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George A. Finch.
JUDICIAL DECISIONS INVOLVING QUESTIONS OF
AMERICAN AND BRITISH CLAIMS ARBITRATION TRIBUNAL1
[Arbitrators: Henri Fromageot, Sir Charles Fitzpatrick, Chandler
In The Matter Op The Favourite
Claim No. 12
Decision rendered December 9, 1921
This is a claim for $19,443.28 together with interest from November 30, 1894, presented by His Britannic Majesty's Government on behalf of Laughlin McLean, for damages arising out of the seizure of the British sealing schooner Favourite by the United States Revenue Cutter Mohican on August 24, 1894, and her subsequent detention.
The Favourite was a British schooner registered at the Port of Victoria, and her owner was Laughlin McLean, a British subject and master mariner. In 1894, R. P. Ritheta and Company, Limited Liability, a body incorporated under the laws of British Columbia, and managers of the said schooner, fitted the vessel out for a sealing voyage.
After procuring a special sealing license, the vessel, manned by Laughlin McLean as master, and a crew of eight men, sailed from Victoria on June 18, 1894. When the vessel sailed from Victoria, she had on board no firearms except one double-barrel shotgun, the barrels of which had been cut off to about eleven inches. The presence of this gun was noted on the ship's manifest. The vessel proceeded to Kyuquot on Vancouver Island, where a crew of forty-five Indian hunters was procured.
After the sealing implements on board had been sealed by Her Majesty's Customs Officers and entry made in her log book, the vessel set sail for Behring Sea on July 4,1894; entered that sea on August 1st; and after breaking the seals on the implements commenced sealing and continued sealing until August 24, 1894. On that date when in longitude 168.30, latitude 64.27, the vessel was boarded and searched by an officer of the United States Revenue Cutter Mohican, who made the following entry in the ship's log:
Boarded the 'Favourite.' Found log correctly kept. No violations of regulations, as per log; one shotgun unsealed.
1 Previous decisions of this Tribunal are printed in this Journal, Vol. 13, pp. 875, 890; Vol. 14, pp. 650-66; Vol. 15, pp. 292-304; Vol. 16, pp. 106-116.
The officer then left the Favourite, but returned shortly thereafter and directed the master to go on board the Mohican, bringing with him all his papers and the gun, with which direction the master complied. The gun was fired and found to shoot very accurately for a distance of fifty yards. Whereupon the master was informed that the vessel was under seizure, for the following reasons, which are stated in the declaration of seizure:
. . . for violation of article six (6) of the Award of the Tribunal of Arbitration and of that part of section ten (10) of the Act of Congress approved April 6, 1894, which reads:
'. . . or if any licensed vessel shall be found in the waters to which this act applies, having on board apparatus or implements for taking seals, but forbidden then and there to be used, it shall be presumed that the vessel in the one case and the apparatus or implements in the other was or were used in violation of this act until it is otherwise sufficiently proved.' (United States Answer, Exhibit 4.)
On August 30, 1894, the Commander of the United States Naval Forces in Behring Sea sent a report to the Secretary of the Navy, in which he stated—
It is more than likely that the shotgun for which the vessel was seized was intended to be used in projecting signal stars, as the barrels were cut off, reducing them to a length of about twelve inches, but it was found after trial, that it could be used to kill seals much beyond the ordinary range of spear throwing.
But whether this was the only intention, or whether there was another to use it for killing seals in case it was allowed for signal purposes, I am not prepared to say; but its possession is clearly in violation of the provisions contained in sec. 10 of the Act of Congress approved April 6, 1894. (United States Answer, Exhibit 7.)
To this report were annexed the reports of the officers of the Mohican with reference to the seizure of this vessel.
The Favourite was immediately sent in the custody of a prize crew from the Mohican to Unalaska, and on August 27th was delivered to the commanding officer of the British cruiser Pheasant at Unalaska, who ordered the Favourite to report to the Collector of Customs at Victoria, B.C.
Upon her arrival at Victoria, the Favourite was released by order of Rear Admiral Stevenson, the British Naval Commander in Chief on the Pacific Station.
The Government of His Britannic Majesty contend that the seizure of the Favourite was illegal and unjustifiable, as neither the Behring Sea Award, nor the regulation made therein or thereunder, nor any legislation or other legal or competent authority, justified or authorized the seizure of the vessel in the circumstances.
The United States Government, on the other hand, denies all liability; first, because its officers were acting on behalf of the British Government and not of the United States Government; second, because there was the