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tia, April 15, 1905 (United States Memorial, Exhibit 19, enclosure 1), the owners entered into the following undertaking:
In consideration of the release of the American schooner TATTLER of Gloucester, Massachusetts, now under detention at the port of Liverpool, Nova Scotia (on payment of the fine of five hundred dollars, demanded by the Honourable Minister of Marine and Fisheries of Canada, or by the Collector of Customs at said port), we hereby guarantee His Majesty King Edward the Seventh, His Successors and assigns, represented in this behalf by the said Minister, and all whom it doth or may concern, against any and all claims made or to be made on account of or in respect to such detention or for deterioration or otherwise in respect to said vessel or her tackle or apparel, outfits, supplies or voyage, hereby waiving all such claims and right of libel or otherwise before any court or Tribunal in respect to said detention or to such or any of such claims or for loss or damage in the premises.
It has been observed by the United States Government that on the same day the owners notified the Canadian authorities that the payment of the said sum of $500.00 was made under protest.
But neither this protest nor the receipt given by the Canadian authorities for the $500.00 contains any reservation to, or protest against, the guarantee given against any and all claims made or to be made on account of or in respect to such detention.” It does not appear, therefore, that the waiver in the undertaking of any claim or right "before any court or tribunal” was subject to any condition available before this Tribunal.
It is proved by the documents that the consent of the British Government to the release of the vessel was given on two conditions: first, on payment of $500.00, and, second, on the owners undertaking to waive any right or claim before any court, and the protest against the payment does not extend and cannot in any way be held by implication to extend to this waiver.
This protest appears to have been a precautionary measure in case the Canadian authorities should have been disposed to reduce the sum. Any protest or reserve as to the waiver of the right to damages would have been plainly inconsistent with the undertaking itself and would have rendered it nugatory if it had been accepted by the other party.
On the other hand, it has been objected that the renunciation of and guarantee against any claims are not binding upon the Government of the United States, which presents the claim.
But in this case the only right the United States Government is supporting is that of its national, and consequently, in presenting this claim before this Tribunal, it can rely on no legal ground other than those which would have been open to its national.
For These Reasons: This Tribunal decides that the claim relating to the seizure and detention of the American schooner Tattler on and between April 10 and April 16, 1905, must be dismissed.
This is a claim for $2,100.00, with interest, for the seizure of the same American schooner Tattler by the Canadian authorities on December 15, 1905, in the port of North Sydney, Cape Breton, for an alleged violation of the Canadian Statute 55 and 56 Vict. (1892), chapter 3, entitled: "An Act respecting fishing vessels of the United States."
In October, 1905, the Tattler registered at and sailed from Gloucester, Massachusetts, to Newfoundland on a salt herring voyage, proceeded to North Sydney, Cape Breton, and entered that port to obtain a license from the Canadian authorities under the above-mentioned Canadian Act enabling it to ship additional men as members of the crew.
It is shown by the documents and it is not denied that the Master of the Tattler, after entering that port, went on shore, and applied to the Canadian authorities for the said license, that notwithstanding three separate requests the license was refused him on the ground that the schooner was on the American register and did not hold an American fishing license, and that on this refusal the men were shipped without a license.
It is established by a report of the Canadian authorities to the Minister of Marine and Fisheries of Canada dated at Ottawa, December 15, 1905 (British Answer, Annex 51), that up to that season United States vessels registered as trading vessels visited Newfoundland for the purpose of obtaining cargoes of frozen herring, and were afforded all the ordinary port privileges extended to trading vessels. Newfoundland, however, in that year, i.e., 1905, passed an Act preventing such vessels from procuring bait fishes, and herring, within the territorial jurisdiction of Newfoundland, and they were forced to catch their cargoes of fish for themselves, and so became fishing vessels. As they had not the necessary crews and could not, under the Newfoundland regulations, ship them in Newfoundland waters, it became necessary for them either to return home or procure the necessary crews in Canadian ports. In the early part of the season the Canadian local customs officials were not very clear as to the status of these vessels under the changed conditions. The Canadian Government, however, decided that the moment they shipped crews to catch fish they changed their character and became fishing vessels, and as such must procure a Canadian license under the Canadian Act. When the Government's decision was made known to the officials, this course was followed.
In the following month, i.e., November, 1905, information was received by the owners of the Tattler that the Canadian authorities at North Sydney had discovered their error in regard to the license requested by and refused to the schooner, and that they were ready to issue the license on receipt of the proper fee. The owners mailed the amount without delay to the Canadian authorities at North Sydney.
By that time the Tattler had returned to Gloucester and sailed again for Newfoundland, and on December 15th, owing to bad weather, she entered North Sydney for shelter. She was immediately seized on the charge of having, on her previous trip, shipped men without a license. Telegraphic correspondence took place between the owners and the Canadian authorities to ascertain the facts. But it was not until three days later, i.e., on December 18, 1905 (British Answer, Annex 53), that her release was obtained.
This Tribunal is of opinion that the British Government is responsible for that detention.
It is difficult to admit that a foreign ship may be seized for not having a certain document when the document has been refused to it by the very authorities who required that it should be obtained.
The British Government in their answer and argument contend that the captain of the schooner had never expressly informed the Canadian Collector of Customs that his vessel was a fishing vessel. But it is to be observed that this same ship, a few months before, sailing under exactly the same conditions and entering Canadian ports, had been treated as a fishing vessel, blacklisted and seized as one by the Canadian authorities.
That this fact could not have been and was not forgotten is shown by the aforesaid Canadian report of December 15, 1905 (British Answer, Annex 51).
In any case, it was admitted by the Canadian authorities (ibid.) that the officials were at that time insufficiently informed and uncertain as to the exact status of such vessels.
Such an error of judgment by the Canadian officials shall not result in prejudice to the foreign ship in question.
Under these circumstances the Tattler is entitled to an indemnity. As to the quantum :
The claim is for the alleged loss of 665 barrels of herring, valued at $2,100.00, which, it is contended, the vessel did not catch because of the three days' detention.
But no evidence is produced as to the certainty of this prospective catch. Nobody can say whether the vessel would have made such a catch, or whether it would have encountered some mishap of the sea.
Taking into consideration the trouble undergone by the owners, the period of the detention, and the tonnage, equipment and manning of the vessel, this Tribunal thinks that the sum of six hundred and thirty dollars ($630.00) is a just indemnity.
For These Reasons:
This Tribunal decides that the Government of His Britannic Majesty must pay to the Government of the United States the sum of six hundred
and thirty dollars ($630) for the seizure and detention of the American
For the Tribunal:
Decision rendered December 18, 1920 This is a claim for $104,709.03 and interest presented by the Government of His Britannic Majesty on behalf of the owners of the cargo of the steamer COQUITLAM. It arises out of the seizure of that steamer on the 22nd of June, 1892, by the United States Cutter CORWIN in the Behring Sea.
The following facts are admitted: The COQUITLAM was a British ship owned by the Union Steamship Company of British Columbia and registered at the port of Vancouver, B. C.; her gross registered tonnage was 256.33; her net tonnage 165.67.
In the spring of 1892 a number of British schooners left Victoria, B. C., for the purpose of hunting seals in the North Pacific Ocean. The owners of these vessels belonged to an association known as the Pacific Sealers Association, and at the time they sailed from Victoria it was understood that a ship would be sent out in the following June to convey supplies to the schooners and receive in return their catch of seal skins.
In pursuance of this understanding, the Coquitlam was chartered on June 4, 1892, for a period of thirty days and fitted out at the port of Victoria by the Pacific Sealers Association. She sailed from that port for the North Pacific Ocean on June 8.
It had been arranged that the schooners should rendezvous at Marmot Island, or Tonki Bay, in Afognak Island, or at Port Etches, in Hinchinbrook Island.
The Coquitlam arrived at Tonki Bay on June 18, 1892, and next day at the mouth of the bay received from eight sealing schooners 5,835 seal skins and transferred to them the supplies provided. She left Tonki Bay for the second rendezvous at Port Etches and arrived there on June 22. The same day, before any transfer had been made to or from the schooners, she was seized in the harbor by the United States Revenue Cutter Corwin and taken to Sitka, where she was handed over to the Collector of Customs.
No document or entry in the ship's log has been produced purporting to have been made at the time, and stating the circumstances of and reasons for the seizure.
On July 5, the United States District Attorney filed in the District Court of Alaska a libel of information against the Coquitlam, its appurte
nances and cargo, alleging that she had committed three separate offenses, the first under Sections 2867 and 2868 of the Revised Statutes of the United States by receiving or unloading merchandise and cargo in the waters and within four leagues of the coast of the United States; the second, under Section 3109 of the same Revised Statutes, by transferring merchandise within the said limits without having previously reported and received a permit; the third, under Sections 2807, 2808 and 2809, by having no manifest in writing of the cargo brought into an United States harbor.
By order of the District Court of the 17th of September, 1892, the vessel, cargo and appurtenances were released upon giving bonds for $87,660.95.
Upon the trial of the libel the Coquitlam, her cargo and appurtenances were condemned by a decree of the District Court, dated September 18, 1893. But on appeal, the United States Circuit Court of Appeals for the Ninth Circuit, on the 16th of November, 1896, reversed the decree of forfeiture made by the District Court and dismissed the libel.
This decision of the judicial authorities of the United States is binding upon the Government. It decides that what Sections 2867, 2868 of the Revised Statutes had in view were vessels bound to the United States and that there was no evidence that the Coquitlam was so bound; that Section 3109 contemplated vessels not merely arriving in the United States waters but intending to proceed further inland, either to unload or take on cargo, and that there was on the record no proof of any such intention; that the Sections 2807, 2808 and 2809 made liable to forfeiture only such merchandise as is consigned to the master, mate, officers or crew, and that it was not alleged in this case that any merchandise was so consigned.
The same decision goes on to say that there was no contention “that any injury has been done to the United States by the acts which are complained of in the libel, or that the United States has in any way been defrauded of revenue, or that there was any intention upon the part of the masters or owners of the vessels to evade the provisions of the revenue laws. The merchandise was not bound to the United States, nor was it consigned to any person, nor destined to be delivered at any place in the United States.'
1. As to the liability:
It appears that shortly after the seizure of the vessel the British Government brought the matter to the attention of the United States Government, but no action was taken during the pendency of the judicial proceedings, the Coquitlam in the meantime having been released on bond. Subsequently in a letter of the Secretary of State to the British Ambassador dated December 21, 1904, the United States Government stated that the Department of State “is disposed to recognize liability and to recom