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from sealing by the United States authorities, was the period covered by the first two days in August, which followed the termination of the close season on the 31st of July, as fixed by the Award, and the three additional days which should be allowed for the vessel to reach the sealing grounds, if she had been released at Dutch Harbor on August 2nd.
The damages claimed by the claimants 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," and these sums include only the value of the estimated catch for the season if the schooner had not been seized, damages for detention of master and crew, the value of provisions and alleged injuries to guns. It does not appear that any damages were claimed for the detention of the ship during the period prior to the 1st of August, and it is clear that no pecuniary loss on account of any of the items mentioned was suffered by the detention of the ship, or the master and crew during that period, because it is evident from the surrounding circumstances that it was her purpose to occupy that period in proceeding to Behring Sea, and remaining in that vicinity until the open season began on the 1st of August. The value of the prospective catch for the whole season is estimated by the claimants at $9,080.86 on the basis of 950 skins at 39 shillings, 3 pence per skin.
It is shown by the documents that the average catch during the same season of other schooners similarly equipped was about 96 skins per boat or canoe, or 43 skins per man. The Wanderer had one boat and five canoes and fourteen men, which would make 576 skins reckoning by boats and canoes, or 602 skins reckoning by men, or striking a mean, 589 skins.
It has been shown that the average value of skins was about $8.60 per skin in 1894. Consequently on these figures the loss for the season may be estimated at about $5,000.
As damages are claimed in this case by the British Government not only for the owners but also for the officers and men who by the seizure were deprived of their earnings per skin, no deduction for wages should be made from the aforesaid value per skin.
The exact duration of the season is not stated, but it appears from the evidence that it extended through the month of August and the greater part of September, covering about forty days, so that the average value of the catch per day can be estimated at about $125. The evidence offered as a basis for this estimate is indefinite and inconclusive, but the Tribunal is of the opinion that taking into consideration the illegal detention of this vessel by the United States authorities for a period of nearly two months, it is justified in adopting a liberal estimate of the profits which she would have made on the five sealing days during which she might have hunted, if she had not been unlawfully detained by the United States until August 2nd. This Tribunal, therefore, considers that the damages for this detention should be fixed at $625 for her loss of profits, and $1,000 for the trouble occasioned by her illegal detention.
As to damages for the detention of the master, mate and men, there is no evidence sufficient to support these claims.
A sum of $120 is also claimed for injury to guns; but no evidence is afforded sufficient to support this item and it must be disallowed.
As to the sum of $126.50, the amount of certain provisions, which are said to have been supplied and purchased from H. M. S. Pheasant, there is no evidence sufficient to support it.
On the other hand, it appears from a letter dated August 5, 1894, addressed by the commanding officer of the American fleet to the Secretary of the Navy that some provisions valued at $21.95 supplied by the U. S. S. Concord to the Wanderer were not paid for. (United States Answer, Exhibit 13.) This sum then must be deducted from the total amount of damages to be paid by the United States Government.
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 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 the $625 damages allowed for loss of profits less $21.95 for the provisions supplied by the U. S. S. Concord, namely on $603.05.
For These Reasons
The Tribunal decides that the Government of the United States shall pay to the Government of His Britannic Majesty for the claimants the sum of One thousand six hundred and three dollars and five cents ($1,603.05), with interest at four per cent (4%) on Six hundred and three dollars and five cents ($603.05) thereof, from September 6, 1895 to April 26, 1912.
The President of the Tribunal,
In The Matter Of The David J. Adams
Claim No. 18
Decision rendered December 9, 1921
The United States Government claims from His Britannic Majesty's Government the sum of 88,037.96 with interest thereon from May 7, 1886, for loss resulting from the seizure of the schooner David J. Adams by the Canadian authorities in Digby Basin, Nova Scotia, on May 7, 1886, and the subsequent condemnation of the vessel by the Vice-Admiralty Court at Halifax on October 20, 1889.
7. As to the facts:
The David J. Adams, a fishing schooner (United States Memorial, p. 316), of 66 register tonnage, owned by Jesse Lewis, an American citizen of Gloucester, Massachusetts, United States of America; Alden Kinney, likewise an American citizen, being the master, sailed from Gloucester on or about April 10, 1886, for cod and halibut fishing on the Western Banks, lying to the southeast of Nova Scotia, in the North Atlantic Ocean, with special instructions to the master not to enter into Canadian ports. (United States Memorial, pp. 182, 185, 248.) After remaining on the Banks for about 12 days, the vessel proceeded to Eastport, Maine, United States of America, to obtain bait and other supplies, but being unable to procure at Eastport her needed supply of bait, she proceeded to Nova Scotia's shore, namely, to Annapolis Basin (United States Memorial, pp. 249, 309). On the morning of May 6, 1886, contrary to the owner's instructions, she entered Annapolis Basin, and when entering the Gut, she heard from another boat that there was bait at Bear River. (United States Memorial, p. 309.) Then she anchored above the mouth of Bear River (United States Memorial, pp. 269, 273, 288, 309). While the schooner was lying at anchor, the Master with some men of the crew went on shore, and addressing a Canadian fisherman, Samuel D. Ellis, he said that he wanted to know whether he had any bait, and on the affirmative answer of Ellis, he asked him whether he would sell it to him.
On the refusal of Ellis, because it was against the law and he could not sell to Americans, Kinney replied "that the schooner had been an American, but the English had bought her." Having been told by Ellis that the price was $1.00 a barrel, he offered $1.25, and so he bought four barrels of herring which had been caught the same morning. (United States Memorial, p. 275.) The same Kinney addressed, likewise, a certain Robert Spurr; he asked him who owned the bait, and the said Robert Spurr, showing about four and a half barrels of bait in a boat anchored in a weir, said it belonged to his father, William Spurr, and to his partner, George Vroom. The master of the David J. Adams bought those four and a half barrels and engaged the next morning's catch at the rate of $1.00 per barrel. On May 7th, as she was preparing to leave Digby Basin, the schooner was boarded by the chief officer of the Canadian cruiser Lansdowne, who asked the master what he was in for and if he had any bait on board; the master answered that he was in to see his people (United States Memorial, pp. 253, 289), and that he had no bait on board; then the said officer told Kinney that he had no business to be there; he asked him if he knew the law, and being answered affirmatively (United States Memorial, pp. 254, 258), he ordered the said master to proceed beyond the limits and returned to his cruiser. Being ordered by the Commander of the cruiser to board the schooner again and to examine her thoroughly, the same officer went alongside the schooner and told the master it was reported that he had bought bait. On the formal denial of Kinney, the officer proceeded to make a search, and having found bait, apparently perfectly fresh, was told by the master it was ten days old. Leaving the schooner again, the officer went to report to his commanding officer, and having so reported was ordered to return to the schooner with Captain Charles T. Dakin of the Lansdowne, who after putting the same questions and having received the same denials from the captain, returned to the Lansdowne, once more leaving the schooner free. But on their report the Commanding Officer of the Canadian Cruiser ordered the schooner to anchor close to the Lansdowne. The following day, *. e., on May 8th, the schooner was declared to be seized. (United States Memorial, pp. 253, 254, 259.)
On the same day, the vessel was removed to St. Johns, New Brunswick, and three days later she was taken back again to Digby.
On May 7th, a process in an Admiralty suit against the schooner was served on the vessel for (1) violation of the convention between Great Britain and the United States, signed at London on October 20th, 1818, and (2) for violation of the Act of the British Parliament, being Chapter 38 of the Acta passed in the 59th year of the reign of his late Majesty George III, and being entitled, "An Act to enable His Majesty to make regulations with respect to the taking and curing of fish in certain parts of the coasts of Newfoundland and Labrador, and in his said Majesty's other possessions in North America, according to a Convention made between His Majesty and the United States of America," and (3) for violation of Chapter 72 of the Acts of the Parliament of the Dominion of Canada made and passed in the year 1883, and entitled, "The Customs Act, 1883," and the Acts of the said Parliament of the Dominion of Canada in amendment thereof. (United States Memorial, p. 202.)
In the meantime, the Secretary of State of the United States having been informed by the shipowner of these occurrences, the American Consul General at Halifax, acting on the instructions of the Secretary of State, proceeded to Digby to inquire into the facts. He seems to have encountered some difficulties in ascertaining what were the grounds on which the Canadian authorities were basing the seizure (United States Memorial, pp. 39, 42, 43, 47), and it appears from the documents (United States Memorial, pp. 78, 79, 89), that the charges against the schooner were alternatively said by the Canadian authorities to be a violation of the Fisheries Stipulations in force between the British Government and the United States Government, and of the Canadian Fisheries Acts, and a violation of the Canadian Customs Acts. On the other hand, the Consul General must have had some difficulty in ascertaining the true facts, since in the master's affidavit of May 13th, is the solemn and misleading declaration that he did not buy bait when anchored above Bear River. (United States Memorial, p. 44.)
A diplomatic correspondence ensued with the United States Government protesting against what it contended to be a misinterpretation of the Treaty of 1818 by the Canadian Government and His Britannic Majesty's Government contending that, as the case of the David J. Adams was still sub judice, diplomatic action was to be suspended for the time being. After having been somewhat delayed, by reason of certain negotiations which took place in 1886-1888 between the two Governments concerning fisheries, the action for forfeiture of the David J. Adams and her cargo was decided on October 28, 1889, by the Vice-Admiralty Court at Halifax. The ship and her cargo were condemned as forfeited to Her Britannic Majesty for breach and violation of the Convention and the various Acts relating thereto, and ordered to be sold at public auction, and expressly on the following motives (United States Memorial, p. 326):
That the said vessel [David J. Adams] . . . did on or about the 6th day of May, A. D. 1886, enter into Annapolis Basin, . . . and that the said vessel David J. Adams and those on board the said vessel did so enter for purposes other than the purpose of shelter or of repairing damages, of purchasing wood or of obtaining water, and that the said vessel David J. Adams and those on board of the said vessel did within three marine miles of the shores of the said Annapolis Basin on the said 6th day of May A. D. 1886, prepare to fish within the meaning of the Convention between His late Majesty, George III, King of the United Kingdom . . . and the United States of America, made and signed at London on the 20th day of October, A. D. 1818, and within the meaning of . . . [British Act 59, George III, c. 38, and Canadian Acts, 31 Vict., Chap. 61 (1868), 33 Vict., Chap. 15 (1870), 34 Vict., Chap. 23 (1871) ], . . . and contrary to the provisions of the said Convention and of the said several Acts, and that the said vessel David J. Adams and her cargo were thereupon seized within three marine miles of the shores of the Annapolis Basin. . . .
It is not contested that no appeal was taken against that decision. Now this case is presented before this Tribunal under the following conditions:
By reason of certain conditions of fact and for various other considerations, while by the Treaty of London of October 20th, 1818, the United States renounced the liberty of fishing in Canadian waters, except on certain specified coasts, the access of American fishermen to the British territorial