the season in the ^^„jp j, ^og Aear ISS;? has been collected and discussed in another part of thisarth of .\ngiist, 1SS7, and that, as the weather was to determine the extent of her crui.-;e, the voyage of the Adii was ended; and, furthermore, she had secured a catch, which demon- strates that her season was over. The item for ^12(1 in the claim |)resented in the Argument on behalf of (Ireat Britain termeus to the dei)arture of (Jaudin, been in possession of their canoes, the presumption is that the canoes were retained bv the hunters; and. ill 404 THE ADA. 59. K. line VJ, ">.".. ">!1. furtlicriium', that the canoes hoitig' the property of the Indian hunters, (ireat Ikitain is n»»t entith'd to present a claim tor tlieni in any event. R., 1213, line '|'i„> (,/„ ,..|n-i('(| one huntiii"- boat and a stern hoat. The hitter heh»nra\-, R., 12'JH. lino that in Mav he i»urchased three sealing boats, which, delivered at Victoria, cost him >^4'J0.r»7. One-third of the sum would l)e >>140.1!*. As the boat seized liad been used at tiie time of seizure for one season, it would have depre«Mated in value about one-third. ('. \. Lundl)er;i, the mate of the Ada, stated in his examination that the shotyun which he used was returned to him, and that he saw some hunters of the Aiettin^3.1tl and >>.■{.■_*;"», and for a white man R.."i24.">, line^Vom >^11 to ^I'J. Vhr Adn carried seven white men 8*' and fourteen Indians, for which the provisions would THE ADA. 405 liMvo cost, for the tweiity-oiK' d.iys t'nnu seizure to the time the provisions tniled, aintroxiniiitely ^W. There is no evidence in the Record as to the nniount " uitoTis.'^^' of "aniniunition, shii)cliaudh'rv,et«'.," for which unient,otlier than the annnu- h., ii'ir., line nition referred to in the h)^' of tlie />«/•, the vahie of '*• which is not (U^ennined l)y the evidence. There is no evidence l)efore the ( "onunissioners as to the "l)eddin;i" chiinied to liave been seize(l on tln' A(l(i, or the vahie of sucii "l)ed(hnji:" or as to the vahie of tlie "nautical instruments, etc.," seized. Tlie item for >>(I(M) for ''estimatetl value of other unconsumable sealinji' outtit ami articles which were tlonhtlrss on Itoard the vessel, l)Ut which can not he s])eciallv mentioiu-d," is an excessive and exorhitant (daim, wliiidi lias no foundation in fact to supixirt it. There is no evidence that an attorney was employed 1)V the owners of the vessel, or their aji'ent, for the defense of the vessel at Sitka; and that whatever services were performed l)y Mr. Clark as the proctor (»f record, which a]>i)ear to have been solely tlie liliiiu' of a (daim of owner, were done on his own motion. amP* witliout aii\- authoritv whatsoever, and, fiirtlu-r, that the owners did hot l)i-('ome liable for such services. The item entitled "i\xpeiises and hardships uf Ante, p.iU'J. crew 22 at, x)ti/, >i.")00" (which has Ik-i'II t'lToiieously imdiKh'd twice in the schedule of dama;^es, and ap- pears to have been iucludeil in the sum total), are jiersoiial claims, -vliich, net Icivin;.!' i)een presented to the Tribunal of .Vrbitratioa .it Paris, and m.l liaviii;L;' been incduded in the "additional (daims" referred to in the preamble of an a]ipendix to the Convention of Fei)ruarv 8, ISHG, can not l)e allowed i)y this llio'li Commission, and coidd not lu- in any event, even il there was sutHcient evidence to estalilish smdi (daims, \vhi(di the rnite(l States insist there is not. (Irav, the mauaiiinu' owner of the .Ida, stated in his i;.^i'.';!5, line examinati' tluit Helyeji was einiihned hv the owners or tlieir ayeiit in the |ii('|»aration of this chiiiii at Ottawa, or that tliey he- canie ohiijiated to pav him any sum whatsoever. Tlie item in the Argument on helialtot" (Jreat Britain en- titl ed Me \ea s chaim's is un\varrante(l, and has ii< K.. l-'it!. lilM.lijill evKU'iice to sui»|)ort it. rhere appears in the schedide reterred to an item entith'd "Personal exjieiises of owner from Voilej;Tam from Moss, his ayeiit at \'ictoria, iiiforminy him of the It.. iL'iii. linn seizure of the schooner, hut he did not return to \' ic- toria for n //far from the time of its receipt. A letter was produced which was received l»y him from Moss in the latter part of Novemher. ISSS, relative to the hondinji- of the vessel, ui»oii the receipt of which he claimed to have returiiecl to \'ictoria; hut in view of his former kiiowledii'e, and presumalile correspond- ence with his aji'eiit, Moss, the implication that the seizure was the immediate cause of his return to Vic- 'oria can not he admitted. As his place of residence was that city, and has been such up to the ju'eseiit time, the tdaim for his e.\]»eiises from Yokohama to his li 1) ouit\ which are exorl)itaiit in amount, should not H' allowed ill anv evt'iit. It ajipears from the testimony of Gray that Moss, K., 1231, liiiefl,,. a;ieut of the vessel and of the I'fucJofic, also K., 1235, line owned hy (Jray in 1S87, was a purchaser of seal E^^i932 line'*'*'"'* "' ^^^^ V^ictoria market. As he guaranteed 23. ' the payment (»f a })art of the outfit accounts of the Add ill 1887, and as there is no evidence that he received any remuneration for his services, the pr<'- siimiition is that he t<»ok the responsibility of agent THE ADA. 407 jind ^iuariintor tor tlic piirpost; «»f s«'ciiniilit tako in lier north- ern cruise, inul tlmt tlie ciitcii of the Aihi wonUl have been tlieret'ore marketed at Victoria. Thi; chiini tor "estimated catch," heiny For pros- j)ective profits, can not he alhtwed, as the vessel was a total loss to her owners. The value of the vessel and the personal claims of Ante, i..:ti5. James (Jaudin and (". \. Lundher"' have heen already Ante, p. 3ii). n consK lere.l. 'i'he I'niteil States admit that the owners suffered (hnnage by rea.son of the seizure to the amount of the value of the Atltt, in the condition which she was when seizeil, in the market of \'ictoria at that time, of the market value of t-he articles, not properly includecl as a part of the vessel itself, in tlii' condition and at the time when they were taken from the schooner by the Tnited States, and of l.STfi sealskins at the price rulinii" in the market at N'ictoria at the time when the the natural course of events, have vesscd won Id. m returned to that port in 1S87. !'■ the triumph. Claim N... 12. IS Tilt' stillcliiflit nt' flic cliiilli lit' till' (>\\ iicrs of tl... vessel, liled lit N'icforiii, sets uiit tlie (le|»!irtlin' of the Tiiinii/ili lor Hei'lii;^' Sen, tlie w iirniiij:' ;;iveii l»y tlie revenue cutter lliilimil Itiisl,, jiiiil iillc;;('s: "Tliiit in c(Hisc(|iiciicc lit' tlie illcjiiil liciiriliii^i', sciirdiiii;:', Wiirii- iii;^'. iinil tlirciits of sei/.iirc, iiiinle ii.se of liy tlic coiii- riiMuliiiKM, iiuiikI,.). nt' tlie sjiid cutter, the iiiiistcr of the 'I'liniiipli cliiim Nil. I , I I • • I I I -til- I.' •' 12. (iliiiiitli)iiiil Ins nitniilril rai/iif/c nilu hrrni;/ r^a. 'rile cross-cNiiiiiiuiitioii of scNcr.il witnesses, testifv- iii;:' liefore tlic ciise of tlic TiiiiDijili Uiis o|ieiic', she was l)oa>''h'd l»y an oilicer from the United States '•>{)'' '' '""revenue cutter ilicliinil liuxli, who e.xamined the ves- sel, returned to the cutter, whereupon Captain Shep- ■KW THE TKllIMl'H. 409 anl, (•omiii!iii(liiiji' tlm Itiisli, liiiilcil the 'I'limiiiili iiiul wiiriicil licr not to enter lieiin;;' Seii. The ciiiitain of the 'ii'iiimiili, tlie niiite, niwl tlie IiMhiins, Sniitli siiys, tiilked over tlie mutter of eoii- tinninj:' or iil»iin(loiiiii;;' the voviijie. the resnh l)ein l-'^^' '"'" ji'o on the roeks or rnn hefore the ;>'ale." (i. r>nt. US a niattpr of fact, tlie vessel eiitcrcd ISeriiifj' Sea? A. Yes, sir. Q. And, as you miderstood it, she made in what direction? A. Wcsli'fly. The hmitin^i' hoats of the vessel were lowereil (.n ''"■. i""') '''>« the r»th (lay of An^^iist, the day after the waniin;:', when 1!) seals were taken, ami on the follow in;.;' days thereafter, with the residts stated: AuLinst Nth, !» seals; !)tli, 42: lOtli, ;}4: 11th, 33: 12tli,'2:): 13tli, 3-J: 14th, 24: l.'ith, 34: Kith. .'{; 17th, 3.'): ISth, 2: l'.»th, IS; 2(»tli, 27: 2lst, 4: 22d, 14: 23d, 3.".: 24th, l.'J; 2:)th, 33. The 'I'liiiiHiili, therefore, entered IJerin^i' Sea the iii^iiit of Aii;;iist 4, and the next day commem'ed hunting-, and eontiniiecl withont interrnjition, save byK., uoi, line the weather, nntil the 26th of that month. What elaini for dama;;es this little ves.sel of 1") tons, which, according' to the mate, hunted more daysR., laiUi, line wliile in the sea than any vessel a detailed account "' of whose voya^i'e is ives the intnrniii- t'wn that the intention of the chiiinants was t(» estab- lish tlie fact that their vessel ' upon the location and niovc- uients of this \ess('l between Aujiust 4 and August 2(! comhisively estal)lishes that she hinited continu- ously durinji' that period, sailinj>' westerly between tlie northward of luiniak Pass and Four -Mountain Pass, K., list), liii.. taking' a course far enough to the northward so that '*• lioifoslof Volcan(» was over 50 miles to the south. R.. 1402, line <,>. Wc wci'c tulkiiif;' about tliis stdriii. WIumi tliis storm 39. \v;is l)lo\viii';- you into l>("in}>' Sea, alter you {jot tluouijli riiiinak I'ass, did you chaujjc your cour.so to no to the westward ? A. So I'ar as I can rvcoUwt. out- roitrxi' irosulirai/x ircxtovli/ alter we went tlnoufjii the liiiuiak Pass. K., lioi.'. liiiu The vessel then hunted for tweut\-one days, durin^' "' ■ which time she could covei'lxit a small distance, as a vessel is luiable to sail fai" while liei' canoes ai'e out. K.. no;!, line 0 miles to the northward. A. Oil. no; it was further otV than that. 'i'lie witness apparently remembered that his testi- m ' .Si if ■ i( THE TRIUMPH. 411 \(t nil' Muri ll\^ ill II iiiun- iii.iii >;" iiiiM-^ iiiMii 1 foj^i p.-nii \'(>l('llllO. Ill tlic iitt('iu|)t ot" tlic witness to ;ivoiil tlic clirrt of this ti'stiiMouv, lie siiid tliiit lie ^^i.l .mil tint I I'i .1 If I'l"! 1 il I \- ill 412 THE TRIUMPH. Ar<>unKM»t as l)eann<>- iijxm the locality wliero seals are t'ouiul in Heriii<>' Sea, and trace the v(>ya«>e of the Trhnn}>h. She sailed directly over the so-called sea]in<>' <>T(»nnds. That the Triumfih, which sealoes l)y reason of the warnin<>' <>iven by the Tnited Siates revenue vwWw liiihatd lUisli is abundantly established. If the TrUiitipli had been deprived of an oi)]»or- tunitv to take seals the results secured by her hunters inifi'lit certainlv l)e expected to establish the fact. Arj;. ou be- 'PIh' Arjiuiuent on behalf of (treat liritain states (jreat, Brit- that the Mfu/f Ellcii is the vessel whicli should be aiii.p.79. iii;„1p ij^^. of as a basis for calculatint>' the catch of other schooners. Tlie Maiji Ellen made an averaue catch of (i.74 .seals per day from tlie Ath of Au^^ust. The statenuMit is made in the Arip seal skms (liUMny that periotl. This calculation, made upon the basis which is the most ailvaiita;^('ous that could possibly be obtaine(l from the U'ecord, fails to establish the claim that the 'rriimi/ih was deprived of the opportunity to take seals l»v reason of not veiiturini;' upon the "best sealiniz' •"•rounds." Some vaji'ue testimony was adducecl, l)eariiiji- upon the dui'ation of the \«>\a;i'e of this small \('ssel. lait the rniteil Srat<'s rest upon the ^^eneral testimony reji'ardin;^' the close of the season in Ht'riu}; Sea, and )»('lie\(' that the vn\aL;e of the Trliiiiiiih was com- pleted on the 2()th dav of .Vuiiust, haviuii' continuecl THE TRIUMPH. 413 without int<'iTU])tion and witliout ivt'crenct' to the warninji" given by the cutter liiclnud Hush. TIh' nature of the testimony (U'pended upon to estaldish a chiini for a season extending to the l")tli day of Sei)teinber removes all doubt, if any exists, as to the (luration of the voyage. Q. When yoii left for the voyajje had you any coiiver.satioii K., 1400, lino with tlie owner of the vessel as to tlie time that you were to '•'• reuuiiu in lJerinj>' Sea in 1887? A. Well, yes; several conversations on that snbjeet. Q. To whatertect? A. That from hearsay, from those who had been to Hering Sea before, that we coiihl make a good catch the latter part of August and the beginning of September. At that time a fine s])ell of weather is expected, and I liad a thorough under- standing with .Mr. I'.yrns. myself being on a lay, that the vessel would be provisioned to sucii an extent of time that it would enable us to stay until we were driven out by the we -flier m- conid not lind anv nu)re seals. if. Had you been in Hering Sea before that time? U., llo;i, lino A. Xo. sir. (}. Had tiie cai»tain? A. Xo, sir. There is no testimony in the record niion which to l)ase the claims for "proportion of Warren's expenses to Ottawa, >^1.")2,"' and "expensi' of owiu-r, >;•_'< lit," and "Belvea's charges, >>"J.')0," and no testimony is citeil on behalf of (ireat Uritain. 'The Government of the TnittMl States contends that the Triiiiiipli continuetl her voyage after the warning withont interrii|)tion, seciireil an mmsnally large catch, and having hnnte(l the full season, sailed for Victoria, where her catch was sold, and that no damage resulted to the owners from the warning "•iven bv the cutter. ii. iifl: f E., 1339, 41. K.. in 10. 1{., VXV.t. ■M. U.. i:u;i. o2. R., 133S. 10. E.. 1310. 61. R., 1310, the juanita. Claim No. 1.'). '"'" Tlic Jinniitd entered lieriii^' Sen on tlie '-M seized on tlie 31st of the '•""siiiiie nioiitli l»v ( 'iiptiiin Shepiird, of tlie riiited Stiite.s reveiuie-ciitter llhlninl lliisli. linr 'I'll,, ci'ew consisted of 14 Indians, the Cfiptain, iiiid 3 sailors. Tliere is no (evidence l)earin,ii' U|ion tlie niniilter of canoes carried by the Jiidiiild, hut the fair |)resiini|)tioii is that she had 7. inasiunch as she car- '"""ried 14 Indians. 'I'lie stiTU Itoat was not used for Imntinii' to anv extent. line 'p|„. ciitt,.]. seized (MO seal skins and the spears of the Indians. '""' There is no evidence that an\' seals were taken after the 3lst dav of ,lul\' or that the boats were low(>red. ('aptaiii ("larke. also one of the owners, testilied: line (^), I'll to wliiit tinie (li- season: (}. And it was your intention to stay until the beginning H. of 8ei)teniber that year — up to about the 14tli ? A. I tliink tiiat the lOth was the (hvy mentioned. The only otiier testimoiiv in tlie IJeccn'd hearinji' upon the proposed (hn'ati<»n of the vo\ aj:e of the JiKiiiifd was <;iven hy liichard llall, one of the owners: Q. What length of voyage was yoin- vessel fitted out for H, when she went to liering Sea? A. When the captain left I told him to stay on until some time in Sei)tember. I do not remember exactly what date. Q. Had you infornnition that there was any use staying until Septemlier ' A. Yes; 1 was told by some one in tlie sealing business that there was sealing to be done in 8epteMd)er. (). And you made up your mind to try that? .\. y' the voya've of t)ie Jiiiiiiild nntil the loth of S(>])teinl»er. It is, of eonrse, to the interest of these elainiants to extend tlie sealin<;' season as far as ])ossil)le into Se])tend)er, hut this testimony certainly will not war- lant (he findinj;' that the time dnrin;;' whieh they were dejirived of the use of their schooner extended until the ir)th day of Septeiidier. The llijih ( 'ommissioners have more authentic testimoUN of the hasis of the runioi' u|ion which .Mr. llall l)ased his testimony reyardinji' the |»i'o|iosal to remain in lierin^- Sea until the Kith of Septemher than Mr. Hall hims.-lf ha.l. ('a))t. \ ictor .lacol)sen, who is also a claimant, was examined iclativ<' to the voxniic of the MiniiiUtUi Cliirf in ISSS: . I am talkiiiji abiiiit wliether you are certain you limited after tlie .'id oC September? A. We went out tliroujili the Pass, but we Iiuuted to tlie last. We lel't tlie .sealing jiidiiiid on tlie 3d of September in tlie sea, and went and lilied water, and we lowered and sealed after we tilled water and come out, the same day we come out or the day before. ii. Vou iiractically abandoned your huntinjj;' then on the .'{(1 of Seiitember .' A. Out in the sea. I suiiptise. We come and tilled water and then we hunted after that. . Vou lowered in the I'asa. A. Y'es; lowered in.side the Tass. 'i'his is the only sealing schooner that hunted in erinji' Sea into Soptemher of the year iSSS. The Jnini'ilii was in Heriiifji' Sea in the year IHSS, and terminated her voya<;e Aiijiiist "JO. The - character of that testi- f:i THE JUANITA. 417 moiiy is suHicii-nt to oiit\\x'if;Ii the vayue tostiiuony of these two owners oiveii in tlieir own Ije'ialt". The JiKiiiitii was ])nilt in l.STo. Her jiToss tonnage ^s^^''' ""® was 40.21. The fact that the Jii(iiiit^23,12'J for the use of a vessel of 40 tons for a jjcriod of from twenty to twenty-five days is too grossly extortionate to lie consiiU'red l»y a tril)unal of justice. The ves.sel was worth about ^:.',00O, and that she could earn over five and one-half limes lu-r vahu' within twentv or twenty-live days, and at the rate of over ^'ioOjOOO a year, is so impossil>le that justice will not ))ermit of the use of any such l)asis for estimat- iu"' the future earnings of this vi-ssel. This vessel is entitled to recover from the (ioveru- ment of the I'nited States her charter value from the 31st day of duly to the -JOth t»r -ioth of August, measured bv the rule of law stated in the ArgunuMit relative to tlu' measure <»f damages in cases of partial loss, in addition to the value (»f fill) seal skins at the market })rice obtaining at Victoria at the time the skins woidd have been offered for sale. u s 53 f ! I W'- 1 l'=il K., 707, lines 12,1,2S; K'., i:>l):t. line 58. U.. irilll, lino 3. II., 1505, linc8 10. 47. ArKiiincnt im I)cli:il I' ol' Gifiit lirit- uin. ]i. IT: K., 1571, lin<> II. the pathfinder. Claim No. 14. Till' I'dflijiiidcr I'litertMl lk'riii' v(ivii(»lH- cer (lirecto>■_>(! each. In the arjiument on l)ehalf . line y,„i,.j.^y ] |{,.(.litel Was also an owner of one-half of the vessel, resting;' this (daim iipoii the testimony of AVilliam .Muiisie. The traiL-actioii |iertaininji' to the I'litlt/iiiiltr was in all its detail exactly the counteriiart of the transac- tion between .Muiisie and Hechtel with reference to Ante, 3S7. f|„. ('(iiitlrhd. and at another place in this arjiument list THE PATHFINDER. 419 the husiiK'ss relations oxistiiijj;- VK'twceii tlit'so twonu'U hiis been ilisctissed at lon^tli, and a ri'|)t'titioii tor tlii' purpose ot" the chiim of the I'af/ijiiitlvr is deeiiied ximu'ccssarv. The chum ot" the /'utlijimlcr l)eiu<.;' eiitirely tor tlie vahie of seal skins actually taken, and for the use of the vessel between the time that she was seized in lierinji' Sea and the close of the sealing;' season, no claim Ijeinji' niach' for the vessel itself, even if Hecli- tel was not a half owner of the bottom of the ship, his interest is an ecjual one with William Munsie, and he is a half owner of the claim against the (lovern- meut of the United States. In this case, as in all other cases wherein an Ameri- can (Mtizen is interested as a claimant, the position of the (ioverinneni of the United States is that n<» citi- zen owinji' alleji'iance to it can recover dama^'es l)efore this lliji'li Connnission for any injury sustained by that citizen while vielatinji' the sovereiji'ii rights and the numicipal laws of his t»wn country. William Munsie, testifvin<>' in his own Itehalf, stated: Q. Hut you did uot give any instructious to your captain b,, 1505, line as to how long she would .stay there '! 16. A. I did not; I left it toliisown discretion to stay as long as he could while the weather permitted. And on cross-examination this witness said: Q. Did the /V(//(_/(H(?(t ever .seal in the Bering Sea in the R.. 15,51, line niontli of September prior to the year when she was warned l^- or seized? A. 1 do not know. Q. By your direct testimony, when you referred to October, r,, 1553, line do you mean to be understood that there were any instruc 57. tions, or contemplation of any, at the time of the outtit of the I'titlitinili'f that she was to remain or seal in the sea in October'? A. No, sir. Q, Or that she was to remain or seal in the sea in Sep- tember ? A. No; it was left to the discretion of the captain. 420 THE PATHFINDER. I in rl t '' R., 1551, line (^, Did that iiuilndo in yomconteinplation aealing b»'yoml ^*'' tlie Ist ol' Sopteiiiber? A. No: I would |not| miy that it coiiteiiiplate*! MoaliiiK beyond that time. It t-ontemplated Healing as long as lie could remain in the sea for weather and provisions, V«u will understand that we usually ])ut provisions on board in case they met with bad weather coming home. They are not going to starve. This testimony hwirs upon nil the testimony ii for what time diSeptembei'. I jienerally allowed to leave IJering Sea about the 1st of September or the last of August. . '.e said: < . What time did you leave that year.' A, 1 left there some time toward the end of August. (i). The fact is that that season you hunted in the .sea about the nsual time ? A. Yes. Q. How late in August did you leave? A. About the l.'.'»th of August, as far as I can remember. Q. Yon never were in there later than the 2.">th of August? A. I do not think so. That was the last year I was in the ])ering Sea. R.. 773, line 11. R., 770, 35. line THK PATHFINDER. 421 1{.,7()>*, line ,,li.,"(W. liiipl. Q. Tliatwas tin- latent time you were ever in Bering Sea — tlie :J'itli of Aiij/unt.' A. Yes; toward the last days of Aufrust sonieuliere. Tliis witness tcstitied tliat it todk five or six davs for the I'fithjiiidrr to reach Uuimak Pass after she heji-an lier lioinewanl voyaj:'*' on tlie 2!)th ilay of July. Takiiiji' tliese five or six d lys fruiii tlie Ist (hiv of Se|)teinl)er, when tlie witiuss testified that he had calculated to leave the sea in 1889, and the date of the termination of the hnntiny operations of the I'dfhjiiiilri- is lixeil at Anjiiist 2.'). The Piith finder was coiistrncted in 1^79, and the j.;,. r,,, ,; j, reyisten'd tonnaji'e is 6(1. (>'_*. <•''"'", No. 'I'he dania() seal skins, taken after ihe seizure, shoidd lie deducted. '['here is no evideiu'c in the I'ecord to justifv the claim i'or "time and expeii--"' of ownci', >;2(M»." and n(» testimony is cited from die ivcord in the Ar^^ii- ment on behalf of (Jreat Hritaiu. 'i'hc claim for "le<;al exiieiises. >>2 "id." rests uiion the same liasis as the claim for Uelyea's fees in all the case> William ^luusie testiiicd reiiardinn' the nature otu., 139, nu his aj^'i'cement with iJelyea. ^'''' 'i'his vessel commenced liuntiuii- in the sea the 1st day of dul\', and contimie(l without inteiTU|itioii until the nuirnin^itif the "jyth of duly, when she had taken S,");") seal skins, makinji' her n\eraue catch durin<, seized the ve.ssel on the lltli(hi\- of .Inly, id)(>nt 12 o'cluek. Scventy-.six .^cid skins, one rifle, jnid the s|tears AriiU- nient, and the value of the skins sci/cd. The valne of the skins taken after the sciznre shonlil be dednctiMl from thi' charter \ahie. In estimating;' the charter valne of a vessel ' the period. The llldr/,- l)}(iititni' station. The value of the provisi7. lino .">: li'.,17tW, lill(Ni."i; Kx. llli, (1. B.; Claiiii Ni). Kxliibits, pp. ;iHl : K., I'tili, line U., 17lW,lim'.s i;.. ion, line -'.->; U..8ir:, lire 11 H., 178(1, lim- 2! I. R.. 17S1, line 123 ■ ■■■' m 424 THE BLACK DIAMOND AM) THE \AL\. i;.. i8:;8, 4;i. R., 1810. lilt. K., ixll, 15. •'"'" Tlic /.//// c'littTiMl Ut'i-iiif;' Si'ii, .Inly 2,'), lSS;i. Slic \v;is si'izcd hy the I'liiti'd States rcNCiiiU' cutter hneJUclxiid Rush on the (Jtli ilny ot' .Viij^iist. Three liiiii- (h-ed and thirty-three .skins and the hnntini;' s|iears liiu'wcre taken h\- the cntter. Tlie crew consisted of the caiitain. mate, .'5 wliite men. ;nid 2,") liuhans. The case ot' the chiimant was suhmitted on the allida\it of .Morris .Mo>s. "tlif iliili/ rrf/ishrcd (urm r." and Jolm Heilly, her captain. The Lilfi was onh'i'ed to jiroceed to Sitka. Her captain instead saih-d for \ ictoria. arri\ini:' at that port on the 1st day of Septendu-r, ISSD, Tliere is no e\ ideiice of any catch of seals niaih- l>\ the /,/'/// after hi'r seizure. Tliis claim is also one of partial loss, and the claim is foi- charter value of the vessel from the (Ith da\ of .Vuuust, ISSi), to tlie (dose of the seaiiuji' season, \n- unst I'll to Anii'ust L*."), heside the \iilne of 'MVd seal skills and the spears of the Indians. The claim made "tor illejial l)oardinii, search, and arrest of vessel, ^■J.iMtll." iind the similar claim made in the case ot the llhicl; l)iiiiiiiiiiil,v\\\\ not lie allowed. The allowance of any dama;.;-es in the nature ofpuni- ti\ I' damauts ajiiiinst a (io\crnment actinia' in entire li'ood taith has lieeii disiaissed at leiiji'th in another part ot' the Ari;imient. The items, "i?elyea's hill, >^'1')^K" "personal expenses and troiilde of owner, '^■J(K)," in these cases, are iili>olutel\ unsupported 1)\ e\ ideiice. There was no lestimoUN of a con- tinueiit contract, even, with Mr. Uelyea re;^ardinji eithi'r claim, and no e\ ideiice was adduced tending' to show that the ow iier or his a;^eiit j;a\(' any time or expended an\ money in connection with either claim. The riiited States assert that .\Iexander l'"rank, a citizen of the I'liiteil States ot' America, and a resident of the city of San Fraiiciso, wiis the owner of the llliicl: ItiiniiDiiil and the /.ili/ at the time of their seiz- THE ULACK DIAMOND AM> llir, l,ll,Y. lire, illld rllllt 11(1 (1; Iliiili ( 'oiiniiissiini iiii;ij.:t's ciiii lie iiuni'dcd liiiii l(\ tlii^ licsc cliiinis iirc |ircsciilc(| m the uiiiiic .f M (irri> Muss, "Ihc fiy'islnid ii/nifi." .Mnrris Moss ilii'il Sdliic yciU's jij^n. No l-c|il'csciitiiti\ f ni liis cstiltf w ;is |ircs- ciit ;it \ ictoriii ns w clainiiiiit Ix'torc llic ( '(iniiuission. lie urnhiit' liruccciliiu .1 lii> -tillc ilt \' ictnriil i;.. L'ddi. li contain no «<''l .M \\e are ill. mill ire liitn pnnil I lint • III' MiirriK .1/(/,v.v. OSS, ipadc a> a I la ;is fori.'.. '■"IS. li tlic claim of the Lil/i. and liis al1id,i\it lilc(l in con- nection witli tlie claim of tlie ll/inl. /liiniiiu/il \H-['i>vr \\\r 'ri'iliiinal of .\i'iiitration at l'aii>. coni.iiiifd in [laia- ;:ni|ili 1 of each atlidax it tlw statement, "l am a Hrit- is h siihject li\ iiirtli. and the ihili/ n ii'ish nil iiiriicr oi the schooner A/7// {lllml: llidiiiuinh df the port ot' \'ictoria aforesaid." Alexander {''raiih was the .-iil\ \\iines> exaiiiined in these two claims, and le n ;♦• called 1(\ telc'^ram Iroiii San I'Vaiicisco. w U-re he res^ides. and examined on the last da\ ot tIm- j*<->»»iii.*n aif \ iworia The t( stimonv •»!' rllto* w iiiiw>»»» i*- l»»»i*4'. and a careful I'eadiii}.;' thereof n: conw;i.t-f-tit>"( w 'nttii the >-vhiliits relat- iiiii' to tlicM- el,iiini» w ill! *r*rii*>l rJi*' liiyli'* 'iniiiiiission- t'rs that he was tli. ••« i;,. www w»-ev.»# rt (ii«M Mi - \\v<»st«'fl*« i)fi. tfliie til lie d' th e seizure. aii .»fA«inl««»ll i^w ( I rea'f IJritain had in i..o otiiel' exideiiee wiis ollereil. I'xl'ii'iVif s' ''"' '*'" "t "^i'lts it ini_\ such liill ot' sale e\-ei' existeil. p •iTii. is iiot in evidence. The register is onl\' )MMnia taeie e\ idence ot' ownership. The qnestion of the ownership of the ll/in/.- hm- iiiiiiiil and the I/ilif will lie considereil ;ir the same time. Tin- facts that estaltlish .\le.\andei- Frank's ownership of one e(piall\' demonstrate h's ow nership ot' the tthiT. In the xcar 1SS7 Alexander I'lank and one dacoli dntman were partners in Inisiiiess in the cit\ of X'ir- toria, owiiinir three tradini;- stations on tlie west cojisi of \'ancou\cr Island, and o|ieratinL;' three >choonei's in the sealing l)nsiness — the.h/'/'. AlUnl .|(Ao;/>-, and the liliiik DitniKiinl. 'V- s'!'iiii'rll dacoli (inlman died al)out the 1st ot' .\pril, jss?. Nm. s. |i. ()ii tile Till of Xovemhf'r, ISSS, I: ■,, ■ . of ailministra- '^" tioii of his estate were issued ti .'ii .ander Frank, who, as administrator, made and tiled atlldavits relat- ing' to the aiiministratioii of the estate, all of which are coiitaiueil in Fxhiiiit No. 10, Fniteij States claim No. 8, jiaji'es "JOT to ■_'!•!, iiii liisixc. The Fnited States contend that on cross-examina- tion Frank wa.- shown to he entir(d\' iinw(irtli\ ol helief, and his testimony on dii'ect examination can have no weight liet'ore this !ii;^li ( 'ommis>ion. K'., UMKi, line {). Voii ilid own at one time a lialt' iiitcrt'st in tlic /,////, and ■*•*■ yon (liil own at one time a half inti'ii'st in tin' lUaik Din- iiioihK tlid ytin not .' A. 1 ili(l not own llicin; I claiiin'il to own an intcicst in tlicin. ^). \\\ tliat yon mean lliat yon wcrt' not the rcfiistercil (tw iier ? A. I chiinicd to own an intort'st in llicin to ]irot<'*',t my interest when I I'oiind that tlic liiiii was insolvi'iit. Thcro was noliody to dispute my ri^iit in tliciii. . I aslicd you if tliey weic |iarlncrsiiip property >v licii you were in partiit'iship with .lacoh (Intmanf A. 'I'hey were not. (^). And yon and (inlman iii-ver Jointly owned tlie /.//// and tlie /)'/(((■/,■ hianioiid .' Iiiliits: l'.\ N.i.ln.r.S rliiiiii Nil S . V.\ lilliits, p •Jll", lllM'.M IIIE lil.ACK DIAMd.M) ANH TIIK l.II.V. 42; A. lie bouKliI tlieiii. i). N(i\\ . aiisut'i' tlic qiit'stiiiii. (lid you or did you not;' A. I tell .\(Mi we iii'Ncr owned tlieni jointly. It wiis iilter his (It'iitli wlicn I cliiiMicd tlicin. Inivin;: lo'iiid out that lie was lost, to proti'ct my iiitevcst. Tlic iiitnic of till- Aljiiil ti) Li/ii until the •_'.")tli il;i\ id \(i(tiiis was nut chanLiiM isss. AriiuniiMit in iiclialt' (d' (i.'cat liritain adin.ls rank was (M|nall\ intcrcslcil in tin- her sciz- lat adniis- i; \ ll i 1m t ^ li(llti>lU I that AlcxandiT !• Ncntui'c id' till' A//rril Ailiuus at tlii' time id' lii.'h t nrc in lSS(.anil the (■xkIciicc hjihiiw siini is made is \\\r al'liihiNit ui' Mofit/, ( intiiiaii, ihc I- ^ lii.'.'i ' ' siilc licir id' ,lacnl) (Jiitnian. that thi- A/Jml Ailmiis j'i inis ii/riiril 1)1/ i'l/i siiiil Jinn (d' cxliiliits, line .")((), statino-; I. Thiit lor two years and ni)waril one dacob (iiitiiian had. until the date of his sniiposed death, heveinaf'ter men- tioned, been in ])artnershi|i with me in a trade or business carried on by us at .lohnsmi street, in the said city ol' \'ic- toria. iradiiifi- in the name or style of (liitinaii >S; I'"rank, as men liaiits and Indian traders. L'l-J, li 10. /" •J. That in tl ■-/ th le course ol oiu' said Imsiness iiiir sitK I tir, iiixsoiniil liner sfliiiiiiiii's. 'I'lial in the month of I'dniiary in the present y^ar the said .laiob (oitman sailed I'iimii the port of Victoria, Ilritish Colnmbia. albiesaiil, ill one of the name id the lUnck IHniiiiuiil. our st'iti ncliiiDiii r.s. known by 11 r also made an alliila\ it on the -Jlst i)\' Octidicr i:\iiiiiiis I' 1 .'. ]i. :'iis, lino ;!!.'. The deceased is entitled to (Uie half interest in the follow- 4 -is THE HLACK DIAMOND AND TIIIC LILV. ill""' piDpeitit's: Itritisli scliODiicr Itlach- DiamomL liritish sclnioner /wV//. Tlic t('stiiii()ii\- ot' Frank, where he stated, "I toM \(>ii we never owium 1 tl lem joint! n wi after (lea th when 1 clainieil tlieni," lias lieen citeil, l)nt tl lese atliihivits, made to he tiled in tlie records ot' the pro- l)ate proceedings ot' tlu- estate ot'dacol) (intinan, ami claims let not made for the iiiiriiose of sa\ini:' to himself j|onl'(.Miltinif 0\('l' ^ "O.OOO. clearh estal)lisli the f that at ihat time, nnintiiieiiced li\- tl temptation ot' li'ain, this witness swore that he o\\ iied one-half of th lUiii/i- ItiiinioKil and one-half of the Ijhi: tor he sa\s man was m i)artnei'sliiu wi thl inn, and lan consiste(| m a one-lial II e. I)eini:' that .Ir.col) (int that the estatt- of ,la<-ol) ( iiitn interest in the propert\df such partnerslii| the only other partner, conse(iuentl\' owned the other half of these schooners: and he distinctlv sa\s in the atlidavit, (|Uoted t'rom exhiliits, pai^c "Jld. "That in the conrse of onr said hnsiiiess . And at the same time yon were makiiifj- that atlidavit you knew that .laeol) (intnnni owued all of them ? A. I claimed the othei lialf to protect my interest- to ;iet some of the money I had to pay out. Keft'vrin^ to the atlidavit which he did make, nid which has lieeii (jiioteil, this witness is shown to haxc iiosi tivtd \' swo I'll that ,Iacol» (iiitman owned une-l lai >f the schooners llhicl,- It KUIiniK I and Lihh and that THli HLACK DIAMOND AND THE LILY. 42'.l 111', tlic other piirfiicr in tlic tinii of (TiitiiiiU! it Fnilik. owiicfl the (itli'T hfilt'. He set ii|) iio ehiiiii in the arti(hi\its thiit he v.iis eiitith'd in diie-lniU' ti,.' ves- sels fis ;i creditor, hikI in tiict tlie statement of iialtihties sliows that he was not a creditor. 'I'he witness was fintiier cross-examined: Q. 1)1(1 you swear to tlic court tliat .Jacob (lufniaM owned I>'.. liHtn, lim- half of the shii) when you knew that he owned it all .' i- A. That is what 1 r.' A. 1 did not. I ere th lie witness himselt admits niakiiin a false atH(hivit, hnt in onh'r to protect his interests at the |)resent tinu'. One .Moritz (iiitman, the only heir of dacoi) (Jut- man, swore that (iiitman t<: Frank owned the J/fml Aihniis. lie cither swore to the triitli, or he swore to what Alexander Frank had told him, and if Frank did not own the half interest in the Alfird Adaiiis he defrauded this heir, and is defraudiiif^- him to-day, l)ecau.se the idaiiii of the Alln-il Ailmn.^, Xo. X, is |)re- seiited to this llinh Commission in tlie name of (Jut- man it Frank. When aske(l as to whether the statements in the affidavits were true or not, the witness rei)lied that he''- n*:"'- li"f sU])j)o.sed 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 lilai/,' Uiaiiioiiil against the Government of the Fuited States, and replied. "W.'ll, no; I will not swear that," and then stated, ".Morris Moss is dead, you will recollect." lie was asked if !>' .miHMiiK'H the estate of Mcu'ris .Mo.ss owned the (daim of the '"•'-•"■' ll/iii/,- /HiiiihiikI -Aixiuust the I 'nited States, and answered, "I will not swear to it." ■ Hi -hi 480 TIIK BLACK DIAMOXIJ AM> THE LIl.V. '■'^.'.'.'.''i!*'- „i.' .M(>iit/.(iiiniiiin,iil>r(itlu-i-nt'siiifl(l('cciis(Ml,liict)ltGiit- iiiiin, WHS. ii|MHi liis MttiiiniiiL;' his iiiiijoritx , niiiiniutcd :.'is. liiiriu Kxlnliits. p, •Ji:i. admiiiisti'iKMr in the |il;icc ot AIcxmimIit l''i'iuik. Il( W 11^ lie i>iil\ ICI r (if ttif (IcccMscd. iiiid lUiidc iiii iitlidinit oil the Kill diiy ut' Xnvciulicr, ISSS. in wliidi is (•erty. and elicets of tin' said .laeoltiJui the i'niviiie*' ot IJrilisli Cohinibia consists iiil.'*\,')Oi)i sidiotnier /w7//. *l..'iM'ts (d' till hi'iii «ii' (iiitmau i*c rraiik. and in w lllcll I inlcroi : :iiiii\ i--iiaiiifil ilfccascii (iwiicd oiic-nai ^rili iiilK T lllluL- II III mniii /.>>1.5lHl : s(d KHiliel' lOO. etc.. iiainmi: other iii'o|iert' 'This atlidavit of Morit/. < Mitnian that (iiitniaii i\: 1' raids owned the .Ufnil .lilmus i> false, of the tcsti- nioiiv ot Ah'Naiider l''ranU that Ik- iic\'er ow iied the hill jointlx with III) ( •iitinan fal Kxliiliil.--. [1. L'lit. line:;:;. .Nlorit/. (iiitiiian. a^ adiniiiisti'ator, made an allicbivit thcitth d' Noveinlicr. JSSH. in wliicli he state THE BLACK UIAMONl) AND THK LILY. 431 Al eXciiKk'r raiil- tliiit 111' liiid rt'CfiviMl Mil ort'cr from "f(ir the purcliiisi! ot' the iiitcirst of siiid .lacol) (Jut- iiiMi!, ilc'cciiscd, ill the iissots of the siiid tiriii (cxccpt- in^2<»,433 iijj'.iiiist the Tiiited Stiitcs iuithorities), tlie coiisidcnitioii otfcred liy the said Alexniidcr Frank for sucli |mrciiase l)eiii<>' the assuiiiption by the said AlexamU'i- Frank of all the lialiilities of the said tiriii." And in the same aHi(hivit he stated "tliat such account shows an excess of the hahilities over the assets to the amount of SSVJ!).,")7." Attached to this ailidavit is a statement of the assets of said estate, iuchKhnii' the Ullit, title, and interest of him, the said Moritz (Jutman, as the administrator of the estate and effects of the said .lacol) (iutman in and to all and sinoular the property in fhe tirst schedule heret(» contained of what nature soever," was exe- ; < 4;?2 THK IILACK DIAMOND ANIi TIIK LILY. i:x.. ,. lilir:!!). :«l!i. I i 11 <■ L'!t. •«'"(Mit('(l (.11 tlic Ntli of Xovciiilifr, 1NS8, iUid Hied with tlicrc^istfr-jiciHM'iiliit X'ictorifi on tlu' titliot' Xovciiilicr. that liill of sfilf is th;' foMowiii';' stntc- Exhiliits. |i. C.iitllil iiiciit: Ai led ill 11(1 whcrciis it is c ■itiiiiiitcd that the liahili- K \ h i lii t s. 1M..--'1-M.'i:!. tics of till' said |)iirtii('i'shi]) cxcci'd the assets thereof l»y the Slim of ns!I!I.-)7." Ill the oriiiiiial schethde from w iiicli tliis liahiiice of >^s;);i.r)7 was olitained. viz. tiie sche(hiU' tileil in the proliate court, the llhicl: I) nniitiiiil and tlic l/ihr.wv li\ name set oiitand iii\'eiitoi'i<'d at the Slim of >^l,r»(Ml eacli. and till total Slim of s,'5,u(Hl is i'c(|iiirc(l to ma ike tl as: icts of tile ]iartiu rslii|» inventory a t th le <17.32;).'-".l. it will licfin-thcroliscrvcd that thclialiil- ities. asstatdl in that sclicdiilc,arc >^lS,2'J-_'.S(;,and that the lialaiicc is :>,Sil!l.57. the same amoinits stati'il as the halaiicc and the total liahilities in the hill oi' sale from Moritz ( Jiitman to Alexander Frank, datcil Xoveiiilicr 8. and liled tin- Htli day of Xo\('ni1»cr. Accordin^iK', when the traiist'cr was made from Morit/. (iiitman to Alexander Frank, the schooner //A^c/r h'lii- I and the schooner L'lhi were nccessarilv iiududed, IIHllKl nd Alexander Frank therefore liecame, on the fStI I ot X ovem lier, the owner of the schooner llldck I) nniKuiil aiK th .ftl le owner ot the sclioonei /.;//; This is the oiilv hill of sale in e\ idciice of a trans- fer of the Lilf) and llhul: IHiniiciiil. It is a hill of sale to he recorded with the reuister-yeiieral and therefor I) '(■ does iio t h \- nai lie set out the /wVvand llhnl,- KIIIHIIII I. hut the amounts show comdiisiveh that the two ships were iiududed in the transfe h le law does not reijUire a sliip to lie re"istere(i u order to he transt'erred he reiiistr\' "ives certain pri\ ile;^('s to diin: lait tl le owiiersliii) as ( dis(d osed hv tl le reii'ister is not conclusive. ( )ne |iersoii may own a ship and have her reiiistere(l m the name ot th anotliei Attl le tll.le ( i|' this transfer Alexander j-'rank was an American citi/.eii and could not olitain the re"'istr\' of the two \cssels in his name. Till'. MLACK DIAMOND AND I'lIK LILY. 433 M nritzdiitiiiiiii tcstiticd: "1 Ict't N'icf nrifi sonic tiiiii (iisiiics.- 11., i:iii: ill ISSS, jind Alcxiiiidcr Friiiik coiitiiiucd tlic 1 Mild of con !•.><(' kc|)t tlic liooks;" iiinl tli.-it lie Wiisiil tour yciirs from N'ictoriii. Fi-iiiikdid not desire, t tore, to lejive tlie sliii)s re,i;istered in the iiiiiiie o stiite of .liieoh (iiitniiiii, lieciinse .Moritz (iiitiiifiii, tli >.seiit liere- f the iidiiiinistrjitor, wiis h'iivin>-' the citx' t or ii jieridd ot' tonr yeiirs. Frnnk iiccor(nnnl\ nuuh- use of tiie iiiniu t .Morris .Moss foi' the |)nr|iose df re<>istere(| h!i\ nil!' til hiji I lie .M. '{• >rrc on tile Kitli reiiisTi'reci in tiie iiiinie of .Mori IS (lilV .f N oN'einlie INSH. Tliiit Morit/ (Jntniiiii Iwid lio title to tiie I.lli/ nni] lilml; hiiniiniid Mt tliiit tin le IS d;ited Xoveiiilier 8, ISS.S, wliicli t sliowii i»\ tlie itili of sill \'('sse to exiiiiiler • riinl the owiiersliii) < 'I'l 'i'h .f .M rjiiisferred tl i»iil\' e\i(leii('e lese orris M OSS Ir tl le eiitrv on th )f register. I Ins entry is not siitficieiit to outweiiih th imi .Moritz (Jiit- hill of Side, introduced in evidence, fi iiKiii to .Mexiinder Friiiik; find jit the time (.f its coii- veyiince the prohjite court liiid iie\ cr mithorzed .Moritz (JiitniJiii to Illlike such convevitiice. cnilter, 1S88, the trniisfer ovemher, iiuil On the 14th diiy of Nov i\ iii<>' lu'cii iniide on the Stii dti\ ctf X tli( hill of silk recordeil on the ittli diiv of X ox'emher, .Moritz (iiitiniin hied in the Siipr e ('oiirt of Uritish l«' Colnmhiii, in prohnte, his iiHidiivit, diited X !•, ISS.S: entered: 18."ili, line eiiriu"- WIIS hud imd the fol o\ciiiher owmi;' order II. IJlxm hearing an application on l)eiiiilt' of Moritz Giitinaii, K'., if<.'>!i, liae tiic adiniiiistrator of tlio estate of Jaiiob (Intman, decea.sed! and ni)oii reading tiie aHidavit of tlie said Moritz (Mitnian, (iled lierein on tlie 14tli day of November, ISSS, 1 do order tliat tiie .said Moritz (iutinan, the ,said adininistratin-. he at lib- erty to .sell, convey, assign, and otherwi.se as.snre to Alex under Frank, of the city of Victoria, in the Province of British Columbia, all the real and per.sonal estate and eHect.s of theabove-named ,labob Gutiiian, decea.sed, of the Trovincc of British Colinnbia(e.xcepting thereout theclainiof the.l//W'(/ Ailums against the (Jovernmcnt of the United States). II s "w .■>o. wn 4;{4 Tin: IlLACK DIAMUNK ANIJ THK LILY. ! i,'l That ill consideration ol tlii' (•oiiveyaiice, assignment, or otlHT assmaiKH' to be made under liiis order, the said Ahx ander I'raniv do assume and pay all the delits and liabilitiis of the said liiiii of CTiitiiian vV Frank, nliich deiits and lia hilities are jiai liiularly set out in an exhibit marked A, an- nexed to the said allidavit of the said Morit/ Giitinan, and therein appear to amount to the smii of sJIS.'JliJ.Sli, and that the said Alexander Frank do enter into seeurily to the amonni of •"'IS.L'L'i'.SfJ to indemnify the estate and effects of the said .laeol> (iiitinan. ., iL'-'M, line ness ot' reiiri'sentiny pureliasi-rs of s( (10. ' !{., lL':il. till H., ij:ti. 10. IS enyayed in the liii si- ll sk \\\^ It th port of \"ictoria, and was also en^aiicd in the hiisiness of oiitiittin^' vessels as a<;vnt for other parties. 'ii"' 'I'he lliii'li Coininissioners are advised that it is not iin iniroiniuon practice t \'ictoria for si tirel v or iiartiv owned hv American citi/eiis, to 1 lips, en )e re"istered ii the name of suhjects of ( Jreat IJritain. ( "liarles Spriiij^' swore in the afKdavits lih-d at Paris that he was the sole owner of the Oiiirard and t\\v F((r()iiiifr, and the te.sti- luonv in this Record disclo.ses that .Mexainh'r .McLean, an .Vmericaii citizen, owned one-half <»f each of lliost' \-esse Will iani .Mnnsie made no reference in tin artidavit Hied at I'aris to the interest of Hechtel in his ship, altliouo'h it is now admitted that liechtel was e(|ually interested in the venture of the I'dtlijiiidn- in ihe years 18S1I and ISDO. Theodore I.uhhe testilie\V lltT nf the AIDcil Jihiill-' :iltliniii.li tilt' slii]i wiis rc;;istcrc«l in tlic iiimic < -fficult (Jutiiiiin. I'iitrick llickc\- tcstiticd tlmt I •f WHS liiilt" owner of the ('(irnl iiilniii ulicn tcrcd ill tlic iiiiiiic of Doiitilil l'r(|iiliiiit. ic It' Wiis rco'is- H ifiinii;^- upon the ow iicrsiiii) of AlfXiiiidci- Kniiiiv, i;., iTKo, li,,,. ('fij)tfiiii 'I'lioiiiiis, ill cliiiroc of tlic lllock niiiiiHiitil t)U tliis voviiMc, tcstilicd tliiit lie took provisions olf iit Alexjiiidcr Fniiik's triidiiii; stiitioii upon his return from iieriiiji' Scji : iiiid this witness further testiiied tliiit Alcxiiiider Fnink wiis idioiird the ll/iu/,- Didiiimtd at the rime she left \'ictoriii for her voNjiye to Ueriii"' .'I. Sea in the Near l«s:i. and made the trip to the west coast of \'aiicoii\ cr Island. The It/dcl,- D'khikhiiI iiiiide a trip to I'Vank's lisliiiii;- ij., nsi, n station on (^(iiecii Charlottes Islands after Icaviii;;' Ueriii^' Scii in the year ISS'J, Miid was there loaded with a car"!! licloiiiiino' to Frank. ;is. Althonyh the Alfml A, la HIS was reiiistcrcil in the '■■x'l i'» ' '», L'07,lino3-'. name of Jiicoli (Jiitman, Alexander Frank held anxh mort^ v 4^ \ \ ^ ;\ 23 WIST MAIN STRUT WIBSTH.N.Y. MSM (716)I72-4S03 '4^ «* ■\ 480 THE HLAl'K DIAMOND AND THE LILY. 'I'liis tJil(l»',|ir»'|tjir»'(| by (!ol lector Milne, slmws mi its tiirc tiiiit it Wiisji tiiltlc prcpnn-d with rcterciicf tntlic "wr"' '"" "'^^"*^'''^'''l' "* ^•"^'^•'I'^i '>'"! ""♦ •''*' rejiistcrcfj owners, lieciiusi- ill (iiie instiUUH' it is stilted tiiiit the owners ol the Aiiioni w«'re not known. Ut course ti>e vessel iniist hiive lieeii rejiisten-d in tlu- iiiinie of .s,.ine per- soii; iiiid ii;iiiiii in the t;il»le it is stiiteil tlint liidiiuis owned ciTtJiiii vessels and «'ertiiiii coninierciid coiii|iii- iiies owned y Captain Shepard. The hoard- '"• ino- n«''cer directe(l the removal of 418 skins, one hieeci. -loading;' shotjiun, one inuzy.!edoadin;i' sliot;iun, i>'.. iir.o, line and eleven spears to the /{iilianl /,'itsli. ''"■ The schooner was i»r1, line .Ml. 438 THE MINNIE. 1; (}. Voii iiiiule soiiiL' ol' tlioso spetirH tlie iii(;Iit of tlitt day ynii weru .sei/.e*l, did yon not ! A. Yes, tlu' vi'ry saiiH' ni^lit, and tlie rt-st in tin- inorniny. if. Ami tliv licit iiioniiiiij i/i.ii romiiieiifeil ni'iiliiiy im tliniitjli iiotlilnii liml liiipiii'iifil.' A. Tliitt in irliiit »(•(■ fliil. 'riu'odoiM' .Mn^iiit'scii, mate ot till' vessel at tlic tiiiic oftlic seizure. i»ii direct exaininatinii, testiti«Ml: R., 1437, line if. AI'tiM- heinjr ordcri'd out had you any conversation with '■^T- th«' master of your vessel as to wiiat yon wouhl do? A. Yes; we talked the matter over, an' of tli (lav (d tile seizure, the vessel pinceeded to tlie inirtli- \vard,"aiid tlieii corrects tliestateiiieut "to the uortli- east ; iiKl iiiaKes a tiirtli «'r statement: K.^ I ins, liiK' tf. Ou the day t'ollowiiig, where did you proceed? ^- A. \\ Cut ii|> to tiie northward; it dropped calm, and tiiey lowered the next morning, and they went out with their ;uns. Captain .lacohseii was fixing up spears lor them wliiio thev were out. The Indians wasn't out verv lou' Th I?., 1438, line St 3. I.'., ll.-.l, :^i. came liack again; they couldn't lind any seals, and they wasn't much use to the sliot;;uiis. lie then states that alter they were ordered out the\ steered u|t to the northeast, prohahlv 20 iiiih's. lowered the next day, and ji'ot a tew seals. "I can't renieiiiher how niaiiv, prohalily \X or :.'(>." MajiiK'seii also states that prior to the dat*- ol" the izurethe hunters made the larj>est catch of the vov- a;i'e, and )»laces the iiumher at 74. .lacoliseii, on the ''"" contrary, savs that the da v after the seizure tin- hunters H.. nil. 'UK line i;.. Ili:i. 12. took .")0 seafs and KG on the next day. Captain .lacolis«-n stated that he had no lo<>' of the voya;i'e to produce, ami, iiotwitlistaiidin;^' the fact that he secured hetter results after the wamiiiji' than hefiuv, endeavors to estjihlish that he left tlu' "hest sealiii;;- ;>niuiids." line il. And in the meantime (after the seizure and before leav- ing the sea) you sealeti .' 1 THK MINNIE. 439 A. Yes; ii]> to a tew days hel'or*' we ctiine out we wealed right aloii;;. Milt lie siivs tlic sciils wen- sciittcriiiji iiii(>; between .'Ml and 50, anyhow. His attt'iitioii \V!is tlicii ciillcfl totlic iillifhivit jniiitcMl in tiu' Amcricim Kcpriiit id' tlic I'aris Pn >(•(•»■(! iii<>s, vol. "), |i. ,"{G(>, aiid lie was askcil it" lie iidmI*' an alH- (lavit rontaipiiiff tlic statcuicnt, "I then conclinlcil I would not f>M t<» Sitka, l)nt wouM continiu- niv V(»v- a;>t'. That niiriit wc niadc suinc new spears, and next iiiornin' Sea. The testimony of ('a|)tain .lacohscn. Itearinj:' n|»on the clianj;c of position of his shij) after the ,sci/.ure, has little wei<>lit when the ori;iiiial atHilavit made l)v him on tlie "Jd day of Septcinl»cr. Issy, cuntaiiis no mention of the fact that he had altaiidoned the seal- 'm*X firounds or clian'h nothinji' had happened." Thv aHidavit Hied hy this claimant at l*aris con- tains tliis statement : An hour or so after the h'lixli went away the man left iii^'"'- ''I'r*''*' charge showed me his written instructions from Captain Kepru'it Shepard, of the W*>/ifl>7/ AJ««/(, As nearly as I can remeni- Pioceeil- ii.-ii. 440 TIIK Ml.NMi:. 1*11 lU in>{»oiTri- her the directioiiH. lie was to di'liver tlie Mhtiiic to tlie riiitod •?"!["' "'states aiithurities at Sitka, aiitl jdace her captain, iii.vm'H', tini'i' '»t""*l irate iiuiler arrest. / nl oiur mtnir mt ttnj mind to hIhii irlirvf I mis unil rtitch what nenln I coulil. Next iiiorniii^; I made new speurs for the Indians and sent them nut sealing. 1 rcnndned in the sea up to the Kith of Aujfust t'ollowing, and in that time tiot KS(> seals and >S sea otters. I did not see anything; of the li'iiHli after the ir»th of .Inly. Iliiil Ciiptiiiii .lacohsfii at that time cniu'civotl the idea ot" inaKiiifi' claim oii tlit* jiToiiinl that he chaiijicil liis pusitiuii, ri-fcrciicc wuiiM have liccii iiukIc to tlie tiU't in tliat aHiilavit: ami in ciiiiiiiioiitiuo' on the Jiis4' that lu' wonld have said that lie went utl' to an nnoccupii'd any the iinmlH-r of days occupied in iiiakiii<>' the «-atcli, viz, IS, fiives a daily catch id" nearly 1;*). .\fter the seizure, ami up to the time of leavin}^' l{.,_^iiit!, lii>«t|„. s,.a, the Miiniir took 4KS skins, and limited thirty- two ilays, making I -r avi'ra^'C catch over 15 seals a day. Assuredly, when the effect of ieavin"' "the liest sealin;^' ^^rouiids" is to produce ludter results than when oc«'Ui»yin(' Ill II nositioti to ltiis«' ii cliiiiii tor tliiliiii^ics upon tlic til; f tlijit !i cliiiii;-'!' of jiositioii wiis lllilllc. Tlio cfiptjiiii tfstiticd: if. For what season did you outlit tin- schooner? k 14 lo line A. I intended to stay to tlie middle of September; t'nmi t'io. ' tlie l(»th to the middle, in lU-riiif; Sea. I stayed tliere the year before in a small schooner, and in th'* schooner 1 was not scared of the wind and weather. Hut on cross-cxiiiiiiii.itioii In- tfst':ii«'(l that Ik- pnic- '{•• "H". line ticiillv jiltiiiuloiKMl sciiliii;;- ill tlic ycjir ISSK, '«i'i-'"t, terms of the modus vivendi of that v.-ar. is worthy ^(^^ ot note. ■ ■ in IS'Jl. 'i'he British (iovt'iiinieiit s"iit commissioners to Victoria to pay the sealers for the losses incurred l»v reason of l»eiii;i' deprived of hiintino' in the sea in the yearlS!H,aiid this witness received from the (iov- ernment id' (treat Hritain the sum of n.s.Oimi for dam- "•• '"7. line a<;cs surtered Ity tiia .■^ihnoiins. '"' No testimony is found in the record to hase the (daim for "time and expense of owner, n20(»," upon. The (Jovernment of the Tnited States is lialile for the charter value of the M'uiuir from the ITfli dav of Auo'ust to the -.'(ttli or 25tli of Au«-ust, and for" the viihie of 41 S seal skins, ■_> onus, and the spears of the Indians. » s 56 r 'XVk ' t the triumph. Claim No. 18. Tlic only witiu's."* wild liiul a ju'iNonal kiiowlcdiii- of the orniiTt'iu'cs in Hcriiio- Scm rcliitiii;^- ti tlu' Wiini- iiifjl' of tl»' 7'/v'»my'// WHS ( 'iijit. Ihiiiifl Nlrl.cjiii. His "•io."*'""''nHi(liivit. iiiii(U- oil the 8tli «n the 11th (lay of .Inly, who told him that if he s'loiild af N'ictoria. No |iro|ierty was taken !iy the cutter, and her oiil\ claim. Iieside the usual items tor '•ille;:al Ixianlin,;-, leiiiil e\|ienses. and ex|ieiise of uw iier." is for |iros|(e( - tive catch K. ( '. Raker, one of the owners of the 7V//(///y*A. testilied on direct cNaminatioii re;:iirdin«(•«(' / ((/(( not rrillj/ pimitire as to iiintriit it wasdis- tinctly understood between him and inyKelt' that he wunhl 442 THE TRIUMPH. ii'imiiii tlu'i« to tlM' v«'iy liiHt of tlu' HeiiHon thiit lit> i-onld catch st'iils, .soastoiisfi'itaiii, if |Missibln, liow long that wa- son really ilul and coiilil last. (}. VVas then' any iinilt'istinMlinK at all to that cttwt? A. Yps; III' was to rt-niain tlnMV until late in September. <^ That was fully uniliMstrnxl ? A. Fully unilcistood hctwt'i'n him anil mo. In fact hu wftiiti'il to know somethinj,' about what became of the Heals attcr they left the sea, including the Piibilof Islands. //,- inniti'il to tjo on n liltlv loi/niiv of ilixionrii to n cntaht i.vtfiit, ami fnitr Ihriii mitl inoliahiii >h> noiiir uniliiiii ill Ihr Hinnv lime. <;. It was uu-ntioucd between vou, or understood, that he could stay there until pretty late in September? A. Oh, yes. The previous year he had conu! back I to \ ictorial on the 10th of Septemi»er, and he had everything on board that would emible hiii? ti. stay there until the end of the year, for the matter of that. Upon this testiiiiiuiy in tin,' Argument for (Jivat Hritiiin a claim is madi- tor a si'iismi cxtt-nilino- to Octulii.r 1. It the .■'stiiiioiiy of an owner, who was iu-mt in Hcrin;;' .S|.ji, to tin"- i-th-ct that In- had instnictiMl his cnptaiii, who was a man of hui;:' i-xiicrii-nci' in tho sealing- husini'ss, to stay in tin- si-a as lati-as possihh', is to outwi-iyh till- |)ositi\i' stafi nu-iit of that captain that the si-alin^' season IcrminatiMJ towani the last of Aii;>nst, the opinions of all fhinkinj;- minds re;>ardino- the wei^iht to he ;:iM-n testimony of this natnre wiU he disre^-arded. .\jiain, if the statenu-nt of a witness interested in the resnlts. to the etfect that he instrncted his ca|>tain to j-o on "a little voyajic of discovery" to trace, if possihle. the seals when they left the IVihilof Islands to proceeil on their soiithwaril jonrne\ , and "prohahly do smne sealinji- at the same time," is to lie taken as a basis of estahlishin";- the dnration id" the sealin;-- voya«>(' in IJerinji' l^ca, a;iainst the testiinonv so clearly estaltli'.hintli of .\n;>iist, there would have l»een little need of examinin<>- to such •ireat length so many w itnessi-s concerning;' the iil<| Ih- niiitiiiii*-<| with pi'otit in Mcriii^i' Sni. <'ii|)t. hiinifl .MrL«'iiii, to wiiiiiii WHS iiitniHffd tli)- liftcniiiiiiitiiiii iit'tlif \' tlir voyii;:-!', iirtnril- iii;: to tlu' tt'stiiiiMiiy nf Miikcr liiiiis«>lt', who siiid. '• I would li*> ;;iii(|t'(n»y liis |-«'|M»rt lis til tlic ciiTllliisfiilircs wlifii lif W!(s til rt-tiirii :" wlini i|iii-stiiiiiiMl si.s tn Imw liiii;;' limitiii;;' niiilil Im> i-iiiitiiiiii-)|, stiitcil in mi iilliilii- vit, iiifiilc ill I.'^!I2 : nfriii;: St'ii hiintiiit; .sciisoii: I imiially «'iitt>r tlie Koriii^r S«'a iliiriiif; tlu* t'liri- |iiii't iit .Inly and l<'avi> the IumI of AiiKiiNt. Tli<> Hfa )i«>riiiiu>H (iHi i' of trying to raiil tint Islands, lint thcri' arc ho lew days that the sea is sniooih <'iioii};h to hunt alter Septeiiilier I tliat it does not pay to lenijiin any loniist. This iiiliiniiatiiiii. taki'ii diriTtly I'rinii tin- Imnks id' Cajdaiii .Mrl.i-aii. tii;ji-thrr with his statfiiii-iit that tlic scaliii;:- season rlost-s alioilt tin- hist id" .\ii;;iist, loii- rliisi\cl\' shows that the Ininliiiii \ii\a;ii' id the '///- iinif>li would have tcnninati'd at the iisiiid time, and that in deterininin;;' her eh.-irtei' value, no reason is I'oiind ill the exideiiee tor exteiidiii;:- the period diirili;: whieh she would have hunted lieymid the ordinai'N limit, lixed as lietweeii the ".'Htli and "Jfitli of .\ii;;iist. The mana^^iiiy owner id' the Ti iiim/ili had coiitrarte.l to sell to II. hielies iV: ( "o., of San Kraiicisni, the catch of the vessel for the year l.ss'l, at >i<;.L*'> for each skin delivered, and sold the catch made mi the viiya;;e to neriii;'- Sea at that (i^iiire. If there were aiiv conditions attached to the con- TiiK rKirMPii. 445 tnicf nt" II. Licltcs i\c i'n., flicy wdt' in ii |H)siti testinmny in the Uecord npnn which to Itase the iteMi>*. "le^ial and othi-r ex|ienses. X'2h{)" anil "time and expense nt' owner. >Sea and returned to \ictoria the Wll seaUUins taken. The himters had not lieeii settled with for this "•. H-'*- catch, and the ai mt liiially paid is not separated with reference to whether the moiic\- was pjiid for ser\ices performed on the voxa^t. to Meriiii:- Sea or for services in Merin^i' Sea and upon the leiiini \o\-li-. 1127, line '.\yn: Certainly the amount paid to hiiiiters was paid ""' foi- skins taken aiiddeli\ered to the owners, aiitl has no reference to the claim presented to this ('oiiimission. The owners of the 7'ni(iii/ili would Im- entitled to recover her charter \aliie for the period lietweeii the lltli day of duly and the -Jotli or 2.'ttli of .\ii^iist, estimated on the l»a.-«is stated in the |iortion of this Ar^iiinieiit relatin;;' to the measure of dama. i'tii'.'""' '"' WitlnMitMl»t)iiiiiiiytlu' roiisi'iililf tin- I'liittMl Stntc^. iiikI flic I'liifcil Stiitfs Mot liiiviiiy niiisiiitcil to Iii> tlil'KW iii;iiilV !ill(';;iiilic«' tn flicirC Mtvcriiiiifiit, .MrLffiii, li.,liM7, Unciiii tlif Kith iliiy ut' Ortnltt'i', IHSC, niiidf ii|)|)liniti courts, aiitl the fstaltlisln-il law ut' iiatimis Itfariii^ ii|iiiii tilt- t-iti/.t'iislii|i lit' .Mflit-aii, ami liis rii^lit tn rt'fiivcr tlainayt's I'nr an act ftminiitH'il in vinlatinii nt tJlc siivfri'i;;ii ri;;litsiit' tilt- ( iiiVf|-||iiiiMlt nt' flit- I'liiti'il Sfati's ami tlit- iniini('i|ial law nt' tlit- I'Diuitrv tn wliitli it is flaiiiifti 111' nwi'il allt';iiaiifi', liavf lit't-n lu'ri'tuiiiif ilisfiisscil at li'ii^tli ami tlif |iiisitinii nf tlu' rnifcil Statt's tiffined. r THE ARIEL. Cl-AIM No. 1!». Tlif A rill, ii v«'.xs('I ut" !H».;t. > nyistcrcfl tons, entered '''■• "nit, line iiiiiiiik i;..i'ii;i.iiiii'H Hciiiiy Sen on til*- l-.'rii l vest of the l'nl»ilot'„''".'.'J, IsIiiiKl.^: Iiiiiiti-il until 6 o'cloi k of tlic iiioniiiiy' of .liilv 8(». liiiviiMf scciin'il ii ilnit liiiu' MCt I iilskiii> for IiHlinn liiintft'.s. n >o;il, III 11 1 ji crew of 2"_* She CillTUMl i; llojits, 1 (• ciiiioi' to 1m' used ii.s ;i stern 1 wliitcN, 2 hxliiiiis. iniii ii riiilcr .liitc tlif aOtli «l;iy ol .Inly tlic l»ookof( . fain niickninn cmtiiins tins cntrv." niiidf jit the tin |{.. tlHi, lint' •JH. Ii.. I Hill, lines Ill) At (» ii. III. Aiiu'iimii ciiltfr h'nuli came al oii;rsi(h> ami .sent Ii.. \uvj, u (iniit'iM on Ixiaiil to cxainiiM' ami st-airli tlu' vcsMt'l; niiidc ii! iii(|iiirU's as t.t tiic iiiiiiiIkm of crew on lioanl; w liiit tini« wf ciiiiu' into \Wv\\\fi Sea; ami llic mniilMM i.lsealsk They al.so tof us if i iiiiy:lit with liesli si IIS on lioanl. - -- kins on hoard we would lie sei/ed. Also repoiled liininy siized sclioniiers IJIavk IHdnioinl. J'lilliHinltr. and Mlii other schooners in tl iiiiiriii;! iiitli i:>ii xkh »/V, and having; searched le sea. .1/ .'' o. in. oil lioats mit. iiiid M. Had l.v scared t]iron};h tlie day, as the cv.tter appeared at one time to lie letiirninv' to iis,"aiid our Ixtats had pii tar away, contrary to th<'ir orders when leaviiifr the vessel. 'riiis entry disrloscs tlint the Aiitl lowered lier lioats \yitliin tlire 'loiirs after slie was waniecl, iind. as tes- tified liy ( aptain Mnrknani, flie iM.afs were lowered "•• iiii;i. line every day fliereaffer up to and iiielndin^' flie niorninji- of the l«tli of .ViijiU.st, wlieii the weather would jierinit. Kroni the time of the wariiiii<>- liy the riiited States revenue-flitter, up to and iiicludiii«r the 17fh of 447 *^, Vt Ni'll 448 TlIK AKIEL. Auji'tist, tlu' Imiitcrs of' tlu' Aiiil lind tjiki'ii 4S5 soils, iiii iivcnij^t' (if '26 \>vr diiy. From tlic I'Jtli diiy ot' .liilv until the 3()tli, ii iicridd ot" i-i^ilitt'i'ii days, 34(1 seals iiad Ik'cii tiikt-ii hy the liiintcrs, an avcraiic ot' l!l seals per day. ('a|ttaiii Hueknani. one ot the owners ot" tlu- vessel aii:l a witness \\\ Ins o\v examination: n lielialt" was asked on eross- R., lUiS, line t), IHtl i/tiit nut sriil rrvrji iliii/ hcfirvrii tliv Hoth ilaji of •hihj u (Did tlir 'Joth (liiji of Aiiijiist . A. / //./(•(■(•( iiiil. ' thrim^h this diary; tliis is correct. ^). Vou had that diary when you were ttn the stand before, did you not ' A. Well, any statement 1 make from this diary is ciu-rect. th i. all the vessels that reinain in the sea. Tlie I'nited States deu\ all lial»ilitv tor anv dam- apes alleji'ed 1o haxc accrued prior to the IStli da\ oF Anpnst. and coMlideiitly rel\ upon the testimoM\ ol th le claimants themselves to estalilisli then- position that no heed was ^iven the warning' until the iStli iili'iist: and no damaiji'es were snstaiiu-d prior (la\ o tA to that da\ , tor the captain sa\s that he lowcreil his boats ever\' sealini:' da\ iiii to ;iiid incliidiiiii- the "•••'•>!', 1 morniii"- ot the iStli. 10. Th le memoraiKliim or lo^' prodiiceil mm! not contain a record of the latitude and longitude of the slii]» from k., 1470, n the 1st da\ until the "Jlst da\ of Auiiiist. ;i(i. Q. Ami IVom the 1st day of Aiiy;nst until the I'lst day of Au}>ust you have not entered your latitude and loiifjitude.' A. 1 think not. The onl\ testimoiiN iiearinii' ii|ioii the position of the ship after the wariiiii;:- is that from the position of latitude .').">' on the 1st day of Aiijiust. The |{.. i4(i;t, li lo(l in tiif nii'inonindnni: Imt tlu* entries show that the v»'s- sel was sealin<>' constantly, and make reference from time to time to tiie scarcli after the hinitin;"- hoat, showinfi' tliat the vessel must have remained in the vicinitv of the position oi-cnpied Au<»'ust l,the(hiv upon which tlie hoat was lost. (hi tile latli of Anjiust the .seals appear to have liccii so plentiful that the captain made tiiis note in his hook: "Manv seals .seen diirinj:' the day from the vess«'l." The cour.se from ;")."» (•"»', l(J!l " "•")' southeast toward Moji'oslof, which was the course of the vessel from the Tttli of Aujiust to the iHtli, when the decision was made to leave the sea, and iluriiij'- which time the liuats were lowered everv ''•.!'*• '"'"assert to he the area hahitually resorted to l»y all seahrs anil well known of all men eiijiajicd in the business. Locate on a chart the position occupied Ity the Arlrl on tile l>t of Aiijiust — l(i;t ,").")'. It is due south of the I'rihilof Islands. If the Argument on behalf of (iieat Ihitaiii attempts to estai»lish any fact it is that this locality is tlu' "best sealiii;i>' ^iroimil" in Heriii;j- Sea. At ita<>e (!.'5 of the Argument ( 'aptain Kayiior is am, p. il:i, line 10: |i. tiO, liur L'd. ID et siM|. I 'n THE A KIEL. 451 C'itt'd as a raptaiii wlm svalcd on flu* "Ix'st scalinf"' }in>uiiitud«' and f*")^ nortli latitude. Hut when ("aptain Hiicknain was oc«'U|t\in;i' 5.')' and '("i^ ().">', wliich is almost idcnticallv tlic same location in H('rin' to one of the so-called ini<;Tation charts, tins statement is made in the .Vrjiumeiit at pajic oK, line 1: It suHUiciitly indicates, as well as the migration eliart first releiiiMl to, tlic comparatively limited siiace between the jiass of the Aleutian Islands and the l'ribih)f group in which seals are found. ( "aptain Hncknam lestilied: (}. You were nearer the line rniniin;;- from the I'rihilof '>••. l'7'Miiie Islands to I'ninnik I'ass after jou liatl been warned than yon were on the day on which you were warned f A. Yes; it would ln> nearer. i). Now. you have told about heariiif;' where the good sealing was down at N'ictoria before you went up there. Did you hear that the sealing grounds were between Ini inaU I'ass a' .' the I'ribilof Islaiuls.' A. No; 1 iicisrd they used to be there, but the seals had changed up to the west. Tht' positifin assumed l»v the claimants who did init heed the warnings o-iveii l»y the reveiuie cutters ot" the I'niteil States, l»ut on the contrarv contiinied their vo\ iiM-es practically until the close otthe season, is that altliou;;li there are localities in the Herinji- Sea which iiO. ai'e known as the "Itest sealiui>' "rounds," th ese fiTotnids were never occupied Ity f/nir ships, even when the location, Wv latitude and huiyitude, corre- .ith the location ot' tht se so-called spomis exjictiN "sealin^i' grounds." The ilijih ( 'ommissioiH'fs are asked to find tor one claimant that his ves.sel was seized and her operations arr«'sted while huntinji' in the most desirahle place in all the vast expanse of water formino' Herinji- ^ea, M 452 THK ARIEL. III.-.,;. H., 70:i II. I{., 701. K., "(Hi, 4d. jK'rcliiiiU't* the cliiiin Ik' li hunting' oviT th«' saiiu- aiva, after the uiilieecU'tl \\an»in<>', h-tt the desirabh' sealinj;' jiroiiii«ls. The testiiiionv of ('aptaiii liuckiiani is t'litith'd t(» no wi'i^ilit; on tlie Record lie has convicted himself of the willful iiiteiitiuii to deceive as to the voy;<^e of the Ariel, and his claim should l»e considered as an attempt to mulct ust, and he treated with acconlin^ly. This witness was calleil first, not on his own Iw-half, lint as a witness for the purpose of ^iviii;;' testimony on the p'lieral suliject of the catch. liiif ij, Voii were in tlie Ariel t A. Yes. i). When (lid yon g<» into the .sea? A. I (loiTl know tlie date. It was idxnit the lOtli of July. (f. And how hitiy did you stav in the sea? A. Came out about the Hdth of July, 1 think. i). I want to know Mie date you went out: liow loii<>: did you li.sh tlieic? A. / (hiii'f kiKiir the iltiti: The xhiitu honhs (irr hist, ami the loj/ hook also. His direct examination dosed after the information of his total catch was elicitetl. The witness iiad not lieeii called in the claim of the Ariil, liiit the first ipiestion asked him on cross-exam- ination was: lint- (^». Von did not state that you went out durin}; the month of .Inly, did you? A. 1 sai for the year I8i)0t -"• A. No; I haven't. Q.. Have you the log of the Ariel for the year 188(1? A. No; I have a kind of roiigli diary. Q. Wliere is that? lie then re(|iiested iiis iiu'nionuiduni Itook to he {••iveii liini. The witness was reealle'.t, line tified, on his own l»ehalf, with reference to the ehiiin '"' of the Aiirl, directh- from the memorandum which he produced when on tlie stand hefore, after heinji' pressetl on cross-examination, and read therefrom the entry k, i„j.> nne under date of duly ;{(>. ' ia. (^. Yon had seen tiiis meniorandnni just a few days hefcue "• ""^ ''"« you took tiu' stand on the L'3d of December, liad yon not? '"■ A. I had it in niy possession. (f. And yon had looked at it, luul talked with ccanisel abiait it, had yon not ? A. Vou mean the diiv 1 appeared here? Q. Yes. A. The eonnsel liad it at tliiit time. Q. I'.nt yon liad tidked with them abont it. had you not? A. 1 liai"f I'lioir tlhit !iint hail tl'iol iliari/ irhrii i/ou took the stand Ji rut.' A. / hnvw that raiinsil hail it. Uri'vv to the testimony id' the witness on the 23d day of Decemlier, where he said: Q. And how long did ycui stay in the sea .' A. <'anie out abiven to the tcstiiiioiiv of this witiu'ss r(', that was in lierinj; Sea in Septcndn'r? .\. 1 was not aciinaintetl with the business before 1881); that was my first year. Such testimony i;iven l)y this witness will not, It is apprehended, he made the l»asis for extendin<;- the time for which the huMtiu"' voya<:e would have continued heyond the ordinary limits tixed hy the ument on hehalf t»f (Jreat Britain, treat- iu"' speciiically this claim, the statement is made that the mate. Smith, corrohorated the testimoi\y of the captain "that it .vas his intenti(»n to try the Octoher THE AKIEL. 455 Healiiif'," and tlic Kccord (p. 14H4, line "»S) is cited in .support of tliJit stiitcincnt. Tlu* ti'stiiiiony of tin- witness, Sinitli, tlu-re ^iivcn, is: Q. What uiKlurstaiuliiijr was there? K., 14S4, line A. On several occasions \v»' met on board tbe scliooner — •''*• that is, tiie liuntcrs ami myself met the captain and asked liini to lit tlie vessel well out, as she was at that time one of the larjjest vessels out of Nictoria Harbor, a stauiu-h vessel, and we ha(>rts were true with regard to seals being found that month in the I'.ering Sea. that we would be able to slay. Tliis witness was in tlie IV'rin;u' ^^eii in ISilU, on tile h'titlidtiiir, and if lie desii-ed to tr\ his nnlieard-of expeiiinent of ( )ctul)(.r sealiiin'. it niiii'lit reasonal>l\- l»«; expected to he found that the v(»\a;i-e of that vessel was coiitimuMl until (b-tol»er, l»ut tlu' witness testified on cross-examinatiiui: if. What time did you come out of the sea in 18!Ml? n.. itsii, Hue A. 3lst of August. HI. And he j;a\»' no exphination as to tlie reason, altlionjili oil redirect examination an attempt was made to ascertain why he left the sea at that tinu'. From four to live days an- re- the opportunity to continue his soalinji' voya<>(' initil October, left the sealin<>p-ounds at ahout tlie 2(!tli of An;;ust. Xo property was taken from the Ariel, and the (lovernment of the I'liited St ites claims that this vessel should l»e awarded the minimum of damajios, if any sum whatever, because of the dishonest at- 456 , THE ARIEL. tempt to luaki' out an aji-jfravatd flaiin. Ilowover, should the Ilijili ( 'oiniiiissioiuM's (UH'ide, iiotwitlistand- iniL,'' the falso position taken by tlu* captain and part owner of the vt^ssel, to awaivf damages for tiie bal- ance of tlie season, the owners wouUl be entithfd to (U'niurraj^e from tiie IKtii of Auynst to the 20th or 'J'lth of that niontli. i ; ifa THE KATE. Claim No. 2(I. Tlif Kah t'litcrt'd Mcriii;-' Scji uii tlic 24tli of July,U., in??, line 1S81I, cjiiTv iu^i' fiiilit cjiiint's jiinl liidiiiii limitiTs «")ii '"• till' l.Hlli fliiv of Aiijiiisr she wjis wiinicd by tlic riiitcr! States rcvciiiic ciittci- Itii IkniI liiis/i to li'sivc Hcriiij' Sea, iiiiflfr tlirciit of seizure. No part of the outfit oi- (•ar^i'o was seize(l. 'I'lie waniiuji' to leave tlie sea was not olieNcd: hut l>'••.l:^"^ I'no on the 14th of August the Miat<' eiiteiH-d in his Ion; AiiKiist 14.— Tliis day lii'j;iiis witli falin siikI lioavy s«'a i;., i:t7s, line from westward. At Hi a. in. caiHics nut, anil rctnined at <> '•''■ 1>. in.; calm. The n'maiiider s lifjlit. Oil the l.")th (»f .\ii;^ust this entry was made in the loo': At 11(1011 wind soiitlierly, and liaulins to tlie soutlieast; k.. ists. linr lijilit breeze. At (I a. in. canoes our. and returned at 4 \>. m. •"• Wind continued tlie same. Move to luider foresail during tlie iiifilit. On the Kith day the entry in the lo^ reads. At noon, southerly wind and I hick ton; i>t ?< a. m. set theK-. laTM, line jib and double reefed mainsail and beat to windward. Con- '-■ tiiiueuini)8K'., i:<7!i. line lijtht. lookout carefully attended to. •<•<• < )ii the iSth of Au^iust the lo;;' shows that the vessel si<>hted r^ieinok Island, which would indicate that she h'ft Heriui;- Sea through rniniak I'a.sson that dav. n s ."(8 4."" 4').S THK KATE. w., i:wi, •JO. II. K.. i:WJ 63. K., 1HK<, 42. """ Tlif liuuU'is hixl iiiiuU' ii totiil ciitch tif 73(» i»r 74(> si'iils ill |{c;-iii;i- Sni, \vlii«'li wt-rc ' tor the other intervening' ihiys shuwetl tliiit the weiither wnnhl not iieiniit nf seiilin;''. Mil.' The testimony of Alexniiiler |{e|i|ieii, the iiiiite, shows tliiit the Kiiti' hlintetl every |ien,who was mate on the voyao-e, testified: liuu (^>. Von left Heriiig Sea that year about the time the im.sty weather .sot in, did yon not i A. Yes, sir. Q. An the time that he intended to stay in the sea: i). Now tell MM'. Captain, what were your instructions as to the time yon slioiilil stay in the sea .' A. .My instniclioiis were to stay there as hniff as the wt'ather would iii'iniit. ( hi eross-exainiiiation this w itiiess was eNainiiiefl as tu the time when he had left the sea in I'nrmer \ cars: ii. VVlnit boat were you on in ISSO.' A. On the I'ai'oiirili. (i>. What time did you leave the sea.' A. About the l!tlh ot Aujinst, I think. <^. What boat were yon on in 1SS7? A. I was on the l\'f the cajitaiit. K., I ;w. I.'.. 1 til. u.. i; 51. t' tills v»'s,H»'l r«';>iinliiij>' tin* c tVoin itcriiio- Sea to N'ictorin was in tlic iicioliltorli 1 of tit'tcrii to s«-V('iit«'»'ii <]■■ ami that the Mvcrat tiiiM' (•oiisuiikmI l»y ii s( iio' scjinoiicr in stowin;'' away her small lioats aii in prciairin;;' to Iciivc the Hfriii^i' Sea for her return Noyajic ami in niakinji' the |iassa;i(' from the jihu-e in the sea where she ehanceil f(i he sealino- to the Pass, was aliont Hve davs. Aeeordinjily, on the statement of the owner him- self, the \oyaoe of the h'aff would have ended the 2'»th of August, and she sealed eonstanth until the 17th. Melyea's (>har;>es, >«2.'iO, (lepeud upon the same con- tino'ent arriuioenient as all of these charoes in the vari- ous elaims. There is no testimony cited from the Record upon which to hase the claim for "time and exjiense of owner, : ^00," and there is no such testimony. K., I3!t4, lini) The h'ofr was huilt in ISd'iand her re sii|t|»li(.s iilxiiiril tlu' vi-sucl wen- tiikrii itrt" lit tin- fniiliiii;- pimt nf ('lmrl<'.s .Spriii;-', the owiH-r, on her rt'tiini vuynu'c to N'ictorin, slioiild Itc tiik«'ii int isidrriitioii;' ns slioiild also the t'nct tLiit";: Jif Kyii(|iiot, 1111(1 otluT |iliH't's on the west cojist of '^ Vfinconvcr Islinid, sin- wns loiidt'd witli ii rarjio lor transport to \'i«'toria. 461 ■>. .•>!'; If., Wl. :i: THE PATHFINDER. ( 'l.AIM No. •_'!. Tliis cliiiin Jirisfs troiii the seizure of the I'dfli/ii/i/rr ill Xeiili \\;i\\ ii iiiirlior. in wliiit wiis iit tli;it time Wiisiiiiif^toii Territurv, m |iiirt of tlie I'liited Stiites of Ainerieii. on the -JTth or I'^th of Mnrch. 1S!)(). Tlie seizure Wiis iiiiwh' l)\' the (•oiiiiMiiii(iiii;i' otheer of the I'liited Stiites revenue cutter Ciinriii on the ^roiiiid \\ illiiini .Miinsie iiml rreilerieK l ariie, jr., citizens of (ir«'iit Ih'itMin. owned oiie-iiiilt of the l'iitli/iiiiln\ and Amh'ew .1. iieciitel. ii citizen of the I'liited States of America, owned one-liaH'. '' The aihnissioii was iiwkU' on hehalf of ( ireat IJritain tliat tlie interest of Mechtel ill tlie I'lillijirdif had remained uii(dianjiC(l from the time of her seizure in ISSII, at which time he was a half owner in the venture. The \cssel was seiz<'i| Martdi '11. ISSll. as shown 1)\ the fnidin;;s of tact of the Triliiinal of Arbitration convened at Paris, and in a footnote to the talile found in Aiine.N (' to the Trihunal of Arltitration the 4(« i J; TIIK I'ATHFINDKK. 463 stiifciiii'iit is iiiiidc tliiit she Wiis rclcnscd two dnvs later. AlexiiiKU'i- l{c|t|i('ii, the iiuitf, i-iillcd as a witness on ix'Iialt' of the clainiints, was nnalde to lix witii accnracv the date of the sel/,in-e, althonuh lie testi- (ieil, "\Ve started from Neaii Hav at (I o'ehnk in the iiiorninTain sent l>y the coniniandin;'- olHcer of the Ciinr'ni to the Secretary of the Ti'easnrv at Washin<-<. hno eeediu"-' to N'ictoria. If the vessel had returned to nlIoiL>."''' it •>. i; A 464 THE PATHFIXOER. R.. x-Jl. H., X2'2. line Xciili Hiiv iit'tt-r liiT rclciisi'. slic woiiM liiivc jirnvcd rlit'iH' oil tlK' iii;^iit nt' Mart'li ■2ll, iiiid the seizure would liiive resulted in lier detention from tlie iiiorn- in<;- of tlie ■J9tli of .Mnn-li to tlie nijilit of the siime diix'. or. iiecordiiiL;' to tlie tiiiilin^s of tlie I'iiris 'i'ri- Ituniil. ill lier detention for flinr il((i).s. Ill tlie i»l«'iidiu;is tiled heforetliis ilifili ( 'oiiiinission jit \ ictorifi, diiiii!i;;es ju-e ehiiiiied to the iiinoinit ot >^'J,(MiO: l»ut in the Ar^iiineiit the ehiiiii is iiiiide for ><3,700. This iiichides an item for diiiiiii;^es for "ille- ^iil hojirdiiiji-, search, and arrest of the vessel, >^'J,000.'" A claim is also made tor "jiersoiial and leji'al ex- pel ises, !SL'( )().'" There is no testimoin in the Record of any ex|»endi- tnres made l»\ the owners on account of the seizure, anil no testimom' is referred to in the Ar;ininent on l)elialf of ( Jreat Britain. if the vessel is eiitith'. Wcri' you on (ici'k wlieii tlio seizure took place? A. Ves, sir. (). . I list as briefly as you can tell us, wliat was said aiitl (lone by the officers? A. The otticor went to tlie cabin to examine the pai)ers and he eaine on deck and the cai>tain came on deck and told uie that they had .seized ns. (). Vour own captain .' A. Ves. sir. (}. Well, jjo on. A. The otiicer (roni the Coririn went on board the cutter and sent a crew of men with a towline on Ixtard. made fast to n^i. and towed us to I'ort Townscnd. Q. Was there any conversation that y(Ui heaid take place — were here any orders or instructions given that you heard about heavinj;' your anchor, or anythinji' of that kind ? A. T'he same otiicer canu' on board ajjain and told us to lieave our aiu^lior, and we were bound for I'oi t Townseiid. (i). Was there any answer? is tor THE PATHFINDER. A. Answer to that? I went and told tlie men to heave up the auehur. Q- Uiiition she was towed to tiie nearest telegraph station, and there n-h-ased as ((nickly as onh'rs eonid he reeeiveil from the executive (h'part- '^'/^'i' '' lueiit of the -es can Ije awanh'd lier owners. Tlie vessel, havin<>l»een forced into Xeah Ba\- under distress, had the rit-lit granted her hv the law of nations to depart without interference; l)ut in order that the claimants mii>'ht l)e in a position to a2, 6S. R., 1653, 40. THE HENRIETTA. Claim No. 2li. The J/ciir'u'ttd I'litorcd Hcriiiii' Soii in S('i)t('nil)('r, ]S!l2, in violation of the iikkIiik rirrntli. On tlu' Gtli lineof Scptcniher, ("njitain IIooikt, coinniandin^' tlu^ ij^glhiiti'd Status rovcniu' steamer Conriii, seized lier. 8e|»teiMl)er lU, Coinniandev Evans, ('onnnanf seizure a- tlate Feb- linoruary 1"), IHil.'j, ret|uested that the Ifci/rirftd be de- liveH'd to the British authorities as provided in the (."onvention of lS!t2. 466 THE HENRIETTA. 467 Mr. Foster replied, in a note djited Kehruarv 21, 1^- 1*553, line 1SJ»3, tliat lie had reeoniinended to the Attorney- '^" General of the United States that the Hciirirttd he delivered to the proper British authorities for trial under the iiiodiis riniidi. Th" 1 )epartnient <»f State advised Sir Julian I'aunce- 1* - 1''"'*' '"'o fote, under date of Septeniher 2, 1S1)3, that the lil)el against tin- Ifi'iirirtta, charjiinji' hei- with violation of the revenue laws of \\w United States, had l»een dis- missed, addinji": ''/.v if fl,r ilrsirr af i/ f.dh.ws: ^• Newport, Sfptnnher :30, isn:,'. Sir: [ did not fail to transmit to the Harl of Kosebery the iiKiuiry wliicli you addressed to me by teloKrnm on the 2d instant, as to whether it is tlie desire of my (lovernment that the Ifniriittu sliouhl remain in cliarp' of her captain or that the United States should send her to V'ictoria. 1 Imve now the iioiu)r to inform you that in rejily to the above hniuiry. Lord iiosebery has instructed nu' to request that tlie llcnikttd may be sent to N'ictoria uiuler the exact terms of the HKidus Vivendi, or he left in vUdrife of her captdiii df the option of jjour Government. On the 23(54, 13. H., 16()3, 8. K., 16ti3, 48. R., 1663, 56. K.. 1G77, THE HKNKIETTA. Hue (\t)»tiiiii I'iiickiiey, cxiiHiiiUMl on beliiilf of tlii' cliiimjiiits, tcstifitMl: (J. \Vheii was sbe attiially delivered ti» you? A. 1 tliink it wa.s the li.'id'of November, lS!t3. 'I'lic (M»v('niiiR'iit of tlu' I'liitcd States iidinits its liability tor tlic ilctciitioii of tlic Jlci/riittd from the (itli (lay of Se|)t('iiil»cr, IS'.fJ, until the 'Jiid day of Xo- vi'iiilicr, 1S!);{. line Captaiii riiu'kiicy, callcil oii helialf of tlie claiiii- aiits, said: (). Ho you r«'incinbei' wliat lime you arrived at Sitlia? A. I tliiiilv it was tlie L'Otli oC September. i}. Did you remain witb tlic scliooner? A. Weil, 1 stopjted on her a day, and tlieu 1 went ashore. (}. As far as you were concerned, you were not interfered with in that respect ? A. No, sir. (^. How long did you remain in Sitkaf A. I think that 1 remained there two days. if. And then what hajjpenedf A. Then 1 went to ^'i«'toria. 'I'Ik' statfiiu'Mt is made in tiic Arj^tiincnt on iK'lialf of Ctrcat Mritain tliat wlien tlic master left Sitka the '"'"crew were in jail. The captaiii testified: (i>. Was it in the Jury room? A. 1 do not know. It was not in the Jury room. I think it was ill the a..ceroom where the keeper stopjied. liuc I}, Was it the tirst time you saw them there? A. Yes, sir; I think they were jiut in that day to prevent them from j;oinjj away on the steamer. 'i'"' Cicser Dorinji', one of the crew of the Iliiniitta, tcstiticil on direct exaniinatiini: (}. After yon arrived at Sitka were you detained there? A. We were. Q. J low many of you! A. Six of us. Q. Wfff yoii put ill the ,sherij)"s ii(fivi .' ■\. YiH, i^ir. Q. For what length of time? A. For about three hours, 1 should sav. Q. What ftu'lf THE HENRIKTTA. issiiye iu tlie CoiiuUlnm. 46>r»(> to <>-o (lowi tl Al. •out a dollar or two, 1 in k, would cover my expenses at Sitka before leav- for \ ictoria. lie remained in \ictoria until .Iidv, 1S9;}, when 1 returned to Sitka, remaininji' there lintil the del of the \-essel on the 'I'M dav of November. le iverv Tl lei e IS no testimony in the lu'cord that Captain Pinckney was employe*! l)y the owners of the vessel, I there is the positive testimony that he was not s in les. There an< l)aid for services durinj:' the time that the v«'ssel wa the custody of the United States authorit is no testimony that he was not employed for other purposes at \'ictoria iu the interim, l)ut he asks the G(»vernmeut of the I'nited States to pay S6()0 for his hnird at Victoria, when he was not eni;a<,ied iu con- nection with the seizure of th(! Jlei/ricfta and niifiht have been euijdoyed (dsewhere. Q. 1 )id you pay tor your boara iu Victoria ? Did you incur any expense in Victoria in the ineantiuief A. I think it cost nie about ••<(1(K) Croni the time I got down until the tiuu' I arrived up here again ? (.). How would the Idoo be made up? A. Well, hoanl - with till' Ilcnrkttu for N'ictoria -., 5S. ; ' t' 'i ' in 470 THK IIKNRIETTA. H., U>til 10. R., 1667, as. K., 1670, 6;j. line 'IVstit'vin;^' n'liUive fo the »'oii. Had she been taken care of in the meanwhile.' .V. Xntliiiiii moir tlidii the xliip hcciwr on liiKinl. (). Mad she l)een copper painted? A. No, sii'; ami her centerboard was badly damaged. (). How was it damaged' .V. Well, there was .some of the iron strajtping very bad. 1 found when I took charge of her that the chain that hauled the eenterboard up was bioken. (). Was it broken or dan. aged at the time of the seizure? A. No. sir. (). And the gear was out of order? A. The running gear was (piite rotten. i). In what eondition were the sails? A. The i)rineipal sails were all right, but there was the main to|)mast staysail which had been left down in the hold, and was all mildewed and rotten. line On cvoss-exaniinatioii the witness testified: (}. The Hi'iiricltii had been lying there in the water at anchor ? A. Yes, sir. (j. And as she lay there, she was not beached at all? A. No, sir; when I tot>k charge of her I put her on the beach to clean her bottom. (). In Sitka ? A. Yes, sir. (i). And y(.ii found that she was pretty badly worm-eaten f A. Well, yes, sir. . Had you looked at her bottom that spring? A. No, sir; not at her bottom. THE HENRIETTA. Q. I mean the spiiiig of lSi>2; had her buttoiii been exam- ined f A. \(i, sir; I did not look at lier bottom, but 1 had her beached in Tonid Uay, un. Well, what was the sail that was lost, mildewed, or injured, worth .' A. Well, 1 do not know exactly the cost when it was new, I am sure. (^ Was it new the year when you sailed out of Victoria? A. No, sir; 1 think not. It had Iteen used a little, 1 think. (). About what was it worth ? A. Well, 1 could not tell. I do not know how many yards there were in it. (i>. And the centerboard ; how much would it have taken to put that ill repair? A. Well, 1 should think it would have taken i)robably about, SI'). i). Now, you had been out for the entire season of 1S!L', sailiii}-- in :\Iarch, 1 think, did you not, for the coast catch? A. Yes, sir. Q. .\nd yon were seized about the 4th of Sei»tember, and you were on your way home; you had had about yonr full season's voyage? A. Yes. sir; I was working my way home. (), Now, the llvurhttti had the wear and tear of that voy- age at the time of the seizure ? A. Yes, sii'. Q. What do you think it w(mld have taken at the time that you got possession ot the vessel again to put her in as 471 't!> %^ 472 THK HKNRIKTTA. good rt'piiir as slie was wlioii you lliiisbed tlu^ voyiige in Hep- ti'iiibpr, IS'.H'.' A. That is, tlie luilH ti>. Yes; tlifsliip. 'riiecoiiteilioanl flx«Ml and tluMlaiiiaKe to tlie sail tliat was niildowod; put lior in tiie same condi tion as slu' was when you started for lionie on tlie Otli of .Se|)tenil>er, ISiti.'? A. Of eonrse tiu'ic was a good deal of wear and tear to her sails (Mtining down. (). Yes, bnt what was the aetnal wear and tear to her sails dnrinfj the voyajieof IS'Jli — tlie ordinary voyage * Wliiil iroiild it liiirr tiil,rii to harr put liir in iix ijiuul ^!):.' irhcn you irirc ahiinl to leaif the shi)).' 1.'. KiTL'. line 'I- I xlioiilil sill/ alioiil sli>; tliiit in, to put npiiirs on liir 1. iwirpt tlir ironiis. ',>. Iloir itinrli, ill roiniil Jii/iircs, do i/oii think tliv injury to tlir iTsnrI wiix, or irliiit iroulil it liiirerost to liKi'v put the ri'sucl in (IK f/ooil repair iiltoijethvr, vaptiiiut ,1. / think prolidlily (il)ont s'jDn; that is, the hull, unless the planks had been worn so bad that they had to be taken ont; then it would eost nu)re. R.. 11172, line (^». \Vheu you examined the skins, to what extent were •'-• they in.jureii.'of the .UM* or Km that were in there? .\. Well, 1 do not know, but in my mind 1 think it would l)e about !?•>. or something like that. (}. Three dollars for what ? A. Threi' dollars i)er skin. lie siiNs tliiit tlu' 420 st'iil skins seized were (l('liv«'re(l is- K'., llilil, lilU' .'lit. H., lliii."!, lin 10. .hack t<» liiiii, liut that tliey wen- -, HKlit, linr >*L*r>r»." 'I'lie /Iciiriilld fiirricfl Itiit three l>ofits. ' Tlie (leiiiaiids of tliis (diiiiiiiiiit iire so urosslv e\or- hitiiiit, soiihsoliitelv witlicMit fomidiitioii in tlie (Jecord, iilid so iiiiiisiiiil tiiiit ii detiiiled discussion of eaeli item is considered iinneeessjirv. Tlie lli^li ( 'onniiis- sioiiers, upon inspectinji' tlie schedule, will find thiit the ilhistriition of the doiiiile cluirHe for the lioats priicticidly represents the method in which the entire schedule is ninde up. 'I'wo items for leynl expenses, iis follows, iire contiiiiied in the schedule: " Le;i!il expenses at Sitka, >>irj. ")()," " |{el\ ca's l)ill,/r proceed- ini;s at Sitka, >^lli{." 'I'liose items are siip])orted liv the liecord, and inasmuch as the inoiiev was evpeiided in behalf of the owner in protectinji' his schooner a}>ainst the (diarjic of violatin^()()(»," is liased upon the followin<"' testimonv: (). Had yoii any other iigreeiiient with Mr. Sjiriiisas toaiiy K.. 1738, line otlier cliaiges ? 5L'. A. Ves; in tlie fall of IS!),!. At the tiin« it was not known whether the vessel would be back or what would be the re- sult of the ease. There was noiur talk <;/' npihiiliiKj from thv iltviniiiii of the voiirt tit SilLd, and a liinii> sum of .•jfiOd was af^reert to as the eost with respet^t to tiie claim. This was to inei)are the claim and get it in and h)ok after it until it was settled. Inasmuch as no decr«'e was ever entered, and coii- .se(|iiently no appeal ever taken from Sitka, and as there is no testimony that ^Ir. Hcdyea had any con- nection whatever with ol)tainin;.;' the vessid for the owiuM' — hut on the contrary the diplomatic corre- sjiondence already <'ited shows that the ves,s(d was B s 00 I 474 IIIE HKNHIKTTA. H., 1735, 51. I 1 . U., IWio, 21. ri'lciiscd hy order of tlic hcnartiiiciit ot" Stuff of tin- I'liitcd States — tlu- cliiiiii tor tliis it«'iii, wliicli wiis Imscd ii|)oii services to l»e perforined in <'oiineetioii with the Hj»|ieal, when ii chiini for apiK'al even was never >(I(H»," has heen nu'ntion«-d. The chiinis "l^oss of tinu', waiting;' (hdiverv of ves- s(d at NlOO a month. !s7(k»; hardships sutlered In- master, >i."(0(»," nnd ahnost every item thereafter until the end of the schechde are (h-mands absolutely witli- out foundation in the testimony. They are, more- over, ])er.sonal claims of the persons nameh Commission. Concernin<>' the item " I'ersonal expenses andtrouhle of Charles Sprhijc, 85(10," Sprin}>- testitied: line t^>. The tiine tliat you spent here tliat yoix refer to was spout in i)rei)ariiitf a claim against the United States for the seizure and detention of the Henrietta t A. It was more partienhuly to collect evidence, I think it was. Q. For a claim ajcain.st the United States? A. Yes. Q. Had it anything to do with the defense of the snit at Sitka ♦ A. No. Q. What time you spent here was in collecting evidence with Mr. Hclyea to jircsent the claim to your tJovernmentto be recovered against the United States for seizure? A. Yes; I think that would be about right. 'llie item " lOA skins sold at Sitka, ^If) a, skin," does not take into consideration the fact that the captain liiii'ti-tities that he obtained "^h'lh.Xh forthe.se skins at Silka; nor the fact that in tlu; Ar<;ument, j)a<'), line 50, the statement is ma^2,(MI() tor de|M'eciation in the value of the vessel rests njton no testimony whatever save that of the captain, where he says that it wcmld have i 5 1 TIIK HKNHIKTTA. 475 hccii <'(i8t s-J(Mi to iv\n\\r her. Spriiij-', tlic owiicr of seven- "•■ '"■'"' '"'" eiylitlis litlHit' the vessel, lestilied K.'^'l.lines that when she iirrived in N'ictoria lie wiis absent, ami '"'''^' that he did not see her until the I'l'd or "Jfitli of .March. He knew nothinjj' of what care had been jfiveii the vessel in the meantime, and inasniiich as the owners were (|narrelinji- with the ca|»tnin, as is shown l»v the testimonv, some presumption miylit arise rei>'ardin}i' thi.s. Q, Did you ever own any otiiei' vessel? K., l7J:i, Inie A. Yes. lit. Q. Whiit others? A. Only two small vessels — sloops. <^ What do you mean by a small ves.sel ? A, A ve.s.sel of eight or nine tons. <^ Below the register here, I suppose? A. Yes, below the register. *i. Did you ever own a registered vessel before, or own an interest in one? A. No. He testilied that the vessel was not hauled up on the beach to have her examined, and he t'vidently l{.. nii', liue knew notliinjiJilxiut the condition of the vessel excent ,.''■?',,. ,. ii i 1 I I • !•. 1 1 1 1 .1 ' , Iv.. 1741, line that she was leakni;-' a little and that her sails and r.o. ropes were worn. lit* did not know whether the loaka;>'e was about the centerboard or not. if it was it could have been repaired at a nominal expense. This witness testifies re<>ardiii<>a sale which is cited "••1714, line in the Ar}>ument on behalf of (Jreat Mritain. A read- ^"' ill"' of his testimony will show what weiyht should be attached to that offer. The sheriff subsetiueiitly seized the Hciif'nitu under !<•, 1745, line an execution directed af>ainst Mr. Sprino- for a debt *'*' not contracted in connet^tion with the Hn/rieftn, and ^Ir. Foil testified that tliev did not have time to ,i!' 47(i K., 1747, liuo 22. THE HENRIETTA. * t'luleuvor to sell the vessel before the sheriff luid her. There is no testiinouy that the vessel was free of liens when the sheriff sold her, and the sum realized at that sale, as said by the High C'oniniissiitner on the part of tlie United States, - Seii. The seizure was i»i>de'^|.,o H„e57' by the l^iited States revenue cuttei- Muhinni. Article 3 of the wadus rirnidi of 18!I2 provided: Every vessel or person oflfeiuliiig iif-iiiust this proliibitiou in the said waters of Bering Sea, outside of the ordinary territorial limits of tlie United States, may be seized and detiiined by the naval or other dniy commissioned ollicers of either of the high contracting parties, bnt they shall be handed over as soon as practi<'able to the authorities of the nation to which they resjiectively belong, who shall alone have Jurisdiction to try tlie offense and impose the penalties for the same. The iritnesscs mul proofn luccsnarn to eKtnblinli the op'ensc i^liaU uiso he sent with them. This article is the same as Article i{ of the iiiodifs tnrriidi of 18!)1. i'arliau'.ent enacted in 1S!»1 the "Seal-Hshcrv Act, '^^^i'"''* ISill." That act provided that iler Majesty, the (^)ueen niifi'ht, by i>rder in council, jn-ohibit the catchinji' of weals l)y Hritish ships in Herinj>' Sea, or such part thereof as was dctiiied l)y the said order durinj.;' the period limited by the order: and "if a British ship is 477 90, G. H. CI., 2;t; Ex- hilMts 263. m 478 THK OSCAR AND HATTIE. t'nuiid witliiii Hcriiiji- Sen, liariiif/ on hixinl thvnof Jisli- iiif/ or ulidiitiiifi iiiii)l(')iif»ts or nciil shins or hodics of sads, if sIkiII Hi' on t/ir oiriifr or iiiasfcr of siicli sJii/t to prove flidt flic sliij) ivds not Kscil or rniji/oi/fd in contrdrrntion of this (let." R.^1534. line \^^ u\(\vv in (■(mucil, (lilted "at tlie Court of Wiiid- R.. 1M4, lino sor, Htli diiv of ^liiv, lSi>2," wiis luiidc, and instvuc- '^^^ tioiis were issued to liritisli cruisers necessary to en- force the provisions of the inoihis rinnili of 18!l'i. Ksbibit 8!t, T!ie rresi(U'nt of tile I'nited States, actiny thnmjili ■si; Ex-^'"^' Secretary of the Navy, issued to the coniniauding hibits L't>2. officer of the naval force in lierin^- "^cj! in; n-.u'tions for the eiitVtrceu lent of the terms of Mn- m... , 'f 1892. ParajiTajih '1 of the instructions w- a: Any vessel fouiid to be or to have been eiiij/Dyed in sealing within the prohibited waters of Heriiifj Sea, whether with or withont \i9,\w'n\ii,iin(t iinji vessel foiinil therein, nhetlier named or not, lidvinfi on Itoard implements/or taliina seals or seal skins or bodies of seals, irill he seized. Exhibits. At the time of the seizure of the Oscnr and Hottiit, L".'7,lineii. >^)n. ],,„} ,„j l„(.|,.,l shootinji' iuipleiiients and seal skins, and she was in iierin^' Sea. <). When you were seized in Gotzleb Harbor yon had all your sealin};e()uii)uient on board, iiadn't you — your guns and all tiie necessary apiiliaiiees for sealing — on boaril of the vessel ; A. < )ii board the schooner ? (i). On board the schooner. A. They were there, sure. (}. And you had certain seal skins on board ? A. Y»'s, sir; but they were not caught in the Beriiit;' -.mi. l*ara;iTa])h ■'{ of the modus rirnidi of 18!t2, ^ hi-ii is (|Uoted aliove, provides that every vessel 'irt'eniiii;^- aji'aiiist the |>roliil)ition of sealin- seal or seal skins, or bodies of seals, was to be seized. The captain of the I'nited States revenue cutter Moliicaii, findinj"' the (hntr (ind lldttic within the waters from which she was excluded by the Conven- tion, havino- on board implements for takino- seals, which constituted reasonable cause fo/ seizure as pro- vided in the instru('ti(»ns issued by the Secretarv of the Navy, and l)y the Seal-fishery Act of 1S!I1, andJ^jil'i'its, havinji' on board also bodies of seals, which placed "'''' on the owner of the ship the onus of provin<>' that the shii) was not used in contravention (»f the moi/iis, as ])rovided in the Seal-fishery Act of 1S!»1, seized the schooner on the .'50th of Aiiuust, and on the 1st day '',^.,'j '','.'*'*• of Septend)er took the vessel in tow to Unahiska, r«,l'0;"i:x^ reachinji' there on the r)tli of Sejitember. uile*!';""' Cttmmaiuh'r Kvans, of the Yodioiru, was in tlieKx hii.'its, harixtr of Unalaska. 21'-', iiiur)4. i). Yes, aiul wlnittlid the Yorktoim commander— wliat did lie do ? A. He told iiie to stop over until the Melponiftw came aloiif; and he would turn me over to the Melpomviu: Q. Tliat is I ler Majesty's sliipf A. Yes, sir; tiiat is J I er Majesty's ship. Q. Well, ill about ten dmp ifou wrir onleiril In/ ^()h k x h ibi ts Parr, of the Mclpoiiiiiii, to pioreiil to Vivtoriii t I'l'it.lineu! A. iV,v, sir. ii. After leaving- ( "aptain Parr on the Melpomene, vou pro- 1: x li i b i t s , oeeded to Victoria under his orders, did you not? ' i-'i',), limra. A. Y'es, sir. Q. And reported there to the adnnral at Esquimault Harbor? A. I reported to the eolleetor of ctistonm. Q. And i/oiir ship iras then taken in ehureiet A. Yes, sir. 480 THE OSCAR AND HATTIE. i I 1 I J'. Il 11'''' Q. At auy rate, yttii left lier witli the eolleetor of customs J A. I left iier with the collector of customs, with a watch- man oil board of her. The ciiptiiin (if tlu' ^loliicdH, in accordance with paniiiTapli l^ of tlic iiiuihis ricfiidi of 1S!>2, seized the Oxrai- (iiiif Ildttif, and, as sliown hy tlie testimony, took tlie vessel to Unahiska, and thereafter (J(ini- nianiU'r Kvans, of tlie l'o/7i/o/(V/, delivered her to Cap- tain I'arr, of Her ^lajesty's navy, eoniniandinji' the ^Lflpimiciir, and rejavscntinji' in Herin^' Sea " the authorities of the nation to which she l)eli»niven in the court Ex THE OSCAK AND HATTIE. Ih'Iow had ('stiil)lisluMl tliiit tlK'\('ssi'l nniiniitU'd no a(-t ill vi(»ljitioii(»ttlKM'(iiiviMitioii(>nS!l2(»r in violation of Her A[ajc'st\'.s order in council pursuant to the Herin^- Sea fishery act of 1891. The (hifir lunl lldflic had I )een sold and the owners claim to have suffered a loss as the result of the schooner's sale for less than her real value. The pro- ceeds of the sale, tojicther with costs, were decreed to the owners. The Tinted States contend that the caiitain <»f the rev«'nue cutter Maliinni had reasoiiahle cause for seiz- in{' lS!l-_> |»v hoth (Joverniiients, as contained in the Fislierv act' of 18;>1, and in the instructions of the Governi'iieiit of the I'nited States to her cntters in l?eriii«i' Sea, was a reasoiiaiile and, moreover, the controlliiiji' construction. The captain of the Moliiniii found the vessel within the jtrohihited waters. iiavine, from as aiithoiv itative sources as the I'arliameiit of (Jreat Hritain and the Kxecutive Department of the ({overimieiit of the I nited States, reasonable jiround for seizure, and thereupon, in the performance of his dut\-, seized the vessel and turned her over to the "anthoVities of tiie nation who alone had jurisdiction to trv the orfeiise and impose the penalties fv I'arlia- mentarx act, declared what conditions would constitute reasonalde ••rounds for seizure, and one of her citi- zens can not recover damages from the Tiiited States because the olHcer of one of their cutters, lindin' jurisdiction to try the oti'ense and impose the jienal- ties." and without the decision of the commander of Jler Majesty's fleet in Ucrin^i' Sea, tiie (Kscar itint Ildlfic wimhi not have bei-n coiidcnuKMl and forfeited. The commandinii' oiHcer of the Mi//i.re not liable for the loss to the THE 08CAK AND HATTIE. daiiiiauts. Tliis i« the law as unifonnlv hold, and althoujih it may work hardship in indivicUial cases, the decisions of conrts have established it as the rule of law most universally just. The decision of international tribunals and of the courts of l)oth countries wherein this rule of law has been declared, have been cited and connnented upon in another i)art of this argument. 483 1: '■I' I' 'f 1 ■ ' ', . 1 1 i •if . i B.,1509., 40. U., 1510, 32. the winifred. Claim No. 24. line 'riie Mivt/ml wjis seizi'd on tlio 2()tli of July, IHil'J, in Hcriiifi' Scji, tor a viobition ot" tlie Hindus rtrviidl of 18!»-->. The coniniMiuU'r of the United States revenue-cut- ter L'iclianl Jt'nsli upon that day niacU' this entry in the h»ji': At 8.15 stoi>])C(l and boardeil sclieoiier U'ih //Vcrf, of Vic- toria, (i. M, O. IJaiKsen iiiast«'r. Found her with tour dead luiskiinied fur seals on deck, six others .salted, and one taken later from the Wi)iiJ'rc. m. Pursuant to the ( "onvention l»etween the I'liite*! States of America and (Jreat Hritain for the renewal of the iikiiIks rirriidi of iS'.ll for flu' year 1S92, the W'niifnd was towed to I iialaska and "handed over as soon as practicable to the authorities of the nation towiiich she Itelonii'ed." for the purpose < if ha vinj^' the crew tried and the xcsscl condemned. '""^^ I'nder -: At 10 a. m. United States steamer Yorhiinrn airived in port. Commandinfi o(1ic»'r paid otlicial call on Commander I'^vans. Later t'onunander Evans and Captain I'arr, L'o.val Navy, (!ame on board and conferred with (;onnnandin<>' ollicer as to disposition of seized schooner Wiiii/rcd. ^fl r^ THE WINIFRED. 486 k • ■ 1'liis ciitrv shows tliat prior to tlie-JItlidiiy ot'.Tuly C'aptniii (!oiilsoii lijul arrived at I'luilaska with the Win if ret ill tow. Cfiptaiu Coiilsou testified that "Ciiptaiii Parr,ot' the H.-J^"' ""« Royal Navy, known as the senior officer of Her Majesty's tieet in tlie |{erinj>Sea waters in eoiniectiou with the iiioihis riiritili, and Capt. Hohley 1). Evans, ao. and tl le couunaiKlniii'o ffi- le senior ottieer o .f tl le of the I'nited States Nav cer of the Yorhtmni, also tl American fleet, and Captain C'oulson, of the reveinie cutter //».s//," were to;>vther in conference oiithe-i7th of duly. As the result of that contereiice Captain Coulson advised the Secretary of the Treasurv at Washin;^- ton as follows: On July L'7 CoimnaiKler Kvaiis, liiitcd States Navy, and l(., ir.i5. Vuitt. A. II. Vhaxf I'ari; h'oi/al Xiiri/, commdnilhuj llcr Mtijcsti/' I I'd I I'ltrcv in lln >i{f Sfii, met by appointment on board the li'iish, and after a full discussion of the matt«T it mm )if Captnin I'arr that liis (iorcrnnimt ironld ir«ire tin; ilfiht of cnstodi/ of fin- sri:f. Hansen, and crew, for violation of the I'nited 8«ites revenue laws, as al)ove cited, and as soini as the lU'cc^ ;ary papers can be i)rocared, she will l»e delivered into the custody of lacutenant-Commander Tanner, of the I'liited States Navy, commaudiiiK T. S. steamer Alixitross, for delivery into the hands of the United Slates district attorney at Sitka. This letter discloses that suhseipient to the time of the seizure of the Winifred in Heriiitli of .luly, at which time she was seized, as stated in the loji' of the limli, for violation of the Convention l)e- tweeii the United States and (Jreat Britain, Captain 48tJ THE WINIFRED. (.'(lulsuii liad rcfcivi'il iiit'oniiiitioii tlmt tlic W'niifiid had vioIiitiMl till' revoiUK' laws of the riiitcd States (if Aiiifrica. K,, i.-iiH, line ']^i,is iiitonnatioii Captain ('(Hilsoii did not have at the time ot" the seiziu't' of the Wiiiifri'd in Merin^iSea, E., 151«, lint) 111' l)ein ^^I'l'i"'* ^1'*') \^'\t\\ her boats, tackle, ai)parel, itN. p. 327. furniture, and carji'o, was lilieled for a violation of the revenue laws of the United States. '"oyi/''*"' !'■ Her owner, Charles Spiinj;-, filed an answer to the merits, not raising' the (juestion of jurisdiction. A stipulation wa.s signed agreeing that testimony THE WINIFREIX 4«1 be taki'ii in tlic city of Vict( cliiimaiit to tin; vessel pursuant to wliicli the testi- nioiiyofCliarles Spriiij-', the owner of the vessel, was »ria on hehalf of the '•'^''''''''<' !'• .itii. K.\liil)itN, p. le ease eanie on tohe^'^l;:;'"'- 1' taken in his own hehalf On the 1st of March, 1S94, tl heard in open conrt, on the pleadin^rs and proofs, and'^xii a «lecree was entered "that said schooner Wiiiifivd, " her hoats, tackle, apparel, furniture, and car;>(i, and dl proi)erty found upon or appertaininji' to said vessel liitH, X\\. he. and the same are herehv, condenuied as forfeited to the United .States." On the LMith of Aia-il, 1S!I4, tl e court decreet 1 that the Wniifml, her hoats, tackle, apparel, fiu'niture, and KxIiiliitN, p, carji'o should l)e sold after th ;qi. e usual notice In accordance with the decree of the court th Wiiii/nd was sold and 1 K'canie a total h th ow ner. Charles Sprinji;', the owner, never iilcd a claim for appeal or perfected an appeal after havino^ sui)mitted to the jurisdiction of tl defended the le court anc navm case on its merits. The (u»vernmeut of the Tnited States el; it is not lialtle for the loss to tl lims that K X h i 1. p. 111. le I frr,/. The V >f tl •wner of the IT es.sel was seized in HeriiiL;' Seji f atioii < le iiioihis nni/d with the terms of tl anil o Ifer or a vio- ed. ill acconhiiice le wik/iis, to the authorities of tl nation liavino- jurisdiction to try the olVeiise and the penalties. le imiio.se Captain I'arr, of Iler Majesty's Nav\-. represeiitiiin power of ( Jreat Britain, ordei-ed that the Wiiiifml should he released from trial for a ern- violat'on of the Convention between tlietwo(iov ineiits, and aj^reed that she should lie re-seized 1>\- th Ciiited States and proceeded af>-ainst for a violation of its revenue laws. tl In the Ar<>uinent tiled on behalf of > 1. cut Hrit; le assertion: tin isAi'K. ou be- half ot (J. H., ].. 177, Under said moilm it was iucninbent on tlie United States '""^ ^'' «i2 4S8 THE WlMKHKl). Iff:'!: to tbrtliwitli ddivfi' tlie vcshcI t«» tliv Mriti.sli imtlionc'es, and CiiiimmiKU'i' I'lirr liad no authority wliatever t(» };ive the allcfjed conacnt. and tliercliy waive any delivfiy of the vt'ssfl to tlic Jiritisli autinaitics. Tlic ( iiivoriiniciit of" the riiitcd States coiitciuls tliat the ilclivcry - setpient to the h-tter of Mr. (iresham and pi'ior to the date of the treaty nnder which this lli!.;h Connnissioii convenes, states the position of the I'nited States with ri'ference to the claim of the WinU'rcd. K., 18U0. lino The Honorable the HiSCUKTAUY of Stati;: SiK: Hel'erriny to my tek'fjrani of the Htli instant, lluive tlie honor to state that the ISritish schooner Winifred was seized by steamer li'iisli -Inly -0, ISid', for violation of the proi'l.unation of the President of the I'nited .States and the JJritish lleriny 8ea act of I'arlianient of lf 9, lH\))i. Tlie seizure was made about l'> miles from Aimak Island. After bi'infj towetl to Unalaska, inforiinition was (urnished by Capt. (J. 1j, Hooper, commanding; the revenue steamer Vonciii, to theeflcct tliat the Wini/ntl was liable to seizure and her master and crew to arrest for violation of the I'uited States revenue laws, i)revious to entering the liering Sea. 4 TIIIC WINIKKEI). 4S9 IlMiii ('(iiisiiltiitioii lu'twccii Coimiiiiiulcr Kviiiis, l. S N aiHl ruptaiii I'air. of IIim .Mii,j..st,v'« Niivv.tlif lutter wiiivtMi Ills (.(.vcMiiiieiifs light of custody until slit- (Miiiid he tried lor vioiiitioii of till' I'liiti'd States n-vemu' laws. IJy direction of Coinnninder ICvaiis, the Wiiiifinl wiis titrmally seized fur violiitinii of the I'nited States leveniie lawsiind taken to Sitka hy the /W//«/»vy the Inited States court at Sitka and sold, and the money has lieeii turned into the Tieasin v. IJesiieetfiilly. yours. \V. K. ("tUTLS, Scvirliirii. 'I'lic I'liitt'd StJit«'s (Iciiy till liiiliilitv tor (laiiuij^vs sustailicd liy the owiicr'of the Wiiiifird, l.iit 7li(. sclicdiilc jittiiclicd tu the <-laiiM in tlic Arjiuinciit cdii- tJiiiis sonic items, rcffrcnct' to wliicli will lie iiiadf. Tlic sciil skins cliiiiocil for were all taken in viulii- tinn "f the law ut' tlie nation tu wliicli the owner of the nV//;/)y7/ owed alleLiifinee, and to award any sum lor a eatch of'sejils niaiii contrary to the laws oV hotli (•(.untries would he a-aiiist iiuhlic iioliev. This rule of law seems to hiix'e heeii [lartially reunrded, for no claim for u ]tros|iective ciitch which would Imve Iteen taken in violation of the ( 'oii\ cntion of 1S!»2 hetweeii the I'uited States an'raph ."» of the convention of Feliruary, ISl'fi, aIthouy the master ani)7. liiii ill. were Ihreateninj:' to make seizures, and they refused to f;o. (,). What reason did they , jCu assign to' von for refusiuu' toj.0? A. All they wanted to know was whether 1 was a ricli man or a poia' man: if I had lots of money to ])i\\ them if i got seized. I told then no. They then refused to jjo. (,►. Was there any reference made bv them to the fact of "•.'..'"'■^'' '' their haviiij; been being seized ? in IJering Sea before and after (having) A; _^'l\s^ They said they had sulfered great hardshijis and liay for would not go again unless I would guarantee their what kins they might have when the vessel got seized (). What did you do then A. Went back to \ictoria. K., ir.37, Mr i:i. Oi 1 cross-exaininatioii Captain I'axtoii testified: <). Voii say these Indians threatened you about the !»tl or iL'th of May? A. Yes; something like that. i). And tliey were afraid they would not get tlieir [lay? A. Yes, sir. if. For the skins they actually took .' A, Yes; that is. if the vessel was seized, atnl I ilon't think llicil iCDiiltl ciihvt: (). They asked you if v A. Yes. W., ir.ns. Ii oil were a rich man or a jioor niiiii '! K., l.-.:W, liiii! in. Q. If yon had been . ' The only other witiies- orodiieed on htdialf of ( Jreat Hritaiii who iiad a personal kiiowled^ic of the occur- 492 THE WANDERER. I W., ir>41, 1 ID. w., i:.ii li.'. roiict's wjijs AujiUsU' Hjt'iTO, iiiiite of tlu' vi-sscl iit the tiiiu'. <}. hi (^. U',(,v there any other rea,son assiyned for their refusiny to '• yo to lleriny Sea. A. \o, sir: not that I knotr of ( )n cross-cxinniiiiitioii tliis witness tt-stiticil us fol- lows: K., i.vil, line i^. Did unyoiie on the .NVi/)/*///tr tell your Indians that there '-'• were going to l)e seizures in liering 8ea? A. / do not knoir a'here the Indians heard that there a-as yiiiny to he seizures in lleriny Sea. The first time they spoke about it was at sea. (}. Did you knoa- a-hen they heard it t \. They heard it in their canoes u-hile they were out hnutiny. Hill' (i>. < attain I'axton him.scH' did not want to turn around because he was afraitl of seizure? A. Cajitaiu I'a.rton, I fancy, a-autcd to yo to the lleriny Sea if he could yet his Indians to yo. (.}. .\ud it was because the Indians did n'e of snch a proc- hmiation. or that tlie refusal of the Indians to pro- ceed to l?erin,u' Sea was based upon a knowledoc iti this prochiniation. The only reason yixen foi^ the breakiuii' up of the voya;>-e is, as shown in the testi- mony quoted above, tiiat the Incbaiis were afraid that Captain i'axton wonid not l»e abh' to pa\- tiiem for the seals they had already taken in case the \t'ssel .shonld lie sei/.ed. If Captain I'axton had been a man tinancialh- re- sponsilile, the Indians. a< shuwn by the ti'stimoiiv of both witiiesses.woulil liM ■■ proceedetl on their vovie'v. The Aru'imient iiled ..n lielndf of (Jreat Hr'itani, althoiiji'h containing;' a reference to tin- proclamation i>f the President, makes no (daim t!i;ir the pnxdfmia- ticMi was the direct cause of the interiMiption of the ir^n/r/r/T/'.v voya,<4t', or that it was even remotidy c((n- iiected with the refusal of the Indians to continue the voyage Ix-yoiid Cape Scott. Hveii tlionji'h the claim were made, it is not aiipreliended that it would be seriously advanced to liase a demand for damages upon. The only evidence in the Kecord, moreover, of the publication of the proclamation of the I'resident of the Cnited States, under date of March •_»!, issii, is a h'tter from William Windoiii, Secretar\- of the 493 494 THE WANllEREK. mill 40. 51. Tivjisurv, addressed to ("jii»t. I.. (J. Sliepiird, ecmi- niiindiii;:- ollicei' of the revenue cutter Hiis/i. Tliis letter coiitiiius the first instructions ji .-en to tlie coni- niiUiiHn^' otlicer of tlie cutter wliich was to jjatrol Heriuji' Sea in llie year ISS'.I, and hears date ^lay '2l\. Issii. In his testimony tlie captain of the W'aii- i;.^i.i;iT. line ,/,.,■,,;. .states that the panic of the Indians occurred ahoiit the !lth or 12tli of .May. It is certain that the ''"*' H'diidcrn- was in the port of Victoria May ■_'."!, ISSK, for upon that day a charter party was made. 'I'lu' publication of the proclamation of the President after the date of the niniiny of the Indians, and instruc- tions ;.'iven to the captain of a cutter in the service of the Tnited Stat«'s after the date of the refusal of the Indians to procee(l to IV-rini;' Sea, will a.ssuredl\- not be advanced as the cause of the interruption of the voya<:e of this \cssel. The lindin;is of fact of the Triljunal of Arbitration, at l'aris,discloses that the nature of the warninjis ' made m crniii' Sea, is beyond (piestion The captain of the Wandnrr landeil the Ind who had refnsed to proceed with him, ami conclndiny that it was too late to pick np a crew on the west lans 495 coast of \'anconver Island another crew, i)nt proceeded to \'ict R., ITiSM. li til : maoe no attempt to secure k.. ir.Hit, u, oria. lie maile no attempt to secnre a crew of white hnnters. and ^iives as the reason for his failure to do so the fact that "A poor man conid not atford to em- ploy them." the rule of law is well settled that a claim for damages can not be based solely npun the fact that the peculiar financial condition's of the individual (•omplainin<>' were the cause of tl tain I'axton had been in a fi R., l.Md. liii le unurv, If < ai)- nancial condition to operate^ iiis Imsiness he would have had no tronbli with his Indian crew and there would lie ik. claim before this Ilij^'h Commission. The Aro'iiment on behalf of ( Jreat IJritaiii mal. Kes no reference to the earnin««s' of this vessel under the ":."*:<:(. H jiTeeiiieiit, in pursuance of which the vessel | ('een the contrarv, the claim IJ)(i THE WANIHiRER. ]{., lltIK). K.. 1538, 10. R., ir>:i6, is iiiiidc tor tlic viiliic of tlic use of tlic Wainlnci ''""(liiriiiji' tlic I'litii'*' sciisuii of ISS'.I, iilthoii<>li she left Victoi'iii for ;i voyM<;«' to Sliiiniiij>iii Isljiml on tin- 23(1 of Miiy. I'ossihly tliis cliiirti'V piirtv is not rcfciTcd to Itcciinsc of tlif fiict tliiit tlic cliiirtcr vjiliic of this vessel, viz, >slt)0 |)er month, in iiddition to the wii^t-s of the crew jiiul the cjijitiiin. docs not coinpiire favor- iibly with the jiTossly exjiii'ji'criited c'iiini of >^18.447 for the use of this vessel from the Idtli diiv of .liiK, line or the bejiinniiiji' of the sciilin^'_*(Kt." riicrc is no testimony iiitlic Recordto su|i]»ort either (diiim, iiiid no reference is made toan\- tcstimom'. '""' The Wiiiiili'iir was not oiitlittc(l for a vo\ay the tcstinionv for which it is cliari>Jon of the words "British subjects" in the convention was a moans of enlargement of the jurisdiction rather than of limitation. In support of the British contention a reference to the diiter- ent drafts of the convention is invited. In the first draft proposed by Groat Britain, the article referring to the assessment of compensation simply stated that :— "The two commissioners shall assess tho amount of compen- 20 sation to be paid in respect of each claim " without referring at all to the nationality of the claimant. In the counter draft proposed by the United States, Article I, stated : — "The high contracting parties agree that (ill claims of Brit- ish sulijects for i7ijuries sitstaineii btj thcin in BchriiK] Sea for which compensation is claimed to be due from the United States under the Award of the Tribunal of Arbitration shall be referred " In the next draft, tlie verbiage of the assessment clause was 30 altered so as to read : — "Tho high contracting parties agree that all claims of Brit- ish siih/ects for injuries sustained and for whicli compei\sation is claimed to bo duo from tho United States under tho Award of the Tribunal of Arbitration shall be referred ." This clause was also made the subject of objection and another draft was proposed in which tho assessment clause read as follows : — "The high contracting parties agree that all British claims for injuries sustained and for which compensation is claimed 40 to be due from the United States under the award, &c. shall be referred ." Siibsotpiontly this clause was amended and the clause in the present convontion. Article I, iinally agreed upon. It is, therefore, ap[iarent that in tho negotiations previous to the final settlement of the present convontion the United States contonded for terms which would strictly limit the in- ipiiry to the claims of British sulyects, whilst Great Britain all along contended fora broader agreement and as iinally crystal- lized into Article I, „U. claims on account of any person, it matters not of what nationality, in behalf of whom Great Britain is entitled to claim compensation are to be considered. ^ In dealing with the interpretation and scope of the Conven- tion, the United States ccnnsel seem to ignore Article I, thereof, which is most comprehensive as to the claims agreed to be referred : — 10 "The high contracting parties agree that all claims on account _ot mjunes sustained by persons in whose behalf Great liritaui 18 entitled to claim compensation from the United btates and arising by virtue of the treaty aforesaid, the award and the findings of tlie said tribunal of arbitration, as also the additional claims specified in the fifth paragraph of the pre- ainble hereto, shall be referred to two comnnssioners, one of whom shall be appointed by Her Hritamiic Majesty, and the other by the President of the United States, and each of whom sliali be learned m law." 20 "Appended to this convention is a list of claims intended to be reterred." The different drafts interchanged before the terms of reference were finally agreed upon are not without interest on the question of construction or interpretation ot this Article of the Convention. The fourth draft contained the words: "The higli contracting parties agree that all British claims or injuries sustained * * * * and including those reterred to in Appendix. A, shall be referred. 30 The fifth draft contained the Wdrds : " The high contracting jmrties agree that all claims on account of injuries sustained #*##:)(< shall bo referred, &c. (Articie I.) * * * * * * Appended In this cnnrention is A LIST of the claims intended to lie referred. (Article III.) This language in the next two drafts was not changed, but the latter part of Article I. in the final draft became :— ''Appended to this eoneention is A LIST of claims intended 40 to be referred. To adopt the felicitous language used in the opposing argu- ment (p. 3:J) " tlie Commission is limited to the consideration of claims for injuries that arose out of the assertion of the claim of the United States to juiifdictional rights in the waters of Beiiring Sea, wilh reference to seals, which is the subject matter of that Treaty." (The Treaty signed at Washington 2t)th February, 18!»2.) ' 6 V Under tlic titles " Claimants — British, domiciled in the United States" and " Claimants— Citizens of the United States" (pp. 40-6(j), a nnmber of authorities are cited and commented upon, some of which will now be reviewed. Reference is made (pi>. 41, 42) to the Mixed Commissions of 18.53 and 1871 in connection with the " Laurent" case and the " Barclay " case. The following is the head note of the report of the " Laurent " case ; " Where claimants, who were originally British subjects, had become domiciled in Mexico ami continued to reside there, jq engaged in trade, during war between Mexico and the United States, held, that they had so fiir changed their national cha- racter that they could not be considered ' British subjects ' within the meaning of those terms as used in the convention for the settlement of claims of British subjects upon the Gov- ernment of the United States." (Deciaious of Commission of Claims under Convention of 1853, p. 120.) The facts in the " Barclay " case were as follows : " The claimant, a native born British subject, Iiad resided in the United States for many years prior to 1858, for the 20 greater part of the time engaged in Her Majesty's Consular Service. In 1858 he took up his residi'uce in the State of G :orgia. where he became the owner of two plantations, leased a .bird, and cultivati'd and carried on all three. His claim was ft' acts of devastation and jiillageconnnitted by General Sher- nan's army on all three of his iilantatioiis, and for the appro- f riat'on and occupation of two of tiiem." The United States demurred to the claim. The following was the unanimous decision of the Commis- sioners : 30 "The first thing to be decided in this case is whether the Commissioners have jurisdiction — which depends upon whether the claimant is, within the meaning of the Trt'aty, a British subject. "That he Is in fact a I'ritish subject, there is no doubt ; but it is contended that being domiciled in the United States, he is not one of those intended b}- the franiers of the Treaty to be included in that term. It is undoubtedly true, as ai>|iear8 from various cases cited in the arguments that the subject or citizen of one State, domiciled in another, ac([uire8 in some 40 respects privileges, and incurs liabilitifs distinct frimi those possessed in right of his original birth or citizenshiji. I3ut ho still remains the subject or citizen of the State to which he originally belonged, and we see no reason to suppose that it was the intention of either Government to put the limited meaning on the words ' Jiriiish subject ' contended for in the arguments in support of the demurrer, so as to exclude from our jurisdiction a British sul'ject who has never re- nounced his original allegiance, or Income naturalized in any other country." (Ibid, p. !l.) 50 The "Laurent" case was one of the cases cited by the United States in the argument with the "Barclay" case. (North America No. 2 1874,Accountsand Papers, 41, lxxv,p[i. t)and9.) nJ The quotation (p. 46) from Wliarton will be found to be in- complete ; it should have been aa follows : " The country whose 'protection' is invoked cannot, it is conceived, properly interpose in sucli a case unless the muni- cipal law, the violation of which is charged, contravenes some right of such country acquired by treaty stipulations or otherwise. The princii.le does not at all interfere with the nght of any state to protect its citizens or those entitled to its protection when abroad from wrongs and injuries, from arbi- 10 trary acts of oppression or deprivation of property, as contra- distinguished from penalties and iiunishmonts, incurred by the infraction of the laws of the country within whose jurisdiction the sufferers have placed themselves." (Wharton, Int. Law Dig., vol, 11, page 434, sec. 189.) 1 Kent, p. 70 deals with domicile in time of war and the authority is therefore inapplicable. The same as to 1 Dod Adm., p. 224. 20 A reference to Bluntschli, (Int. Law), cited in opposing argument (p. 46) will show that the author is dealing with a state ot facts entirely diHerent from and ir.elevant'^ to the circumstances of this inquiry. The quotation (p. 46-7) from 6 Webster's works (pp. 522, 523) is aiso incomplete ; it should be as follows :— " The general rule of the public law is, that every person of tuilagehasa right to change his domicile; and it follows that when he removes to another place, with an intention to' make that place his permanent residence, or bis residence for an indelinite period, it becomes instantly his place of domicile- * * * # ' # ' 30 " T/ie Supreme Court of the (Jintcd ^'tates has ,leddal 'that a person who removes to a ihreu/n eounlry, settles himself there and eiuiages hi the trade of that country, furnishes !»/ these acts such evidences of an intention perniane'ntl)/ to reside in that country, as to stamp him irith its national character ; ' and this undoulitcdly is in full aeemlanee aith the sentiments of the most eminent writers, as well as with those of other hiijh judicial tribunals, on the subject. No yoiurnment has carried this general presumption farther than that of the United States, since it is ^yell known that iiundrcds of thousands of persons are now 40 living in tiiis country who have not been naturalized accordiii"- to the i)rovisions of law, nor sworn any allegiance to thi's government, nor been doniicilod amongst us by any regular course of proceedings. What degree of alarm would it not give to this vastly numerous class of men, actually liviuir amongst us as inhabitants of the United States, to learn that; by removing to this country, they had not transferred their allegiance iVoni the govornmcnts of which they were originally subjects to this goveriunenfr And, on the other liand"^ what would be tiie condition of this country and its government, if 50 the sovereigns of Euroiie, from whoso dominions they have emigrated, were supposed to have still a right to interpose to protect such inhabitants against the penalties which niii!,-ht bo justly incurred by them in consciinence of their violation of the laws of the United States? In questions on this subject the chiet point to bo considered is the animus manendi, or 8 intention of continued residence; and this mnst be decided by reasonable rules and the general principles of evidence." (Webster, Vol. VI., pp. 522, 523). The italics sh.jtv the portions not quoted in the opposing argument. It is argued (p. 47) that in (he Koszta case the right was assorted by tlu' United States to proti'ct a domiciled person, although unnaturalized, against every nation except the nation of his original cifizenslnp. This qualili cation does not appear to be borne out by a roforcnco to Wharion from which the 10 quotation is made as can be seen from the following: " * # * and what n^asons can bo yivou why, so fur at least as regards jirotoction to person iin.) The country of original allegiance is entitled to protect 30 Its own subjects or citizens whether domiciled within its ter- ritory or in a foreign country, except in the latter case for acts in violation of the laws of the country of domicile whilst in tliat country or withm its jurisdiction. Both these propositions are supported by the authorities already referred to. In the United States' Argument (p. 63) what is called " the undoubted rule in this case " is laid down on the authority of Bar's private International law as follows :— '' The. state of roved were that the negroes were kidnapped, and the papers therefore 20 fraudulent and untrue ; under these circumstances the Court held that there was no proof that the property was tlie claimants' and that they could not rest their demand to be given the benefit of the treaty, on a fiaud. The quotation made (p. 79) to give a better idea of the opinion, should be completed as follows : — " Nothing is more clear in the law of nations, as an established rule to regulate their rights and duties and inter- course, than the doctrine, that the ship's papers arc but prima facie evidence, and that, if they are shown to be fraudulent, they are not to be held [noof of any valid title. 30 This rule is familiarly applied, and, indeed, is of everyday occur- rence in cases of prize, in the contests between belligerents and neutrals, as is apparent from numerous cases to be found in the reports of this Court ; and it is just as aiiplicable to the trans- actions of c ivil intercourse between nations in times of peace. If a private ship, clothed with Spanish papers, should enter the ports of the United States, claiming the privileges and immunities, and rights belonging to bona fijection is, that the plaintiff had not shown a 10 compliance with his warranty. The insurance was upon 'the good American .«hip, called the Rodman.' These wordsamount to a warranty that the ship was American, according to the settled construction of the phrase, both in this and in the Eng- lish courts (1 Johns Cas. 341. 2 Johns. Gas. 168. 3 Bos. and Pull. 201, 506, 510, 514, 531. 6 East's Rep. 382). A warranty that the property is American, undoubtedly means that it is not only so in fact, but that it shall be clothed with the requisite evidenccof its American character, for the purpose of protection, and in reference to the law of nations, under the 20 sanction of which the voyage in (piestion was to be conducted. (1 Johns. Cas, 365. 2 Johns. Cas. 148.) It was proved that the ship was owned by the plaintiff, and that he was an American citizen ; and from the case we are to conclude, that the ship had all the papers requisite for an American vessel, except an American register. The case is somewhat equivocal upon that point, but this we think to be the better construc- tion of it If she had not the documents required by our treaties, it ought to have been made a distinct, substantive gronnd of objection at the trial. The case states that ' the 30 defendant's counsel moved for a uon suit, on the ground that the vessel was warranted by the policy to be an American vessel, and that the plaintiff" had produced no proof of her being such ; but that, on the contrary it appeared, from the testimony in the cause, that she was only a sea-letter vessel, without an American register.' This was an admission that she was a sea-letter vessel, though the competent proof of that fact is not disclosed in the case, and the defendants evidently placed their niotion for a non suit on the single ground of the want of a register. If anything was wanted to "show a com- 40plianco with the warranty, except the register, it ought to have expressly b/en so stated The presumption raus't be, after verdict, and upon this ease, that every objection was supplied. We are then reduced to this single point', was the want of a register a breach of the warranty ? At the time the policy was underwritten, there wore two kinds of American vessels, the one registered, iind the other unregistered and carrying a sea-letter, or iin otficialcertiticateof ownershii), and both kinds vyere recognized by law, as American vessels, though the former was entitled to higher privileges under the laws of 50 (k)ngress. (Luws U. S. \'ol. 6. 72). But, in reference to the law of nations, and to security upon the high seas, both species ot vessels were equally entitled to protection as Ameri- can property. There was no use in retjuiring a register for any object within the purview of the warranty. The want of it did not enhance the risk. 'It is a known and established rule,' says Sir William Scott, in the case of the \'igilantia, (I Rob. 113,) that if a vessel is niivigating under the pass of a foreign country, she is considered as beiiring the national character of that nation under whose pass she sails; she mukes a part of 60 its navigation, and is in every respect liable to be considered as a vessel of that country." (Johnson's Reports, New York, Vol. 8. pp. 319-20.) M ffltw 14 Art to Unitod Stiitew rs. Rogers, citod (p.TS) the t'liets of tlio case oil ret'oreiico show it to be entirely iimpplicablo to the pre- Bcnt inquiry. The i)oiiit involved niid decided was thai the Courtfl of the United States liiive jurisdiction under a certain section of their Revised Statutes to try a person for an assault committed on a vessel belonging to one of its citizens when such vessel was in the Detroit River out of the jurisdiction of any particular State (See 150 U.S. Rep., p. 240). No question whatever arose as to what would have been the ^" result if the vessel, although flying the American flag, and regist(!red as an American ship, had been in fact or in part the property of a foreigner whose name did not appear on the register. The facts show beyond question that the vessel was in every sense a United States' vessel and the judgment must be read in light of that fact. The case of the United States rs. Brune is referred to (p. 76) as holding, " that the registry was not even prima facie evi- dence of the ownership." The indictment in that case charged) -" " that Brune, being second mate of the brig, " Fame," oinved by a citizen and citizens of the United States, did forcibly, felon- iously and piratically receive, aid and abet in confining and detaining on board such vessel 400 negroes with intent to make them slaves contrary to the form of the Act of Con- gress." The judgment was as follows : — " The very gist of this indictment is the ownership by a citizen or citizens of the United States. The Act of Congress makes it so. The indiotnicnt properly alleges it, and it must 30 of course be proved. The registry, though it may perhaps be evidence of ownership lor some purposes, is not even prima /WciV? evidence of it in a criminal prosecution like this; nor would oomiiion reputation be. You must show the fact of ownership, as j-oii generally show other facts ; proving it by witnesses whom the dofendant may cross-examine. The man, who swears that he owns the vessel, may have sworn to an untruth, and she may not be owned, either ' wholly or in part, by any citizen of the Unitod States ' at all. And even if the persons set forth in the registry as owners, were owners at the 40 (late of it, their ownership may in point of fact have ceased before the alleged piracy, though the proper entry or no entry may have been made at the custom house." (Wallace Jr's Reports, 2, pp. 206, 267.) The quotation (p. 81) made from the report of the British Agent on the Claims Commission, 1871, is advantageously continued by adding tlie two immediately succeeding jiara- graphs, namely : — "But if the theory of Iler Majesty's counsel he the true one, that these claims are, in fact, the claims of llcr Majesty's 50 Government in respect of persons entitled to the protection of 16 hor laws, it would bo no aimwor to tlio claim brought by Sliormau himself to show that ho was an Amorioan citizoii," " And this caso thus milly uffords a touchstoiio for tho en- tiro doctrine iiropounded by Ilor Maji'sty's counsel. Tho claims to bo passed upon by the XTItli 'Article of the Treaty are_ not claims of Her Majesty's *Jovenimont against the United States, or claims of the United tStates against Her Majesty's (iovernment, but are simply, as stateil by the Treaty itself, claims of citizens or subjects of the one government 10 against tho otlior government. As such they are not to be measured by the rule determining what are grounds of inter- national complaint by one nation' against another, but where tho mnnicipal laws of the two countries agree, by the rule of such municipal laws, as to what constitutes a valid claim grow- ing out of acts committed by the adverse party." (Ueport Mixed C^mmiissiou British and American Claims under Treaty 1871, page 567.) ' In further support of the liriiish contention on the several points hereinbefore dealt with, referer ce is made to tlie foUow- -0 ing authorities: — F. do Martens, Traito de Droit luternational : _ " De iios jours on admet comnie nxionic du droit interna- tional positif, (jue rOc(5an est entii'renient iibre et (lu'aucun Etat no pout y o.xercer sa puissance, quand memo, en fait, il aurait les moyciis d'y dieter la loi aux autres jiays. II s'ensuit quo tons les navires, quand ils sont en pleino'mer, obeissent exclusivcment ti I'Etat dont ils portent le pavilion. Cette regie sert de point de depurt a beaucoup d'autres regies juri- di(jues de droit international public, prive, ou criminef, qui out 30 iiicontestablornont une immense ''oportance pour les relations et les transactions universelles pur mer." 11). page 496, sec. 97 : "Le principe de la libertc de I'Ocean est fertile en conse- quences juridi(iues et pratiques extrSmement importantes. L'Ocean est libro pour la navigation et les communications de tons les peuples. II ne pout Stre interdit h. aucune nation de s'adonnor en pleine mer a la pSche et ;\ d'autres ontreprises pacitiques. Si toutes y posscdent un droit cgal, il s'oiisuit qu'aucun fitat ne pout y imposer ses lois aux autres, faire 40 passer en jugemeut dos navigateurs ou marins etrangera, ni arreter ou visiter des navires d'un autre pays. Tons les navires qui so trouvent en pleine mer sont soumis exclusivement h, la juridiction de leur propre Gouvernement. Tous, et particu- lieremont les ilottes et les navires de guerre, y sont consideres comme des portions detachoes de la patrie." Sir Robert Phillimore, in his Commentaries on International Law, vol. 1, page 458, says : — "It will be sufficient to remark here that the right of juris- diction and authority over a merely commorant foreigner, 50 though he bo sabditus tempornrius, does not extend to compel- ling him to render civil or military services, or to the power of tryii\g or punishing a foreigner for an offence committed in a foreign land. ... So long as there are ditferent states with different laws, no single state can have a right to punish, by its own laws, citizens of another state, for offences cora- ■I ' I; 16 niitted in places over which it lias tin jiirigilictinii, or to piiiiirth uccordinj; to whut it may coiifcivc to lie tlu' hiw of tlio jthice whoro tho oU'ciico was coininittod. "Thirt assumed jurisdiction is (h)iilily rcprohcii8il)le. Kirst, as i)einjj nsurpatioii of tho ri^'lilH of aiiotlier statu; and, sec- ondly, as hoinj; a violation of what lictftcrjiistly calls a ruling nuixim ("horrschendc Orundsat/") of all ('onstitutional States, that no nuin can ho withdrawn from tho trilainal to which ho is naturally and legally subject, and compelled to plead before iinotlier (I[e)ltor, 66;J, n.)" 10 Chief Justice Marshall of tlie Supremo Court of the United iStatos, in Hobo vs. llimely, 4 Craneh, p 27i>, states: — " It is conceded that tlio logislaticm of every country is territorial, that beyond its own territory it can only all'eet its own subjects or citi/ens. It is not easy to conceive a power to execute a municipal law, or to enforce obedience to tluit law, without the circle in which that law operates. A power to seize for the infraction of a law is derived from tlu> Sovereign and must be exercised, it would seem, within those limits which circumscribe the Sovereign Power. The rights of war may 20 be exercised on the high seas, because war is carried on upon the high sens ; but the pacific rights of sovereignty must be exercised within the territory of the Sovereign. If these pro- positions be true, a seizure of a person not a subject, or of a vessel not belonging to a subject made on tho high seas for the breach of a municipal regulation, is an act which the sove- reign cannot authorize." Wheaton, Elctueuts of Int. Law, Part .11, Sec. 78, p. 183, says :— " The second general principle is tliat no State can, by its 30 laws, ilirectly affect, bind, or regulate pioperty beyoml its i>wn territory, or control persons whi> do not reside within it, whc- tlier they be native-born subjects or not. Thisisa consequence of the first general principle (b'oelix. Droit Int. Privi', s. 9) ; a ditforent system which would recognize in each State the power of regulating persons or things beyond its territory, would exclude the equality of rights aniong diitcrent States, and the exclusive sovereignty which belongs to each of them (Foelix, Droit. Int. I'rive, s. 10)." Again (Part II, Sec. lOfi, p. 169) :— 40 " Both the public and private vessels of every nation on the high seas and out of the territorial limits of any other State are subject to the jurisdiction of the State to which they belong. Vattel, >ays the donniin of a nation extends to all itsiirst possessions; and by its possessions we are not to understand its territory only, but all the rights ('ilroits') it enjoys. And he considers the vessels of a nation on the high seas as portions of its lerritor}' (Liv. 1., cap. 19, sec. 210 ; Liv. II, cap. 7, sec. .sQ) This jurisdiction, which the nation has over its public and private vessels on the high 50 seas, is exclusive only so far as respects otfences against its own municipal laws. Piracy and other offences against the law of nations being crimes not against any particular State, but against all mankind, may be punished in the coni])ctent Tri- bunal of any country wlicre the otlcnder may be found or into which he may be carried, although committed on board a for- eign vessel on the high seas." 17 TTallock, Int. Law, vol. i., p. 215, sayn : — " rultlic imd priviito vossels on llio hij{h hoiih nml out of tlio torritiiriiil limitn of any otlior Stiitc iirc^ HiiliJcM't lo tlio jnriscru^ tioii of tlio Stiito to wliicli tlu'y lu'loii^. 'riuioci'iui is ciniinioii to all inaiikiiul, ami may l)u sucooHHivoly iiacil by all as tlicy have oocartioii." Sir Travors TwisH, in his book on tbo Law of NatioiiH, i liap- tor X., HucH. 157-8 Hays: — " Tlio riffbt of civil atul criminal logiHlation in rcHpcct of all 10 property and pcrsoim within the territory of a nation is an incident of the right of empire. It follows, therefore, that the laws of every nation bind of nulnral rijfht all property situate within its territory, as well as all persons resident therein, whether they l>e natives or strangers, ami that they control and regulate all the acts done or conti'acts entered into within its limits V nation cannot by its laws directly bind pro- perty which is beyond the limits of its territory, nor directly control persons who are not resident therein. This is a neces- sary consequence of the proposition advanced in the preceding 20 section ; for it would be inconsistent with thi; absolute character of territorial empire, if the laws of a nation coidd bind peri-ona or property within the territory of another inition and so con- trol the operation of the laws of the latter nation within its own territory. Rodenl)urg has accordingly observed that no Sovereign Power can of right set law licyond the limits of its territory. ' Constat igitur extra territorium legem dicerc ncmini licere ; idipie si fecerit ijuis, impune ei non pareri, quippe iibi cesset statutorum fundanicntiim, cessant robur et jurisdictio (" Rodenburg de Statutes," Tit. I, chap. :5, sec. 1).' 30 Boullenois lays down a similar rule : ' Of strict right, all the laws by a Soveivign have only force and authority throughout his dominions (Boullenois, " Traite des Statuts," I'rincipes Gcneraux, VI). Vattel concurs in this view when he says : ' The Kmpire united to the domain establishes the jurisdiction of the nation within its tei'ritory. It is its province or that of its Sovereign to exercise justice in all the places under its empire ; to take cognizance of the crimes that are committed, and the ditl'erenccs that arise in the country (Vattel, '• Droit des (4ens," H. II, sec. 84).' No law accordingly is operative, 40 prupriii rigoir, beyond the limits of the territory of the State which has set it (Martens, ' Precis du Droit des Gens,' sec. 86). ' There is no doubt,' writes Chancellor Kent (Kent's Commentaries, Tom. II., sec. 467) ' of the truth of the general l)r()position that the laws of a country have no binding force beyond its own territorial limits, and their authority is admit- ted in other States not ('.c /tropn'o rii/i'ir, but (,'■ ctiDiilntr, or in the language of llubcr "(iuatenuK sinepra'judicio indulgentium fieri potest, ' " itc. Anothei' eminent American authority. Chief Justice Parker, has recognized a similar doctrine in an 50 elaborate judgment, in the course of which he observes that ' the laws of a State cannot by any inherent authority be entitled to respect cxtraterritorially, or beyond the jurisdiction of the States which enact them ; this is the necessary result of the independence of distinct Sovereignties (Blanchard v. Russell, 13 Massachusetts Report, p. 4.' " "P. 285, sec. 173. The open sea is, strictly speaking, millius tirriloriiiiii. No nation can claim to exercise jurisdic- tion over its waters on any ground of exclusive possession. On the other hand, it is the public highway of nations upon which HO the vessels of all nations meet on terms of e(iualit3', each vessel carrying with the laws of its own nation for the government 13 ri— 8 J J .'.< 18 of those on board oF it in their mutual relations with one another, but all subject to the common law of nations in mat- ters of mutual relation botweon the vessels themselves and their crews." Hall (Int. Law, part 1, cap. 2, sec. 10, p. 51) sa^'s: — " And it being a necessary result of indcpcndonce that the will of the state shall be exclusive over its territory, it also asserts authority, as a general rule, over ail persons and things, and decides what acts shall or shall not be done within its dominion. 10 "It consequently exercises jurisdiction there not only wilh respect to the members of its own community and their pro- perty, but with respect to ibreign pen-sons and property. '■ But as jurisdiction over the latter is set up as a consequence of their presence upon the territory, it begins with their en- ti£i::''o and ceases with their exit, so that it camiot, except in a particular case, to he mcnticnied latrr, be enforced when they have left the country ; and with respect to acts done by foreign persons, it can only be exercised with reference to such as have been accorajilishcd, or at least begun, during the presence 20 within the territory of the persons doing them. In principle, then, the rights of sovereignty give jurisdiction in resjioct of all acts done by s' ' '-icts or foreigners within the limits of the State, of all projiei'ty situated there to whomscwver it nniy belong, and of tln)Be acts done by members of the community outside the State territory of which the State may choose to take cognizance. In practice, however, jurisdiction is not exercised in all these directions to an e(iual extent." Dodson's Admiralty Eeport, vol. 2, pp. 243-4. Case of the £ie Louis, Sir "W. Scott says : — 30 " Upon the first question, whether the right of search exists in time of peace, I have to observe, that two principles of public law are generally rect)gnized as fundamental. One is the perfect oquaiity and entire independence of all distinct States. Relative magnitude creates no distinction of right; relative imbecility, whether permanent or casual, gives no ad- ditional right to the more powerful neighbour; and any advantage seized upon that ground is mere usurpation. This is the great foundation of public law, which it nuiinly concerns the peace of mankind, both in their jiolitic and i)rivate capaci- 40 ties, to preserve inviolate. The second is, that all nations being equal, all have an e(puil right to the uninterrupted use of the unappropriated parts of the ocean tor their navigation. In places where no local authority exists, where the subjects of all states meet upon a footing of cTitire eepiality and inde- pendence, no one Stale, or any of its subjects, has a right to assume or exercice authority over the subjects of another. I can find no authority that gives the right of interruption to the navigation ot States in amity upon the high seas, excepting that which the rights of war give to both belligerents against 50 neutrals." Coming now to the (juestion of "Compensation, or the measure of damages,'" (]ip. US ef vf/.) it is proposed to again comment upon some of the authorities cited in the United States argument. As tlie United Stiites counsel (pp. iM-ltT) take issue with the statement madein the Uritish Argument {\>. '25) that under 19 the Geneva arbitration "uanin in lien of iirospective profits wiif iillowci]," it l)oc()ino8 important to liiive tlie fnll text of Protiti^olrt XXIX., XXX., and X XXI., wiiicli will bo [)rinto(l iis an ap])endix iuToto, and which will deti'rniine between the rospectivo contentions of tiie two govcrnmonta. The following is taken f 'om the judgment of Mr. Justice Story in the " Amiable Xarcy " referred to in the United States Argument (pp. 08-101) : " And if this were a suit against the original wrong-doers, 10 it might be proper to go yet farther, and visit upon them in the shiipe of exemplary damages, the proper punishment wiiieh belongs to such hnvless misconduct. But it is to bo considered, lliat thi> is a suit against the owners of the [iriva- teer, upon wIiotu the law has, from motives of ]K)!icy, devolved a respiiiisihility fui' tlie conduct of ilie officers and crew em- ployed by them, and yet, from the nature of the service, they can scarcely ev.T be able to s(!cnre to themselves an adequate indemnity in ea.-.^s of loss. They are innocent of the demerit of this transaction, having neiliierdirected it nor countenanced 20 it, nor partii'ipated in it in the slightest degree. Under sucli circumstances, we are of opinion, that they are bound to repair all tlie real injuries and personal wrongs sustained by the libellants, but they are not bound to the extent of vindictive damages." (Wheaton's Reports, Vol. 3, pages 558-9). The" Columbus" cited (p 101) ln'ingacaseof a collision hap- pening by negligence has no bearing on this case, where the seizures were made with the intenticjn of preventing the carry- ingon of a legitimate business. This remark applies to all cases of collisions cited. In the "Co'iimhus" case the judge in his 30 decision asks if the vessel had heen bound on a voyage to the East Indies with a valuable cargo "for the transportation of which not only would the owners be entitled to a large amount of freight but the master might U" entitled to considerable contingent jirolits from the aJIowan-^s made to him on the voyage. Could the court tiwide the amount of these?" This question he answer* in iiive. lint if one other itf^ ha > the case |hm«. namely, that the collision v i- >''ith the ol)je<-t of pre- venting the mastei i. .-, ... .k- contingent [.niotite, 40 would he then have j-iven thiK mm»f mtmw&r'f In the case ot the " Lm^" aUteifp. KM ) the ciroBflwCamu:'^.* liardly justilieo un allowance tor \om of ]rr*4ii« as wiH ai|>{;«n. I sImkiUI hati* be»'ri glad lo have seen an autlior..y iippi'<"''iiis" of hucIi a-n allowance under circumstances like the proHi'uf. Iifow have fhe«- profits been lost '^ The voyage was not iirwt.«n u)... nor men ttMr of being pursued." 60 (Uallisoifs Reports, Vol. I., p. :ii4.) 20 Parsoiia on Shipping, cited on page 104, is an authority against tlie United States' contention. The antlior says : — " In ineasurini;- the (hininii'e in ii case of eolHsion, all the direct and iinmediate eon8e([neneea are to he taken into con- sideration, as loss of freight, detention, expense, and the like, the rule heing rrstitnlio in inttgriini. Whether danniges are to he allowed for the detention of the injured vessel while undergoing rejiairs, may not ho certain, hut the later, and we think the hetter rule, allows them." And in a note, the following ajjpears : — 10 " In some of the cases ahove cited, and in ' Smitli vs. Condry, 1 TTow. 28, they were \w\ allowed. But tlie last case has heen virtually overruled hy a nidro I'ecent case in the same court, and we consider tlu; well-settled rule of law now to he that, when a vessel is run into while perforniing a particular voyage, or while engaged in the usual course of her employni.'Ut, the profits which she would have made hut for the accident are to l)e allowed. Thus, in the (ia/.elle, at ,y'//).,the gross freight for the voyage was allowed, deilucting from it the expenses inci- dent to its receipt, such as wages, jiilotage, lighterage, ton- 20 luige, \c." (Parsons on Slnpiiing, vol. 1, pp. 588-540. In the case of the C"/"^/", cited (p. 105) the circumstances were of such a peculiar nature as to make it iuapplicahle to the present inquiry. Attention having heen called to the claims l)y Great Britain against Germany for sinking Brit'.sh colliers in the Seine, in 187 1 , cited (p. 107), it will he interesting to notice with Vvliat prompt- ness Prussia acknowledged her liishility. The vessels were sunk on the 23rd Decemhcr, 1870, and Count Bismark wrote acknowledging liahility on the 8th January, 1871. It should -50 also he noticed that the Prussian government claimed that the sinking was done "to avert immediate danger"; no intention to stoj) the carrying on of a legal husiness was suggested. The case appears to have no application, and, at the utmost it would rest on the authority ot Mr. Uotliery, possihly tlie re- gistrar of the Adnuralty Court. In the ease of the " Hiawatha" umler the P.ritish and Anierirnn Mixed Coirniirisiuii of May, 1871, referred to (\i- lOS), the claim was ■' lor indemnity for the loss of commission, which, hut for tlie ciipture, wotdd have heen realized hy the 40 claimants on the sale of portion of the cargo." "A demurrer was interposed hy the Ignited States that tlie injury complained of was indirect and conse(|uential, and not within the jurisdiction of the ("ommisHion. " The demui'ivr was unanimously sustained hy the Coiu- missioners and the eluiii' disinissi'd." 21 The case of the "Washington" is referred to (p. 108), and tlie stiitenient iimdo tlnit "wliile the ruling is not expressly made against prospective catch it is clear tliat that item was not allowed." A perusal of the report donionstnites that no- thing was said to show how the claim was raaile up and cer- tainly the (Commissioners passed no judgment on the point now at issue ; the case, therefore, cannot he fairly relied on by either party. The counsel of the ITnited States are not justi- tlod in drawing the conclusion which to them appears to be so 10 clear. In analysing the case of Tarleton vs. AtcGiauley (I. Peake, page 270) the counsel for t'lo United States (p. 110) erron- eously treat it as a case of trespass, when as a fact it was merely an action on the case in which the damMge alleged constituted the gist of the action. The decision in the case of the Nottir.g-Tlilj (!) P. D. 100) referred to (p. Ill) rests upon the fact " that the loss of mar- ket was an accidental loss not necessarily nor naturally con- sequent upon the delay in the arrival of the cargo." 20 Exception is taken to the comments on the Jiisolufo, p. Ill, 'J'he report of the Registrar was appealed from. The question in dispute was the amount of damage awarded and not a mere question of costs, and the case was cited and followed by the House of Lords in the Argentino, 14 Appeal Cases, 520. In the case of the " Parana" (2 P. D. 120) referred to on same page, the rule laid down by Cockburn, O.J., Meilor and Field, J.J., ill Simpson rs. London and N'ortli-western Railway Comiiany (I t}. H. I). 77), namely, tht;'; "the principle is now settled that whenever either the object of the sender is specially ''•0 brought to the notice of the carrier, orcircumstancosare known to the carrier from which the object ought in reason to be inferred so that the object may be taken to have been within the contemplation of both parties, damages may be recovered for the natural consequences of the failure of that object," was iidojited and the damages claimed were denied solely because the court came to the conclusion that they were not within the contemplation of the parties at the time of the contract. In that case of Simpson rs. the London and North-western Railway Company, tlie court found that the damages claimed 40 were within the contemplation of the parties at the time of the contract, and dealing with the (|ucstion of the uncertainty of ascertaining the amount of the damage sutl'ered, the Ciiief Justice remarked : " As to the supposed impossibility of ascertaining the daimiges ! think (here is no such impossibility ; to some extent iio doubt they mu.it be matter of speculatioii, but that is no reason for not awarding any danuigcs at all." Justices Meilor and Field entirely concurred. 22 On page 111, the statement is made that in Lamb r. "Walker (3 Q. 11, 389) it was held that prospective damages could be recovered, and tliat that case was overruled in l^ailey v. Mit- chell (11 App., 1'27). The questions in these cases were merely as to whether " the damages resulting from one and the same cause of action must be asaessad and recovered once and for all," and as to whether the damages arose from inde- pendent and distinct causes of action. The second pai.igraph quoted from Lord TTerFchcll's judg- ment in the case of the " Argontino" (p. 113) should, wUen 10 completed, read as follows : — "Where no claim is made in respect of loss arising from the owner having been deprived of the eiirning,-^ of a voyage which was in contemplation, and the engagement for whieli had been secured, it would be right, and is no doubt the usual course, to award damages under the name of dernurruge in respect ot the loss of earnings which it must reasonably have been antici- pated would ensue during the time of detention. But where sucli a claim is made, as in tlie present case, the owner cannot, I think, be allowed in addition, as a separate item, demurrage 20 in respect of the time the vessel was under repair. If he obtains as damages the loss which he has sustained owing to the loss of the employment he had secured he is put in the same position as if there had been no detention." (14 App. Cases, 523.) As exception is taken, (p. 114,) to th(> statement made in the British Argument in connection with the Fortune Bay cases, the point at issue may be set at rest by the following quotation from Mr. Kvart's letter of the 1st August, 1879, (72 British State papers, 1880-1881, p. 1282.) 30 "After a comparison of all the depositions furnished to both governments, the United States' (ioverinnent is of opinion that the following fait,^ will not be disputed : — 1. That 22 vessels Ijfloiiging to citizens of the United States * ^ * * went from Gloucester, a town in Massachusetts, United States, to Fortune 15ay, in Newfound- land, in the winter of 1877-78, for the purpose of procuring herring. " 2. That these vessels waited at Fortune Bay for several weeks (from about the 16lb December, 1877, to the tjth ^q Jaiuiary, 187S), for the expected arrival ot schools of herring in that harbour. "3. That on Sunday, the 6th .lanuary. 1878, the herring entered the Bay in groat luunbers, and that four of the vessels sent their boats with aeines to commence fishing oper- ations, and tlie others were procoeillng to follow. "4. Tliat the jiarties thus seining were compelled by a large and violent mob of the inhaliitants of Newfoundland to take up their seines, ilischarge the fish already inclosed, and abandon their tisliery, and in one case at least the seine was gQ absolutely destroyed. " 5. That these seines were being usid in the interest of all the United States vessels waiting for cargoes in the harbour, and that the catcli undisturbed would l:a\e been siitHcient to load all of thein with ])rolltable cargoes. The great ([uaniity, of fish in the harbour, and the liict that the United Slates 28 vessels, if permitted to fish, would all have obtained full (^nrgoes, is admitted in the British depositions. " If the Americans had l)eeii allowed to secure all the herrings in the bay for themselves, which tli-y could have done that day, they would have filled all their vessels, and the neighbouring fishermtii would have lost all chance on the fol- lowing week days." (Deposition of dames Searwell.) " The Anicrican.s, by hauling herring that day, when the Englishmen could not, were robbing them of their lawful and iWju.st chance of securing their share in them ; and, further liad they secured all they had barred, they would, I believe, have filled every vessel of theirs in the bay." (Deposition of John Cluett.) " See also the aflidavits of the United States' Captains." "6. That, ill consequercG of this violen.'e, all t'le vessels abandoned the fishing-grounds, some witliout cargoes, some with very small cargoes, purchased from the natives, and their voyages were a loss to their owners." on 1 "7" '^'^'^^' ^''° ^^'''"li'i.iJ: "'"^ conducted at a distance from any -i" land or hshing privilege, ..r the oecn],ation of anv British subject (See affidavits of AVillard G. Kode, Charles liovle and Michael B. Murray.") ' ' "8. That none of the United States' vessels made any further attempts to fish, but three or four, which wore delayed 111 the neighbourhood, purchased small supplies of herring (See British dei.ositions of John Saunders and Silas Fudge' wherein is stated that the United States' vessels ordy remained a tew days, and then after the Olh Januarv, no lish came into the harbour). All the United States' alfidavits show that the OJ United States' vessels were afraid to use their seines after this and that they left almost immediately, most of them comint^ home in ballast." •" A good deal of ingenuity and labour is displayed in the United States Argument (p. 133 and following) for the pur pose of 8ho\^■ing that with regard to claims in years gone by, presented by persons alleging themselves to bo injured by the act of a foreign nation, the amount of such claims were often greatly exaggerated, and particular reference is made to claims presented under the Claims Conventions of 1853 and 1871; 40 also to the Claims Convention between the United States and Mexico of 1 868, and to the claims before the arbitrators at Geneva. What argument can be drawn from the fact that exagger- ated claims were presented in other cases, unless it is^eon- tendeil that because there was exiiggcration in previous cases, a presumption arises that there is in this case ! At page 187 a tabulated statement is set i .rth purporting to show the amount ol each claim as presented at I'aris, as pre- sented at Victoria, and as now presented, and it is argued that 50 because the claims as now presented appear to be larger than those originally presented, therefore they must be exaggerated. It should, however, be observed that what ;ne called the claims as presented at X'ictorla, merely represents a lump sum stated 24 in the formal pleadings in each claim by the counsel for Great Britain before they had any precise knowledge of the evidence that would be adduced, and that the claim as now presented is the result of judicial investigation attended with all the guaran- tees iiocessary to test the truthfulness of the statements made. At this stage oi ilie inquiry, after it has boen shown that there is a total absence of evidence that any of the vessels were American vessels, it will be hav('ly necessary to refer to what is said in tlie United States' Argument (p. 138) as to the knowl- edge of the masters and mates tnerein mentioned "of actual American ownersliip of the vessels." luir will it be necessary to again review the evidence bearing on the hardships of the masters, mates and crews. 10 Exception is taken in the United States' Argument (p. 141) to claims for "legal and other expenses," (except what was paid out for the defeiu^' of the 8hi[is of British owners in the courts of Alaska, appearing in the liritish schedule of claims before the Paris tribunal) on the grounds, 1st, that there is no proof that any legal expenses were incurred or of the amount thereof, and "ind, that such expenses are never allowed in 20 cases of marine tort, or in cases of wrongful capture at sea. As to the proof of legal expenses having been incurred and of tlie amounts, it will be found in the evidence referring to each particular case, and to the testimony of Mr. Belyea, II., pp. lf)20, 1. tiO, 1738, 1. 5. See. also. R., p. 100, 1. -38 ; p 870, 1. 56; p. 871, 1. 9; p. 917,1. lo; ]>. 1100,1. ■-8; p. 1113,1. 43. Amongst other cases where legal expenses of this nature were allowed, tlie case of "Tlie Apollon," (W^heaton's Rep., vol. 9, p. 379) may be cited, where Mr. .lustice Story, in ren- dering the judgment, said : — 80 "The ifth item, allowing uOO dollars as counsel fees, is, in our ()(iinii)n, unexceptionable. It is the common course of the Admiralty, to allow expenses of this nature, either in the shape of dan:agcs or as part of the costs. The practice is very fami'iar m the prize side of the court ; it is not less the law of the court in instan(;c causes, it resting in sound discretion to allo>.'. or refuse the claim." With respect lo what is said at p. 141, under the caption of "The value of seal skiimsj," the counsel for (Jrcat Britain are unable to agree witii th<; statement of tticts therein made, or 40 with tlu^ conclusion drawn therefrom. The same thiinr may be said of the argumetit under the caption of " Interest." (p. I4;i) with this addition, and the authorities referred to do not bear out the contention of the United States' couhboI. 25 Reference to the protocol of the Pans tiibunal will in no way meet the contention quoted by the United States counsel (p. 150) from the British i.rgumont, in connection with the bayward Costs case, nor will it support the contention that that claim wa.. never received by, nor never was before the Fans tribunal. On the contrary, from the protocol it appears that the United States' counsel attempted to have the claim rejected on the technical pomt only that it was presented at too late a date; and this, they never even pressed to a ruling. 10 An argument is sought to he drawn ({,. 149) from the fact that m the claim as originally presented in the case of the " W I . Say ward," there appearing certain charges for legal expenses, the reference in the schedule ot the convention to the costs in the " Sayward " case was intended to cover such char-'-es To this it will suffice to say that similar charges were made in several of the other cases; hence, how came the costs in one case only to be made an additional claim? Moreover the legal expenses incurred by the owner of the " W P SaywLrd" being already included in the schedule, pp. 1 to 60, as is ad- 20 mitted by the counsel for the United States, why should it be made the subject of an additional claim ? As to the authorities referred to under the heading of the costs of the " Sayward " case, they will be dealt with at the oral argument. Referring to what is said under the caption " The additional claims" (pp. 153-158), Great Britain rests for the present on what has been already said in the original argument. Beyond what has been said in commenting upon or review- ing several cases cite.l in the United States' argument, it may 0" be added that a reference to a considerable number of other cases, also cited, will show that they are not in point or that they do not bear out the conclusions drawn therefrom by the United States' counsel. See specially the following authorities relied upon : — Carlisle v. United States (p. 47) ; argument of -ludge Hoar (pp. 63-4) ; Henry, the author of Admiralty Jurisdiction and Procedure (p. 74); the case of "The Experiment" (p 76) • HalJerk and Phillimore (p. 7tJ) ; the case of Tiie Sifters (p. y8) • Attorney Generals' opuiions (,,. 81); the case ot the Caro^ 40 line (p. 82) ; the case of the Mary Lowell (p. 85) ; the Ken. worthy's case (p. 89), and Smith v. Condry and other cises (p. 109). \ I Reference i • the atbitration proceedings in the case of the " t!osta Rica i vket," from the report thereof presented to Her Majesty's 1 rliamont in May, 1897, will be found interest- ing as having a b. iring up)n several of (lie questions under li s — 4 1 ■•' 26 consideration in this inquiry. Tlio decision in that case was given by M. df Martens, the eminent Jurist and u well known authority upon questions of international law. A summary of the facts and the text of ^r. dc Martens's decision are printed iis appendix 3, hereto. It is not deemed necessary to quote the evidence showing that John A. T>echtel has, for the last 18 or 20 years, been a resident at Victoria. The quotation I'roni the record in the United States' argument (p.p. 170-172) cstablishos this liict beyond question. 10 As to Daniel .McLean, he became n naturalized British sub- ject on the lOth October, 18,s6, K. I!t47, line 40). That fact of itself is sutHcient to make the claim good. It may, however, be added that not only is there an absence of any evidence of his domicile being in the United States at the time of the seizure ; but on the contrary, ho was then in charge of the seized vessel as master thereof; she being a British registered vessel, sailing frt)m the {)ort of Victoria, to which port she returned. Also, on the 20th October, 188G, and lOth Nover., ber, 1887, he made alKdavits that he was born at Sydney, 20 Cape Breton, in the province of Nova Scotia, and that he was a resident of Victoria, British Columbia, (K. pp. 1965-7.) Alexander McLean was also a native of Cape Breton, and a resident of Victoria from 1884 to 1889. E. 431, line 63. The fact that Alexander Frank was domiciled at Victoria, where he was carrying on his business, appears from his evi- dence (R. 1993, line 50) and from the affidavits printed on page 210 of the Exhibits. The counsel for the United States under the heading of " Uncertain character of seal hunting,' argue that there are so 30 many contingencies and dilticulties connected with seal hunt- ing as to make impossible any method of computing an esti- mated catch which will be just, and in support of this they refer to certain portions of the evidence. Other portions of the evidence may easily be quoted to show that the difficulties in seal hunting are not any greater than in other fishing industries. To take for instance the principal witness for the United States, Alex. McLean, possessed of such universal experience as to be invoked by the United States' counsel as the best 40 authority on every question of fact in this inquiry : Q. " Now, when you were out mackerel fishing, sometimes the vessel gets some and sometimes she does not ? A. " Yes, sir. Q. " A nd if during your si-asou's mackerel fishing, some one said to you you must not go mackerel fishing, don't you thiidc y ju would run a chance of making a loss? 27 A. " I ciiiinot state that. Q. " You would say tliaiik you, I suppogc? You would not mind that at all, would you? A. "I do not know what I mis,'ht say at the timo. Q. " You think it would he no loss hecausc it is a chance that you mi<;ht not catch tnackorel, is that your idea? A. " It is a good deal of chance work. Q. " Mackerel fishing is all chance work ? A. " A great deal. 10 Q. " And there are thousands, and I might also say millions of dollars invested in the macke '>1 fishinc:, is there not'' A. "Yes. Q. "And it is all invested in chance work? A. "A great deal so, a good many vessels go out and do not make a catch. Q. " Is cod fishing just ahout the same ? A. " Of course they have to take chances, some of them, of course, make money, and some of them do not. Q. " Is halibut fishing the same ? 20 A. "I suppose so. Q. " All chance ? A. "Yes, very nuich like seal fishing. Q. " And just about to the same extent as seal fishine? A. " Yes, sir. * Q. " They all have chances and they catch some on certain days, do they not, they have all got some little elements of chance to catch seals and fish. A. "Yes, sometimes they catch them and sometimes thev don't. •' 30 Q. " It is just the same with seals as it is with mackerel is it not ? A. " A good deal that way. Q. " And there is no more chance about seals than there is about mackerel? A. "Taking the average it is about the same, I suppose, a man cannot say, when he goes out for sealing, or mackerel fishing that he is going to make a catch, he cannot rely udou that. "^ ^ Q. " He cannot be certain ? 40 A, " No, sir. Q. " And it is the same way with seal hunting, you say? A. " Yes, sir, I believe so.'" (R. p. 420.) The alleged contingencies in seal hunting are summarized in the United States Argument (p. 208) as follows : — "The smallness of the vessels employed ; the extraordinary perils of a voyage to and cruise in Behring Sea ; the experience andskill of the master, hunters and crew ; the unreliability of Indian hunters through their ignorance and superstition ; the 50 frequent inclemency of the weather; the prevaleney of fogs and rain ; the condition of the animals when hunted, and the uncertainty of finding seals." Even if this statement were correct, which is by no means admitted, it is submitted that nearly every sea fishery is carried on under similar difHculties. Take, for example, the cod fish- eries as they are prosecuted on the banks in the Atlantic ; the persons engaged in them have to contend with the most severe weather; the conditions as to storms and fogs are at least as disadvantageous as those in Behring Sea ; they have also to use 28 small bouts in rough luid foggy woathor; they have to emjiloy tiBhermoii more or loss expert. Public records will show that the casualties in those tisherios arc much greater than in seal hunting. Again, in the mackerel fishery, the same difficulties exist to a greater or lessor extent. The same may be auid ot the hair seal iishery and of the lobster iishery, which are i>rosecutod to a great extent along the coast of the \orth Atlantic ; instances might be multiplied. The argument of the United States implies that, with re- 10 gard to any one of these fisheries, should the person who pro- secutes them be intentionally and wilfully prevented from car- rying on tlie same, the element of uncertainty is such as to debar him from recovering any damages except the mere value of the property seized or interfered with. Whatever may be the opinions of witnesses as to the exis- tence of elements of uncertainty, the result of years of experi- ence has shown that peo[)le properly equipped for seal hunting as in other fisheries arc successful when not molested or inter- fered with. 20 The argument submitted by the counsel for the United States on the ([Uestions of the " sealing grounds in Bohring Sea" and "duration of the sealing season in Bchring Sea", having already been fully dealt with by the counsel for Great Britain in their original argument, it is not deemed necessary at this stage to make any further reply. The United States' Argument on " Kstimated Cratch " (p. p. 247-257) is open to various remarks and comments which will be more properly made at the oral argument. Great Britain rests at present on the original argument 30 relating to value of seal skins as well as to the value of vessels, and to the personal claims of masters and mates. It should, however, be noticed that the attack made on the credibility of the witness Marketich is altogether unjustified by the record. Tho same may be said of the strictures made by the United States' Counsel on several other witnesses. With regard to that portion of the argument of the United States which deals with each claim (pp. 337 to 496) it appears to the counsel for Great Britain that a general outline of the contentions of both parties being now before this High Com- 40 mission, it will for the present be unnecessary to go into any detailed reply, except in certain jiarticular instances which will now be dealt with. S9 "CAROLENA."— CASE I. Touching tho contention of tho United Statos' Counsel that Andrew J. Bechtil, a nativo-born citizen of tho United StateH, was half-owner of tho vessel ; tho ovidenco shows conclusively that ho was before, at the time of and since the seizure domi- ciled in Victoria; therefore, the question of his interest in any ship becomes imiimterial. It is further contended, however, that in point of fact the evidence clearly establisheH that Bechtel's intere^it in tho "Ciirolena" and in the "rathfinder" 10 was sinii)ly that of mortgagee. "BLACK DIAMOND" AND "LILY." Claims Nos. 15 and 16. It is contended by tho counsel for the United States that these two vessels woro the property of Alexander Frank, an American citizen, and that Morris Moss, thi^ registered owner, had no real interest therein. Tho evidence on this point clearly establishes the contrary to be the fact. The vessels were seized in the year 1889, and tho evidence shows that they became the property of Morris Moss on the 10th Novem- 20 ber, 1888. We quote from R., p. 1993, lino 16 :— Q. " You are Alexander Frank referred to in the evidence as having been tho partner of Jacob Gutman ? A. " I do not know what evidence you refer to. I have been a partner of Jacob Gutman. Q. " In Victoria ? A. " At Victoria. Q. " You were a partner with Jacob Gutman before his death and up to that time ? A. "Yes, sir. 30 Q. " You are aware that the " Black Diamond " and the "Lily" were sold to Morris Moss on the lOth November, 1888? A. " I do not know the date, but I know that they were sold. Q. " Approximately that ? A. " Somewhere about that time. Q. " You know of their having been sold to Morris Moss ? A. "Yes, sir." * * * ^ * 40 Q. " Did he hold them for you ? A. "He did not. Q. " Had you anything to do with either of these two schooners after the sale to Morris Moss ? A. " Nothing whatever. Q. "In November, 1888, were you a resident of Victoria? A. " I believe I was. I am not quite positive about the time. I went to San Francisco either in the latter part of 1888 or the early part of 1889, and I stayed there for several months. 50 Q- " You had a business here in Victoria? A. " I was liquidating my business in Victoria." \ ^ J^^ c^:^^. IMAGE EVALUATION TEST TARGET (MT-3) 1.0 ^^ tii *tt ^ ■2.2 I.I u ■ 2.0 ly^ Mi U i L6 /a ^-V'^ ? [C FhotogFaphii Sciences Corporation ¥^ %^ i\ <\ ^ 23 wis; main strut yraSTM.N.Y. MSM (716) •72-4503 VV' I i I! i 80 Again at R., p. 2000, line 66, the following appears : — Q. " When you were asked by Mr. Warren as to whetlier you bought all the estate of Jacob Gutman, you oommeitced to make an explanation, what was it ? A. " Yes, Mr. Warren would not let me explain. When I assumed all the liabilities I had to assume all the assets of the firm to save myself as much as possible. Arrangements had I'cen made considerably prior to that date for the sale of these Schooners to Morris Moss — some time prior to that. These negotiations had been taking place before that." 10 A persual of the evidence from R. p. 1998 to p. 2001, will prove that Frank, with the object of paying off the liabilities of the firm of Gutman and Frank and of winding up the business of that firm, and also of protecting hii;.self against their liabilities, made arrangements for the disposal of the assets not only of the firm but also the private assets of Gut- man, and that the two vessels in question were thuti disposed of to Morris Moss. There is no evidence that Frank, after November, 1888, had anything whatever to do with either of the vessels in question. The bill of sale of the " Black 20 Diamond " to Moss appears from the registry, Appendix " B" (Exhibits) p. 379, and that for the " Lily " appears at i». 198. With regard to the table supposed to have been prepared by Mr. Milne, and referred to by the United States' counsel (p. 436) ; this was Rhown to be an entire mistake, and not to have formed any part of a report made by Mr. Milne. See R. pp. 1909 to 1918. MV;' , ■!,.; ?■■■} 1 THE "MINNIE." Claim No. 17, At page 441 the following appears : — 30 "The British Government sent commissioners to Victoria to pay the sealers for the losses incurred by reason of being deprived of hunting in the sea in the year 1891, and this witness (Jacobson) received from the Government of Great Britain the sum of |8,000 for damages suffered by two schooners. This quotation is evidently cited with the object of making it appear that $8,000 was considered by the British Govern- ment as a sullicient indemnification for the loss sustained for two schooners for not being allowed to fish in Behring Sea. The facts with regard to the compensation paid by Great 40 Britain in 1891 are that the modus invmdi of that year was promulgated at so late a date that the sealers had gone to sea before its existence was known ; the British Government, there- fore, thought proper to compenseiiate those sealers, not for the loss of catch in Behring Sea (which the modus rendered ille- gal) but for the actual out of pocket losucs incurred in fitting out for a business which was legal at tho time they prepared for their voyages, and it is, therefore, quite apparent that the amount of damage then awarded in respect of the "Miiuiie" can form no factor in measuring the damage to be assessed 60 hero. 81 THE " PATHFINDER." Claim No. 21. The position is taken by the United States' counsel (p. 4G5) that the vessel " having been forced into Noah Bay in distress had the right granted her by the law of nations to depart without interference, but in order that the claimants might be in a position to advance the claim of privilege, it was the duty of tho officers of the " Pathfinder" to demand the privilege of the commander of the cutter " Corwin " and to make known 10 to him that the vessel had entered the waters of the United States in distress ; that this privilege was not claimed and no such information was given to the commanding officer of the " Corwin." The atiswer to this is that it must have beeti known to the officer of the cutter that the vessol was there in distress, and no question was raised on this point at the trial. The fact that the vessel was seized for a specific cause, as stated by the commanding officer of the " Corwin " in his telegram to the Secretary of the Treasury at Washington, namely, that the 2Q " Pathfinder " had escaped from the steamer "Rush" after aei/ure in Behring Oca the previous year, is quite sufficient to exclude from consideration any other possible cause of seizure, .md to o away with any imaginary neglect of the master in not telling the officer of tho " Corwin " that he was in Noah Bay in distress. FREDERICK PETERS, F. L. BfilQUE, ERNEST V. BODWELL, CHARLES HIBBERT TUPPER. APPENDIX No I. JUDGMENT IN THE "LANINFA" CASE. UNITED STATES CIKCUIT OOUItT OF APPEALS, FOR TUB NINTH CIRCUIT. No. 24. The Schooner " LaNinfa," Thomas W II. Whitelaw, Claimuiit and Appellant. V8. I THE UNITED STATES OP AMERICA. APJ»EAL FROM THE DISTRICT COURT OF THE 10 UNITED STATES FOR THE DISTRICT OF ALASKA. Page and Foils for the Appellant ; Chas. A.Carter lor Appel- lees. Before McKenna and Gilbert, Circuit Judges, and Ilawley, District Judge. Hawley, District Judge : This is an appeal in admiralty from a decree of the District Court for the district of Alaska", forfeiting the schooner "La- Ninfa," upon the ground that she had been unlawfully engaged in killing seal in the waters of Alaska territory. The libel 20 charges that the vessel and her crew " were engaged in kill- ing fur seals, within the limits of Alaska territory, and in the waters thereof, in violation of section 1956 of the Revised Sta- tutes of the United States, and of other Acts of Congress, and of the proclamation issued by the President thereunder." The District Court found that " On the 6th day of July, 1891, and theretofore, the master and crew of defendant vessel were engaged in killing, and did kill, fur seal in that portion of Behring Sea coded by Russia to the United States by treaty of 1867, and within the waters of Alaska, in violation of sec- 30 tion 1956 of the Revised Statutes of the United States, and of the other Acts of Congress and the proclamation of the Presi- dent of the United States thereunder," and that the vessel was an American vessel. The court thereupon decreed a forfei- ture of the vessel, and of the skins on board of her. It appears from the facts shown by the record that the schooner was fitted out at San Francisco, California, " on a whaling, walrusing, hunting and fishing voyage to the North Pacific and Arctic oceans; " that fur sealing was among the objects contemplated by the voyage ; that she sailed from San 40 Francisco, April Ist, 1801 ; that on the 3rd day of July she passed into Behring Sea ; that on the 6th day of July she put out her boats for the first time in that sea, and brought in fourteen skins ; that on the next day the United States ship " Thetis " notified the captain of the schooner " that the sea BS— 5 1:;^ was close*' from scaling." Knsign Dodd of the "Thetis" boiii'dcd t le schooner on July 7th, about thirty miles ott' St. Paul'' Island, under orders which required his cutt'-r " to board all vcHst-ls in tiie lichring Sea, and, if they wore engaged in scaling, to givi- thcmacojiy of the President's jiroclamation and a letter of warning to leave at once." The captain of the schooner informed the otlicer that he had nineteen skins on board, some of which he had killed in Uehring Sea. The officer testified : *' As near as I can remember, I asked him if he had killc»8). Artiido I providoH tluit : "The questions wliich bave arisen between the (Jovcrnmunt of the United States and tlie (iovernnienf of Her Itritunnic Majesty, concerning the jurisdiotioiiid rights of the I'nitod States in the waters of Hebring Sea, and concerning aho the preservation of the fur seal in, or hal>itually resorting to the 10 said sea, and the rights of the eiti/ens and subjects of eitlier country, as regards tiie taking of fur seal in, or haie submitted to a tril>unal of arliitration." The live points submitted to the arbitrators are set tbrth in Article Vf., and ondtling the second, arc as follows : — " 1. What exclusive jurisdiction in tlie sea now known as the Ik'bring Sea, and what exclusive rights in the seal fisheries therein, did Russia assert and exercise ])riorand up to the time of the cession of Alaska to the United States? * * * # 20 " 3. Was the body of water now known as the Hehring Sea included in the phrase " Pacific Ocean " as used in the treaty of 1825 between (Jrcat Hritain and Ku.xsia ; and what rights, if any, in the Hehring Sea were held and exclusively exercised by Russia after said trciity ? " 4. Did not all the rights of Russia as to Jurisdiction, and as to the seal fisheries in Rt'bring Sea east of the water bouinl- ary in the treaty between the United States and Russia of the 80th March, 1867, pass unimpaired to the United States under that treaty ? 30 "6. Has the United States any right and, if so, what right of protection or jiropiTty in the fur seals frequenting the islands of the United States in Behring Sea, when such seals are found outside the ordinar}- three-mile limit? " The decision of the arbitrators upon these points was as follows : — "1 * * * Hy the Ukase of 1821, Russia claimed juris- diction in the sea now known as the IJebringSea to the extent of 100 Italian miles from the coasts and islands belonging to her; but in the course of the negotiations which lead to the 40 conclusion of the treaties of 1824 with the United States, and of 1825 with (ireat Hritain, Russia admitted that lier jurisdic- tion in the said sea should be restricted to the reach of camion shot from the shore ; and it appears that from that time up to the time of the cession of Alaska to the United State" lluiisia never asserted, in fact, or exercised any exclusive jurisdiction in Behring's Sea, or any exclusive rights in the seal vsheries therein, beyond the ordinary limit or territorial waters. * * ♦'2. * * * * * * * * * "8. As to the third of the said five points, as to so iiuch 50 thereof as re(|uires us to decide whether the body of water iiow known as Behring Sea was included in the phrase " I'acific Ocean," as used in the treaty of 1825, between Great Britain and Russia, we, the said arbitrators, do unanimously tb'cide and determine that the body of water now known as the Behring Sea was included in the phrase " Pacific Ocean," as used in the said treaty. And as to so much of said third point as re({uires us to decide what rights, if any, in the Behring Sea were lield and exclusively exercised by Russia after the said treaty of 1825, we * * * a majority ut said arbitrators do decide tiO and determine that no exclusive lights of jurisdiction in Behring Sea, and no exclusive rights as to the seal fisheries therein, were held or exercised by Russia outside of the ordin- ary territorial waters, utter the treaty of 1825. As to the tburtli ot'Haid iivo pointu, w», tho nai*! nrhitriitorn, do iiimiii- nioiinly tlucido iiiul tlctoriniiio tliiit all tlu> riglitM ot'liimrtiu hh to jnriHtlictidii luul iim to tlio hohI fiHliorioH in tlio Iteliring S«'a«*uHt ot'tlio wutor iMMinilurv, in tin- troutv lit'twccn tlui Uiiitoil Stut«'« iiixi Itiirtrtiu of 30th Marcli, 18tt7, ditl \nw* iiiiiinpaircd to tlio Uiiit«f the I'niteil States in the waters of Mehring Sea ; such iloniinion therein as was 80 "ceded hy Russia to the United States hy treaty of 1867." This question has hcen sottloil hy the award of the arhitra'ors, and this settlement must he accepted " as final." It follows therefrom that the wttrds "in the waters thereof" as used in section 1956, and the words "dominion of the Unitetl States in the waters t)f Behring Sea," in the amontlmeii' tliereto, must he construcil to mean the waters within three miles from the shores of Alaska. On coming to this conclusion this court does not tlccitlo the question atlversely to the political dejiart- ment of the (loverument. It is untlouhtetlly true, as has heen '» tlecitletl hy the Supreme Court, that in pentling contrt)vorsieH dt)uhtful qucstittns which are undecitletl must he met hy the political department t)f thi^ (loverment. "They arc hoyond the sphere of judicial cognizance," and " if a wrong has heen done, the iM)wer of reilress is with Congress, not with the judi- ciary." (The Cherokee Tohacco, 11 Wall, 116-121). Mut, in the present case, there is no pending question left undeter- mined for the political departmojit to decitle. It luis heen set- tled. The award is to he construed as a treaty which hixs hecome final. A treaty when accepted antl agreetl to, hoitomes 50 the supreme law of the land. It binds courts as nmch as an Act t>f Congress. In Head Money Cases, 112 U.S., 580-598, the court saiil : "A treaty is primarily a contract between in- tlependent nations. It tlepenils for the enforcement of its pro- visions on the interest and honour of the Governments which are parties to it. * * * A treaty, then, is the law of the land, as an Act of Congress is whenever its provisions prescribe a rule hy which the rights of the private citizen or subject may he determinetl. Antl when such rights are of a nature to be enforced in a ctmrt of justice, that court resorts to the 60 treatv for a rule t)f the decision ft)r the case before it as it would to a statute." Chew Heung vs. U.S., 112 U.S., 536- 54f-565. United States rs. Rauscher, 119 U.S., 407-119. '{'he duty of courts is to construe antl give effect to the latest expression of the sovereign will, hence it follows that what- I; :'f. ovur limy liiivo been tlie oontoiitioii of tho (iovornmi'iit at the time in re Coopor was deciiU'd, it lias rcfi'dcd tluTof'roin rtiiiee tho award wan reiidiTod, Iiy an agreenicnl to ai'c-i(|it tho name "08 a full, coniiik'to and final settloniont of ail (|iiOHti(>nn referred to l)y tho arbitratorn," and from the fiirtlier fact timt tlie Ouvornniont mnc-u thu rendition oi tho award Imtt paH^od " an Act to give etloct to tlie awartl rondorod liy the Trihnnal of Arbitration." It is 8Uf;gC8tcd in tlio brief of tiio learned counsel for the United States that "It may be tho present policy of tlio 10 Government to nuikc record ovidonce as to the ciinsistency of its contontion from tho bepnning upon tho important question of its rights to protect its property and seaHishoriort * * * It may bo that it is the policy of thistSovornment to punish its own citizens and vessels and not the citizens and vessels of Kngland. All those and other considerations make the (lues- tion one essentially political, so that courts would at least hosi- tato to enter any lield beyond that of construing tho statutes under which tliis case is presented." There is nothing in tho award wliich denies Jtirisdiction t>f tho liiite*! States over her liO own merchant vessels on the high seas at any place not witliin the jurisdiction of any other sovereignty. These (piostions have no bearing as to the interpretation to bo given to the statutes under review. Those Btatutc.^, whatever their inter- pretation may l>e, nnist be applied to citizens and subjects of all nations, and were not intended to apply oidy to citizens, subjects and vessels of America. My tho terms of arbitra- tion " tho rights of the citizens and subjects of either country " were involved in the decision of tho arbitrator, and it necessarily folK)ws that tlie citizens an|)i( till' piulits anil iiittiiii|i tioii of \oyiigt' 1« 7,<>"4.IHHI mo.lNHI Stniik oiil M f*iich, Imt for wall's .... 20 |nr c-iit on tlie vnliif of vhiwIh 9 lll.iNiO Struck out. r.W,IHH» 4(Mi,iiim 'I'otiil li,s<,i:i,iHM) 40 Koiunl slllll. ^I'J.INNI.INHI ■ik '■ i I : ,1 " Interest from the 1st January, 1864, to the 15th Sep- tember, 1872. 1. .\t Ti [KT ri'iit iliiriii),' liclil vi'arx anil iiVlit anil oiii- half liiolitll*. h . .■"K'llHI.IHtll S-J.HtHI.IMHt H • *"iO,0(MI 4a.\0i.'i,7(;i».(i7ll,INK) I'Miiliinllv nitf yi'nr'« iiiliii -t iiinri IN.'.KIII.IKNI •'t. Al 7 |Mi,;j(l.(MKI H.^ 7ll,IMNI .V.I.'i.lHHI 7,:iiri,)iiMi Km iitiiilly iiiH' yi'iir'» iiiiiri"'! iiiiiii'. Ilonml >iiiii !tu!fH in Mr. StaiMiiidli'H iiapcr require hoihc material corrpftioim, an to wlii.li, hr ho(ui a» tlu-y are iiointod out, thore can l><> IK) doubt. "Tlio total claim h.v the United States of !*l 1,437,000 will bo found, on an inspection of the Uii.l States tables, to in- clude the followiiiff amounts : ;{0 "('|.) All the double claiins, witlioiii ixc^eption, nnlwitb- stundinjr tbo dear oxjiressiop of opinio.i on the part of tlio tri- bunal that they were to be stnuk . it. Tlioso douMo ciaiiiiB Hinount to $1,082,243. "(''■) The gross freiffhts of the merchiint vessels, amount- ing to $1,007,1.53. as to which the tribuhiil has decided that at the utmost only h'.ilf, that is to .-ay, $503,670, Khould bo allowed. "(c.) The now claim of !«I,4')0,000, adwmced for the first time on the 19th of August last, a» to which claim Mr. Slacmp- 40 jli declared he would exclude it from consideration. It la important to observe that thin new claim comprises over and above the entirely unsupported claims for shares of vessels, and for additional personal ellcets, the claims for wages extending very long and varying periods. T/,e Irihumtl h,is ,lcri,l,;l t/mt itrutioii of Mr. Martens, ap- pointfil as arbitrator In- tlir Czar of Russia, and tlic follow- ing is liis decision in full : " In virtiU' of the hiirli duties of arliitrator confcm-d by su- premo order of my Aui-iist Master, His Majesty tlie Emperor Nicliolas II of All the Jiussias, F. do Martens, Privy Council- lor, IVrmaneiit M(nd)er of tlie Council of tbe Russian Ministry of Foreign Afliiirs, and Kmoritus Professor, in accordance with tbe Conyention of tlio ItJtb May, 18'.'5, concluded between the 10 Government of Her Majesty tbe Quein of Great Mritain and Ireland. Empress of India, and tbe (Jovirnment of Her Majes- ty the Queen of tbe Xotlu'rlands, on the subject of tbe diffe- rence wbicb bas arisen betwein the two Governments in res- pect of tbe detention of Mr. Carpenter, captain of tbe Austra- lian winder tbe " (^osta Rica I'acket." "Having duly examined and nuitnrely weiglied the docu- ments wbicb have been jinxluced on eitber side with regard to tbe indemnity claimeil by tbe (Jovenimont of Her Uritannio Majesty from tbe Government ot tbe Xetberlands on behalf of 20 Captain Carpenter, and tbe ollicers, crew, and owners of the vessel 'Costa Ricu Packet.' "Animated by a sincere desire to jusiity the great honour which lias been conferred on me by an im'partialiind scrupul- ous decision, and taking into account tbe principles of Inter- mitional law applicable to tbe dispute which bas arisen be- tween the two bigb conlendiiig (governments in order to fix the amount of the indemnity due by tbe Government of the Netberlands on acount of tlu; damages sufiored personally by Cajptain Carpenter, of tbe 'Costa Ric'a Packet,' as well as those 30 that nuiy be provi'd to bave lie.u sulKivd by tbe officers, crew, and owners of tbe aforesaid vessel, as a necessary consequence of tbe precautionary detention of Mr. Carpenter. "I pronounce tbe following Award of Arbitration :— " ConsKlering that tbe riglit of sovereignty of tbe State over territorml waters is determined by the range ot cannon, mea- sureil from the low-water mark ; " That on the bigb seas e\ en merchant vessels constitute detached portions of tbe territory of tbe State whose Hag they bear, an