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licensed pilot and the boatswain as lookout. She had no lookout on the forecastle.
At about 8 o'clock in the morning the Potomac passed Fort Carroll and proceeded up the river on the starboard side of the channel heading up; at that time the weather was still clear (United States Answer, p. 44), but about ten minutes later it suddenly changed and a dense fog shut in upon the water.
Before the fog shut down, the Potomac sighted a steamer under way about two miles ahead in the channel, and, according to the commanding officer, she was the Sidra (United States Answer, p. 18).
As soon as the fog shut in, the Potomac slowed gradually until going 4 knots (United States Answer, p. 44), and blew her whistle in conformity with the regulations. She passed on starbord hand close aboard of one of the buoys marking the starboard side of the channel, then she passed a second one which she ran over, then having altered her course so as to keep more in the channel, she heard the bell of a ship, which proved to be the Sidra. The sound seemed to her to come from dead ahead; her course was altered so as to bring it on the starbord bow. But suddenly the shape of the steamer loomed up dead ahead at about 100 or 150 feet. The Potomac immediately reversed the engines full speed astern, but she was unable to check her headway in sufficient time to avoid collision. The Potomac collided with the Sidra at about right angles, causing her a large amount of damage without damaging herself. At the moment of the collision it was 8:15 a.m.
A few days after the collision occurred, i.e. on November 3, 4, 6 and 9, 1905, a United States Naval Board of Investigation was convened by the Commander in Chief of the North Atlantic Fleet, to inquire into he circumstances of the collision, and to express an opinion as to which one of the two vessels was responsible for the collision. The conclusion reached by that board was that the Sidra was responsible, as she might have anchored well clear of the channel and she did not.
Before this Tribunal the British Government contend that the collision occurred by the fault of the Potomac in that she was proceeding at an excessive rate of speed in fog and did not stop her engines and navigate with caution on hearing forward of her beam the fog signal of a vessel anchored, whose position was not ascertained, and further in that the Potomac did not keep within the channel but ran outside thereof, and in that she did not maintain a proper or sufficient lookout.
The United States Government contends that the collision was due to the fault of the Sidra in anchoring in the channel and obstructing the path of navigation, while she might, without difficulty and with perfect safety, have been anchored outside and out of the path of other vessels.
According to the well settled Admiralty rule, recognized both in the United States and Great Britain, in case of a collision between two ships, one of them being moving and the other at anchor, the liability is for the vessel underway, unless she proves that the collision is due to the fault of the other vessel.
Consequently in this case, the responsibility lies upon the Potomac and the Government of the United States, unless and so far as it is established that the Sidra was in fault.
In that respect there is not sufficient evidence to show the exact location of the place where the Sidra anchored and the collision took place. It has been stated by the commanding officer of the Potomac (United States Answer, p. 17) that the Sidra's anchor was a little outside the line of buoys on the easterly or starboard side of the channel, the ship herself lying across the channel. Also, there is the concurring statement of those on board two other vessels, the Chicago and the Sparrow. The Sparrow said that she saw the Sidra lying her portside parallel with the line of the channel about 50 yards from it, i.e., 160 feet. And the Chicago said that she saw the Sidra lying from 150 to 200 feet from the channel and at the time the vessel did not project into the channel.
On the other hand, the testimony of the captain of the Sidra shows that he took no soundings before or when anchoring (British Memorial, p. 41); that he did not know where he anchored from bearings, buoys, etc. (ibid.), and that he anchored when he thought he was clear of the channel, but he did not know (ibid. question 31, p. 41; question 79, p. 70; see also p. 76), and that after the collision at 8:20, the tide beginning to change, he used the engines to bring the vessel around quicker, in order not to be laying across the channel, and afterwards changed her anchorage in order not to be "worrying about" vessels passing up and down; furthermore he admitted that he could have gone at least half a mile further to the northeast with entire safety and that there is 34 of a mile between the line of the channel and the shoal water (see British Memorial, pp. 64, 65, 70).
No sufficient evidence is afforded by the British Government to contradict the above elements of proof, from which it results that the Sidra anchored outside the channel, but, being given her 322 feet length, not far enough to prevent her from rounding across the eastern side of the path of navigation. As noted by the United States Board of Inquiry, “prudence would dictate to any vessel finding herself under the necessity of anchoring to choose a position well clear of the channel.” This the Sidra did not do, and no reason is given why it could not have been done. As it has been shown there was about 12 mile room farther outside the channel; the Sidra said that she rounded one of the buoys marking the channel before anchoring; then she had the possibility of calculating how far she had to go to be certain she was entirely clear of the line. It was so much more her duty to do it, since she heard the whistle of other vessels in the neighborhood. (British Memorial, p. 66, question 50.)
By that lack of prudence, the Sidra had, in this Tribunal's opinion, contributed to the collision.
As regard the Potomac, this Tribunal regrets not to have before it such important testimonies and documents as the testimony of the chief engineer and the log book of that vessel. But it results from the testimony of the commanding officer that when the vessel heard the bell of the Sidra she was going at 4 knots an hour, and that after she had stopped her engines and altered her course to port, again she continued her course ahead under the same speed (United States Answer, pp. 16, 32, 46 and 62) without ascertaining the location of that bell.
In dense fog, it is the common rule of prudent navigation not only to stop as soon as a bell is heard, but also to keep stopped until the location of the other vessel ringing the bell and being an obstruction be ascertained, and everybody knows that it is impossible in fog to rely upon the apparent direction of the sound for ascertaining that location (see Marsden, Collisions at Sea, pp. 378, 379).
That rule is confirmed by articles 16 and 23 of the Inland Rules of the United States as they have been construed by various federal decisions (The Grenadier v. The August Korff, 74 Fed. Rep. 974, 975).
Furthermore it must be observed that whatever be her naval orders, the Potomac was proceeding in a narrow channel of 600 feet wide, frequented by numerous ships going up and down, and that she knew another steamer was ahead on her way, and she had to be especially cautious as to her speed, and the strict observance of the most prudent navigation. The Potomac, as has been shown, had no lookout on the forecastle and she was proceeding in a fog so dense that she was unable to sight the Sidra until about 50 feet before colliding and she was proceeding at such a speed as to make her unable to avoid collision.
For these reasons, the Potomac is to be held responsible for the collision, for not navigating with sufficient prudence, and on the other hand, the Sidra is to be held as having contributed to the collision by having imprudently anchored too close to the channel.
According to the well settled rule of international law, the collision having occurred in the territorial waters of the United States the law applicable to the liability is the law of the United States, according to which when both ships are to blame the damage suffered by each of them must be supported by moiety by the other.
It results from the United States inquiry that the Potomac suffered no damage, and it is shown by the documents that the damage suffered by the Sidra amounts to £4,336/7/4, including £750 for demurrage. Consequently the United States Government, as the owner of the Potomac, is liable for £2,168/3/8.
As for the interest, it seems difficult to consider the letter of November 10, 1905, by which the representatives of the Sidra asked for the result of the United States Naval investigation, as having brought the present claim to the notice of the United States Government.
FOR THESE REASONS: This Tribunal decides that the United States Government shall pay to His Britannic Majesty's Government for the benefit of the owners of the Sidra, the sum of Two thousand one hundred and sixty-eight pounds, three shillings and eight pence (£2,168/3/8).
The President of the Tribunal,
HENRI FROM AGEOT.
IN THE MATTER OF THE SCHOONERS JESSIE, THOMAS F. BAYARD, AND
CLAIMS Nos. 24, 25, AND 26
Decision rendered December 2, 1921
These are three claims presented by His Britannic Majesty's Government: (1) for $38,700 on behalf of the British schooner Jessie, (2) for $51,628.39 on behalf of the British schooner Thomas F. Bayard, (3) for $52,661.60 on behalf of the British schooner Pescawha, together with interest from June 23, 1909.
It is admitted that the Jessie, the Thomas F. Bayard, and the Pescawha, all of them British schooners, cleared at Port Victoria, B. C., for sealing and sea otter hunting, and were in June, 1909, actually engaged in hunting sea otters in the North Pacific Ocean; that on June 23, 1909, while on the high seas near the north end of Cherikof Islands they were boarded by an officer from the United States Revenue Cutter Bear, who, having searched them for seal skins and found none, had the firearms found on board placed under seal, entered his search in the ship's log, and ordered that the seals should not be broken while the vessels remained north of 35° north latitude, and east of 180° west longitude.
The United States Government admits in its answer to the British Memorial that there was no agreement in force during the year 1909 specifically authorizing American officers to seal up the arms and ammunition found on board British sealing vessels, and that the action of the Commander of the Bear in causing the arms of the Jessie, the Thomas F. Bayard, and the Pescawha to be sealed was unauthorized by the Government of the United States.
The United States Government, however, denies any liability in these cases, first, because the boarding officer acted in the bona fide belief that he had authority so to act, and second, because there is no evidence on the claims except the declaration of the interested parties, and because these claims are patently of an exaggerated and fraudulent nature.
1. As to the liability:
It is a fundamental principle of international maritime law that, except by special convention or in time of war, interference by a cruiser with a foreign vessel pursuing a lawful avocation on the high seas is unwarranted and illegal, and constitutes a violation of the sovereignty of the country whose flag the vessel flies.
It is not contested that at the date and place of interference by the United States naval authorities there was no agreement authorizing those authorities to interfere as they did with the British schooners, and, therefore, a legal liability on the United States Government was created by the acts of its officers now complained of.
It is unquestionable that the United States naval authorities acted bona fide, but though their bona fides might be invoked by the officers in explanation of their conduct to their own Government, its effect is merely to show that their conduct constituted an error in judgment, and any government is responsible to other governments for errors in judgment of its officials purporting to act within the scope of their duties and vested with power to enforce their demands.
The alleged insufficiency of proof as to the damage and the alleged exaggeration and fraudulent character of the claims do not affect the question of the liability itself. They refer only to its consequences—that is to say, the determination of damages and indemnity.
II. As to the consequences of the liability:
It must first be observed that the insufficiency of proof as to damages, and the alleged exaggeration of the claims formulated by the British Memorial are not enough in themselves to justify the charge that they are fraudulent in character. For this Tribunal, the mere fact that the claims are presented by the Government of His Britannic Majesty is sufficient evidence of their complete bona fides.
The three schooners, after their arms and ammunition had been sealed with an order that the seals must not be broken until they were outside the conventional protected zone of fur-sealing, went across the North Pacific Ocean to catch fur-seals alongside the Russian islands in the western part of that ocean.
It has been submitted by the United States Government that in any event the vessels would have made the same voyage; but of that contention no sufficient evidence has been given.
On the other hand, it is shown by the agreements with the crews that the possibility of such a voyage was contemplated by the owners and the captains. It is admitted by counsel for Great Britain that no damage was actually suffered on the voyage by any of the three vessels. Further, it is admitted that the catching of fur seals on the coasts of the Russian islands