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bona fide belief that an infraction of the Behring Sea Award Act, 1894, had been committed; third, because the release of the Favourite by the British naval authorities without a regular prosecution before a court rendered it impossible to determine in the only competent way whether the seizure was illegal; fourth, because, even supposing the seizure was made without probable cause, the liability to pay damages would rest upon His Britannic Majesty's Government; fifth, because the detention of the vessel from and after August 27, 1894, the date of its delivery to the commanding officer of the British cruiser Pheasant at Unalaska, was due to the action of the British authorities; and sixth, because there is no basis in law or in fact for the measure of damages claimed.
7. As to the legality of the seizure and liability of the United States:
On the facts in this case, and for the reasons stated in the award of this Tribunal in the case of the Wanderer, Claim No. 13, delivered December 9, 1921, this Tribunal holds:
(1) That the seizure of the British ship Favourite by United States officers under section 10 of the Act of Congress approved April 6, 1894, was an improper exercise of the authority conferred upon them by the British Government under the Behring Sea Award Act of 1894, and the order-incouncil of April 30, 1894;
(2) That the good faith of the United States naval officers is not questioned, their error in judgment being caused by the provisions of the aforesaid section 10, for which section and the error of judgment committed by its agents thereunder, the United States Government is liable;
(3) That inasmuch as the offence of the Favourite did not make her liable to forfeiture, the British Government were under no international or legal duty to proceed against the ship through their Admiralty Courts, and not to release her by a merely administrative decision; and
(4) That the British authorities, rather than the United States authorities were responsible for the detention of the ship after she was delivered to them on August 27th.
The United States Government, therefore, is liable only for the three days of her detention, namely from August 24th to August 27th, during which she was under the control of officers of the United States, and the three additional days which should be allowed for the vessel to return to the sealing grounds if she had been released at Unalaska on August 27th.
II. As to the amount of damages:
The damages claimed on behalf of the claimant, amounting to $19,443.28, as set forth in the British Memorial, are based upon "a reasonable estimate of the sums which the owners would have received as the proceeds of the voyage, if it had been completed, together with interest thereon," or, in the alternative, the said amount is claimed "by reason of the loss of time, wages, provisions and outfit for the remainder of the season after the 24th of August, 1894."
It is shown in the British Memorial that during the period between August 1st and August 24th, the Favourite had taken 1247 seal skins, the net value of which, as shown by their sale in London was at the rate of $8.62 per skin. This would make the average daily catch 52 skins, equivalent to $448.24 in value. It does not necessarily follow that the Favourite would have continued to take seal skins at this daily average during the remainder of her voyage, but the Tribunal is of the opinion that in view of her hunting equipment consisting of nineteen canoes and forty-five Indian hunters and a crew of eight white men, an estimated allowance of 52 skins per day as an average is not excessive. The Tribunal, therefore, considers that the prospective profits for these six days should be estimated at $448 per day, making $2,688 in all, and fixes this amount as damages for her loss of profits with $500 additional for the trouble occasioned by her illegal detention.
As to interest:
The British government in their oral argument admit that the 7 per cent interest claimed in their memorial must be reduced to 4 per cent in conformity with the provisions of the Terms of Submission.
It appears from a letter addressed by the Marquis of Salisbury to the British Ambassador in Washington on August 16, 1895, and handed by him to the Secretary of State of the United States on September 6, 1895, that this was the first presentation of a claim for compensation in this case. Therefore, in accordance with the Terms of Submission, section IV, the Tribunal is of the opinion that interest should be allowed at 4 per cent from September 6, 1895, to April 26, 1912, on $2,688 damages allowed for loss of profits.
FOR THESE REASONS
This Tribunal decides that the Government of the United States shall pay to the Government of His Britannic Majesty, on behalf of the claimants, the sum of Three thousand one hundred and eighty-eight dollars ($3,188) with interest on Two thousand six hundred and eighty-eight dollars ($2,688) thereof at four per cent (4%) from September 6, 1895, to April 26, 1912.
The President of the Tribunal,
In The Matter Of The Wanderer
Claim No. 13
Decision rendered December 9, 1921
This is a claim presented by His Britannic Majesty's Government for $17,507.36 and interest from November, 1894, for damages arising out of the seizure and detention of the British sealing schooner Wanderer, and her officers, men and cargo, by the United States Revenue Cutter Concord on June 10, 1894.
The Wanderer, a schooner of 25 tons burden was a British ship registered at the Port of Victoria, B. C.; her owner was Henry Paxton, a British subject and a master mariner. On the 5th of January, 1894, she was chartered for the sealing season of 1894 by the said Paxton to Simon Leiser, a naturalized British subject. Under the terms of the agreement, Leiser had to provision and equip the vessel, and Paxton was appointed as master and to be paid as such; the net profits of the venture were to be divided between them in a fixed proportion.
On January 13, 1894, the Wanderer left the Port of Victoria, B. C, and sailed on her sealing voyage in the North Pacific Ocean. She was manned by Paxton as master, one mate and fourteen hunters, including twelve Indians (all of them British subjects), and two Japanese, and appears to have been equipped, at the time of her seizure, with five canoes and one boat for sealing.
On June 9, 1894, at 8.30 A.m. when the vessel was in latitude 58° north and longitude 150° west, and heading west south-west, en route for Sand Point, she was hailed by the United States Revenue Cutter Yorktovm, and boarded by an officer who, acting under instructions hereinafter referred to, searched the schooner, placed her sealing implements under seal, and made an entry in the ship's log stating the number of seal skins found on board to be 400.
On the same day, about seven hours later, i. e., at about 4 P.m., the vessel being in latitude 58° 21' north and longitude 150° 22' west, heading north, wind astern, she was hailed by another United States Revenue Cutter, the Concord, and boarded and searched. During his search the officer discovered hidden on board and unsealed one 12-bore shot gun, 39 loaded shells and 3 boxes primers, one of which was already opened. The United States naval officer took possession of the gun and shells and made the following entry in the ship's log:
Lat. 58.21, N. Long. 150.22 W. June 9th, 1894.
I hereby certify that I have examined the packages of ammunition, spears, and guns referred to in the preceding page, and found all skins intact, counted the seals and found the number to be 400.
E. F. Leiper, Lieut. U.S.N., U.S.S. "Concord." Lat. 58.21 N., Long. 150.22 W., June 9th, 1894.
On further search of the vessel I found concealed on board 12-bore shotgun, 39 loaded shells and three boxes primers, one of which was opened already.
E. F. Leiper, Lieut. U.S.N., U.S.S. "Concord."
As the sea was rough, the commanding officer of the Concord at the request of the master of the Wanderer took her in tow to St. Paul, Kadiak Island. She arrived there towed by the Concord on June 10th, at 10 A.m. and the tow line being cast adrift, was about to make sail for a safe anchorage when the Concord without any warning ordered her to stand by and to anchor nearby. It appears also from the Concord's log that in the afternoon a committee of inspection went on board the Wanderer to ascertain whether she was seaworthy and that at the same time the master was informed that he was to be seized. At 4 P.m. the commanding officer of the Concord, Commander Goodrich, advised the master that his ship and the ship's papers had actually been seized.
The ordinary declaration of seizure was made and notice given that the seizure had been made for the following reasons:
subsequent to the warning and certificate aforesaid arms and ammunition suitable to the killing of fur seals were discovered concealed on board . . . and whereas the possession of such unsealed arms and ammunition was in contravention of the Behring Sea Award Act, 1894, Clause I, par. 2, and Clause III, par. 2, as well as of Section 10 in the President's Proclamation . . . (United States Answer, Exhibit 5.)
The master of the Wanderer protested against this declaration.
On June 16, Commander Goodrich sent a report to the Commander of the United States Naval Force in the Behring Sea (United States Answer, Exhibit 4) in which he stated:
My action is based on the last half of Sec. 10 of the Act of Congress April 6; the next to the last sentence in the "Regulations Governing Vessels, etc;" the Behring Sea Award Act, and Pars. 1 and 3 of your confidential instructions of May 13th.
To this report were annexed the statements of the officers and men of the Concord, who took part in the search, all of which referred merely to the discovery on board of a gun and ammunition hidden and unsealed. On July 1st, the Wanderer arrived at Dutch Harbor, Unalaska, where she remained under seizure until August 2d, when she was handed over to her Britannic Majesty's ship Pheasant. (United States Answer, Exhibits 12, 13.)
On August 6th the schooner was sent to Victoria, B. C, and after her arrival there, she was released by order of the British Naval Commander in Chief on the Pacific Station. (British Memorial, p. 10.) The evidence does not disclose how long the Wanderer was detained at Victoria by the British authorities before her release was ordered.
The Government of His Britannic Majesty contend that the seizure of the Wanderer was illegal; that the alleged reason for it was wholly insufficient, and that the Government of the United States is responsible for the act of its naval officers.
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 a bona fide belief that an infraction of the Behring Sea Award Act, 1894, had been committed; third, because the release of the Wanderer by the British naval authorities without a regular prosecution before a court rendered it impossible to determine in the only competent way whether the seizure was illegal; fourth, because even supposing the seizure was made without probable cause, the liability to pay damages would rest upon His Britannic Majesty's Government; fifth, because the detention of the vessel after July 1, 1894, the date when she arrived at Dutch Harbor, Unalaska, was due to the failure of the British naval authorities to send a vessel there to take charge of the schooner; and sixth, because there is no basis in law or in fact for the measure of damages.
7. As to the legality of the seizure and liability of the United States:
The fundamental principle of the international maritime law is that no nation can exercise a right of visitation and search over foreign vessels pursuing a lawful avocation on the high seas, except in time of war or by special agreement.
The Wanderer was on the high seas. There is no question here of war. It lies therefore on the United States to show that its naval authorities acted under special agreement. Any such agreement being an exception to the general principle, must be construed stricto jure.
At the time of the seizure, as the result of the Arbitral Award of Paris, August 15,1893, and the Regulations annexed thereto, there was in operation between the United States and Great Britain a conventional régime the object of which was the protection of the fur seals in the North Pacific Ocean.
By the Award, it was decided inter alia:
that concurrent regulations outside the jurisdictional limits of the respective governments are necessary and that they should extend over the water hereinafter mentioned.
By the Regulations above referred to, it was provided that the two Governments should forbid their citizens and subjects, first, to kill, capture, or pursue at any time and in any manner whatever, the fur seals within a zone of sixty miles around the Pribilof Islands; and second, to kill, capture and