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pair. But no sufficient evidence is adduced to prove the loss alleged and the compensation for the deprivation of use must be computed according to the ordinary rule of demurrage at 4d per ton gross tonnage, that will be for 894 tons, the Newchwang's gross tonnage, a sum of £774/16/0 for fifty-two days. According to the account of Farnham, Boyd & Co., Ltd., for executing repairs, the amount of those repairs was Taels 19,251.10, i. e., £2,401/7/6.
As to the interest, it appears in the evidence that a communication was made to the Department of State by the British Embassy at Washington in relation to this matter. (British Memorial, p. 61), but as a copy of that communication has not been produced the Tribunal is not in a position to say whether or not it was an official presentation of this claim, or to ascertain the date of the communication, and consequently the Tribunal is unable to decide on the question of interest.
For These Reasons
The Tribunal decides that the United States Government shall pay to the British Government the sum of Three thousand one hundred and seventysix pounds, three shillings and six pence (£3,176/3/6) on behalf of the China Navigation Company, Limited, owner of the S/S Newchwang.
The President of the Tribunal,
In The Matter Of The Kate
This is a claim presented by His Britannic Majesty's Government for $4,044.75 and interest for damages for the seizure and detention of the ship, cargo, officers and men of the British schooner Kate by the United States steamer Perry on August 26, 1896.
The Kate, a schooner of 58.11 tons gross, was a British ship registered at the Port of Victoria, B. C.; her owners were Henry F. Bishop and Samuel Williams, native British subjects, and Otto F. Buckholz, a naturalized Canadian, having been born in Germany. By charter party dated December 20, 1895, the Kate was chartered for the full season of 1896 for a sealing voyage in the waters of the North Pacific Ocean and Behring Sea by Carl G. Stromgren, a naturalized Canadian, having been born in Sweden; Emil Ramlose, also a naturalized Canadian, having been born in Denmark, and James Cessford, a native Canadian. Under the terms of the charter party, the charterers had to provision and equip the vessel, and one-fifth of the entire catch of skins for the season was to be paid to the owners. (British Memorial, pp. 4, 21, 22.)
On January 15, 1896, the Kate left the Port of Victoria, B. C, and sailed on her sealing voyage in the North Pacific Ocean. She was manned by Stromgren as master, Ramlose as mate, and Cessford as second mate, and four seamen and twenty-five Indians (British Memorial, pp. 23, 24), and had twelve canoes (British Memorial, p. 9).
On August 23rd, an officer from the United States cutter Rush boarded the Kate and overhauled the skins. (British Memorial, pp. 3, 24.)
On August 26th, 1896, the Kate, while in Latitude 57° 33' N., Longitude 172° 53' W., was boarded by an officer from the United States Revenue Cutter Perry, and seized, and the following entry was made in her log book:
Seized this day the British schr. Kate for having on board two (2) fur seal skins bearing evidence of having been shot in Behring Sea. (British Memorial, p. 25.)
At the same time the Captain of the Perry gave the master of the Kate a document (British Memorial, p. 6), reading as follows:
U. S. Revenue Cutter Service, Steamer 'Perry,'
August 26, 1896.
I, H. D. Smith, a captain of the Revenue Cutter Service of the United States, commanding the United States steamer'Perry,' declare that the British schooner 'Kate' of Victoria, whereof Stromgren is master, was this 26th day of August, 1896, boarded by Lieutenant F. J. Haake, R. S. C, who reported to me that said vessel had contravened the provisions of the Behring Sea Award Act, 1894. The following evidence, found upon search, is relied upon to prove such violation of law:
The aforesaid British schooner 'Kate' was found cruising within the area of the Award on the date given, namely, August 26, 1896, in Latitude 57.33 N., Longitude 172.53 W., from Greenwich, having on board two (2) fur seal skins bearing evidence of having been shot in the Behring Sea.
Having reason to believe, from the evidence cited, that the aforesaid British schooner 'Kate' had contravened the Behring Sea Award Act, 1894, in the following particulars, to wit: In having on board two (2) fur seal skins bearing evidence of having been shot in Behring Sea in violation of said Act and Article 6 of the Regulations of the Paris Award, incorporated in said Behring Sea Award Act, 1894, I have this day seized the aforesaid British schooner 'Kate,' her tackle and cargo, by authority of said Act and Ordersin-Council issued thereunder.
H. D. Smith,
The Perry took the Kate in tow and on August 29, 1896, arrived in Dutch Harbor at Unalaska, and a few hours later the master of the Kate was informed that she was released by order of the United States Commanding Officer of the Behring Sea Patrol, and the following entry was made in her log:
Released this day the Br. Sch. 'Kate' by order of Capt. C. L. Hooper, Commanding Behring Sea Patrol; she not having any guns on board.
The Kate remained at Unalaska August 30th, and while there the master of the Kate prepared and sent through the Commander of H. M. S. Satelite to Captain Hooper a protest in writing claiming compensation for all loss from the time the Kate was absent from the sealing grounds, until she arrived back again. (British Memorial, p. 26.)
On the following day, August 31, the weather being calm, the Kate was towed out from Unalaska by H. M. S. Pheasant. "On 3rd September, 1896, the sealing grounds having been reached" (British Memorial, p. 8, sec. 27), the Kate took 21 seals; on September 5th, 7 seals; on September 6th, 9 seals; on September 7th, 20 seals; on September 8th, in approximately the locality where she was seized by the Perry on August 26th, she took no seals, and on September 9th, she took 41 seals.
The Government of His Britannic Majesty, on behalf of the charterers and the crew of the schooner Kate, claim damages on account of the seizure of the said schooner, contending that it was illegal and without reasonable cause, or any justification whatsoever, and that even had the detention of the vessel been justified owing to circumstances showing guilt, she should have been delivered to the British naval officer at Unalaska, or in his absence taken to Victoria. (British Memorial, pp. 11, 12.)
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 senior naval officer in command of the American fleet, in ordering the release of the Kate, did so as a matter of grace and favor, and the release of the vessel is not proof that the seizure was unjustifiable; and fourth, because there is no basis in law or in fact for the measure of damages. (United States Answer, p. 2.)
I. As to the legality of the seizure and liability of the United States:
The authorities cited in the declaration of the captain of the Perry in making the seizure of the Kate, were article 6 of the Regulations of the Paris Award, and Behring Sea Award Act of 1894, and the orders-in-council issued thereunder.
Article 6 of the Regulations provides:
The use of nets, firearms and explosives shall be forbidden in the fur seal fishing. This restriction shall not apply to shotguns when such fishing takes place outside of Behring's Sea during the season when it may be lawfully carried on. (United States Answer, p. 22.)
The Behring Sea Award Act of 1894 put into operation the Regulations of the Paris Award, and also provided in section 3, paragraph 3 thereof, that—
An order in council under this act may provide that such officers of the United States of America as are specified in the order may, in respect of offences under this act, exercise the like powers under this act as may be exercised by a commissioned officer of Her Majesty in relation to a British ship. (United States Answer, p. 28.)
The order-in-council of April 30, 1894, provided in section 1 thereof that—
The commanding officer of any vessel belonging to the naval or revenue service of the United States of America, and appointed for the time being by the President of the United States for the purpose of carrying into effect the powers conferred by this article, the name of which vessel shall have been communicated by the President of the United States to Her Majesty as being a vessel so appointed as aforesaid, may, if duly commissioned and instructed by the President in that behalf, seize and detain any British vessel which has become liable to be forfeited to Her Majesty under the provisions of the recited act, and may bring her for adjudication before any such British court of admiralty as is referred to in section 103 of the "Merchant Shipping Act, 1854," ... or may deliver her to any such British officer as is mentioned in the said section for the purpose of being dealt with pursuant to the recited act. (United States Answer, pp. 45, 46.)
The commanding officers of the United States Naval Forces in Behring Sea received confidential instructions in a circular to Commanding Officers, No. 22, dated July 24, 1894, in part as follows:
Sealing vessels fallen in with after the 31st of July, in the Behring Sea, are to be carefully searched to see if there are any implements on board, not under seal, except spears, that could be used in fur seal fishing.
A number of skins are to be taken indiscriminately and examined to see if there are any marks of shot, as cheap firearms, to be thrown overboard with ammunition when escape is found to be impossible, may be carried. (United States Answer, Exhibit 7.)
By instructions from the United States Treasury Department, dated April 11, 1895, the Commander of the Behring Sea Fleet was directed—
It has been charged heretofore, that vessels of the patrol fleet, have not properly performed their duty in the matter of making search of sealing vessels fallen in with. . . . Should you find a skin on board a vessel that bears satisfactory evidence of having been shot within the Behring Sea, you will seize the vessel. . . . The search for skins, and the determination as to whether the animals were killed by spear or shot, is of equal importance with the discovery of firearms and the unlawful use of the same in Behring Sea, under the "Regulations governing vessels employed in fur seal fishing during the season of 1895." (United States Answer, Exhibit 8.)
Any special instructions for the sealing season 1896 are not included in the evidence furnished in this case. The only evidence produced of the instructions for the season 1896 is a letter from the Secretary of State to the British Ambassador in Washington, dated April 14, 1896, in which, calling attention to the provision of the order-in-council of April 30, 1894, above quoted, it is stated—
The President has designated the revenue steamers Bear, Rush, Perry, Corwin, Grant and Wolcott to cruise in the North Pacific Ocean and Behring Sea, including the waters of Alaska within the dominion of the United States, for the enforcement of the acts of Congress approved April 6 and 24 and June 5, 1894, . . . during the season of 1896. (United States Answer, Exhibit 9.)
The fact that the Kate had among her catch two seal skins that presented the appearance of being shot, when neither guns nor ammunition, except powder for the signal gun, were found on board, did not seem to the Commander of the United States Behring Sea Fleet, when the Kate was brought to him at Unalaska, "proof of guilt sufficiently strong to justify sending the vessel to court," and he ordered her immediate release; but at the same time he commended the captain of the Perry for his strict "obedience to orders to 'seize any vessel having seal skins on board that appear to have been shot.'" (United States Answer, Exhibit 11.)
In the circumstances, while there is no question of the bona fides of the officer making the seizure, it is evident that his superior officer did not consider that there was reasonable ground for the seizure. It follows, therefore, that on the evidence presented here, it must be held that the seizure of the Kate was unjustifiable, and the United States Government is responsible for any damage resulting from this seizure as the case stands.
II. As to the measure of damages:
The estimated probable catch of the Kate during the period from August 26 to September 7th inclusive, is fixed by the claimants as 145 seal skins at a value of $7.55 each, amounting to $1,094.75. This estimate is based on the catch of the Schooner Dora Steward, which had sixteen canoes, while the Kate had twelve, being twelve-sixteenths of the 329 seals skin taken by the Dora Steward during that period, less the 102 seal skins taken during the same period by the Kate.
A comparison of the catch of the Kate with the catch of the Dora Steward shows that during the period between August 23rd and 26th inclusive, the Kate took 76 seals and the Sieward 166; and after the return of the Kate to the locality where she was seized, she took during the period between September 8th to 15th inclusive, 49 seals and the Sieward 102. As measured by the Sieward, the efficiency of the Kate was somewhat higher after her return, following her seizure, than prior thereto, but the efficiency of the Kate was always less than one-half the efficiency of the Sieward, as shown by a comparison of their catches day by day. Therefore, as the claimants have asked that compensation for loss of catch for the period during which she was illegally prevented from sealing should be based on a comparison with the actual catch of the Dora Sieward during the same period, the claimants cannot complain if fifty per cent (50%) of the catch of the Dora Sieward is taken as the probable catch lost by the Kate.
Inasmuch as the sealing operations of the Kate on August 26th were not disturbed, the last canoe not having come on board until 7 P.m. of that day,