No. 142.] The Secretary of State to Ambassador Meyer. DEPARTMENT OF STATE, SIR: I inclose copy of a letter from the Savage Arms Company, of Utica, N. Y., who express the hope that the Russian prohibition of the importation of arms may be relaxed, so as to allow them to import small-caliber target rifles and other small rifles for game shooting. They allege that the prohibition has been relaxed in favor of certain Belgian manufacturers of arms. You may look into the matter and see whether there is any discrimination against Americans, and if you find this to be the case request equally favorable treatment for them. I am, etc., No. 613.] ELIHU ROOT. Ambassador Meyer to the Secretary of State. AMERICAN EMBASSY, St. Petersburg, August 10, 1906. SIR: In reply to the department's instruction, No. 142, of May 19, inclosing a letter from the Savage Arms Company, I beg to report that a careful inquiry into the matter of the alleged relaxation of the prohibition against the importation of firearms into the Russian Empire discloses no discrimination against American firms in this respect. It has been further explained to me that if, after the prohibition against such importation had gone into effect, any small firearms had been permitted to pass through the custom-houses they could only have been intended for some government institution, and in such case the clearance of said small firearms must have required a special permit from the director of customs; the director of customs, however, has no knowledge that any such permits have been issued. I have, etc., G. VON MEYER. The Russian Ambassador to the Acting Secretary of State. No. 246.] [Translation.] IMPERIAL EMBASSY OF RUSSIA, Magnolia, Mass., August 10, 1906. SIR: In continuation of my note to the Secretary of State, dated March 16 last, I have the honor, by order of my Government, to advise the Department of State that, with a view to checking more effectively the unlawful importation of firearms and explosives into Russian ports in the Baltic, the Imperial Government has decided to extend to the flotilla of revenue cutters charged with surveillance and prevention of smuggling in Russian territorial waters the assistance of war ships of the imperial navy. There is nothing unusual in this cooperation, for which provision is made in the laws of the Empire. As to the instructions that have been issued to the officers of war vessels to that effect, they are in every respect consistent with the provisions of the Russian customs law and the general rules of international maritime law. SIR: In compliance with the department's instructions cabled to me under date of April 18, I have the honor to inclose herewith a copy in Russian of the proceedings and decision of the supreme court in St. Petersburg in the case of the Knight Commander, as well as a copy in Russian of Mr. Berline's protest as regards neutral goods, together with the translation into English of both these documents. I have, etc., G. VON L. MEYER. [Inclosure 1.-Translation.] DECISION. By a ukase of His Imperial Majesty the supreme prize court at its session on November 19, 1905, at which were present the president, Adjutant-GeneralAdmiral Kaznakoff, member of the admiralty council, and the following members of the admiralty council: Admiral Koupreanoff, Vice-Admiral Verkhovsky, Vice-Admiral Dykoff, Vice-Admiral de Livron; Senators, Actual Privy Counselor Grave and Privy Counselor Count Tisenhausen; also the member from the ministry for foreign affairs, Privy Counselor Martens, and the Acting Procurator, Privy Counselor Steblin-Kamensky; Acting Superior Secretary, State Counselor Sourine, heard the appeal in the decision of the Vladivostok prize court, rendered on July 24, 1904, in which the steamer Knight Commander and the cargo on said vessel when seized was condemned to be confiscated as being contraband of war. The circumstances of the case are as follows: On July 11, 1904, about 6.30 o'clock in the morning, a detachment of cruisers, under the command of RearAdmiral Jessen, consisting of the cruisers Rossia, under the command of Captain of the First Class Andreeff; the Gromoboi, under the command of Captain of the First Class Dabitch; and the Rurick, under the command of Captain of the First Class Troussoff, while cruising in the Pacific Ocean in latitude 34° 21' north and 138° 53′ 5′′ west, sighted a trading vessel. The Rossia steamed in pursuit, and when at a distance of 15 to 20 cable lengths hoisted the signal "stop," and fired blank shots one after the other, and noticing that the steamer continued to steam at full speed in the direction of the Gulf of Tokyo, it fired two shots at the fore part of the steamer. Then only did the steamer heave to, and hoisted the British flag. By order of the commander of the cruiser Rossia the signal for "the captain to come on board with his papers" was hoisted, but as this order was not carried out a detachment under the command of Lieutenant Gavrishenko and Midshipman Baron Aminoff was sent to examine the vessel, its manifest, and cargo. Upon reaching the vessel it was found that the steamer was named the Knight Commander, English, and, in command of Capt. J. K. Durant, was proceeding to Japan with a cargo consisting of railway material, parts of bridges, machinery, and mixed cargo. The captain could produce no papers. The examination of the holds made by the above-named officers showed that they contained almost exclusively contraband of war, the balance of the cargo being comparatively very small. Having visited the steamer, Lieutenant Gavrishenko returned to the cruiser, together with the captain and documents. Captain Durant being asked why he was not in possession of the cargo's bills of lading, and learning from him that there was coal on the steamer for not more than four days, Rear-Admiral Jessen declared to the captain that as the steamer was subject to confiscation and there was not sufficient coal to take it to a Russian port, he would destroy her. Half an hour's time was given for the crew to disembark. At 8.32 Captain Durant returned to his vessel and at 9.15, as soon as the crew had left, the steamer was blown up. Upon the return of the detachment of cruisers to port the case of the sinking of the said steamer was examined by the prize court of the port of Vladivostok. Upon the presentation by Captain Durand to the court of the ship's papers it was seen that the steamer Knight Commander, British flag, was built at Harrow, in 1890, had a displacement of 9,620 tons, gross tonnage of 4,305.53, registered tonnage being 2,716.32, speed 11 knots, registered at the port of Liverpool, No. 97801, and the property of Robert L. Greensheilds, of Liverpool. From the entries in the log book, supplemented by explanations given by Captain Durand, it was seen that up to December, 1903, the vessel plied between Calcutta and other ports of India. In December the vessel was chartered by the British Lloyd for one trip to Triest and Venice. In Venice the steamer was chartered by an Austrian firm at Triest to carry coal, machinery, and other cargo to Messina, and thence to Palermo with a cargo of 25,000 cases of lemons and other goods for New York, where the charter expired. In New York the vessel was not chartered, but, taking up various goods, it was sent by the agents of the shipowners to Port Singapore, Manila, Shanghai, Yokohama, and Kobe, where the present trip was to end. With regard to the cargo, the captain not having been able to produce any bills of lading or either the ship's manifest referring to it, the court could only form an opinion of that part of it which was addressed to Yokohama and Kobe, which was found on board the steamer at the time of its arrest by the Russian cruisers. At the same time, as Captain Durant could produce no documents concerning that portion of the cargo which was examined by the court to show its nature or quantity, and the court had only at its disposal the deposition of the officers of the imperial fleet, Lieutenant Gavishinko and Midshipman Baron Amirioff. The explanations given by Captain Durant, the entries made in two privateletter books presented by the latter, and these, when carefully compared, showed that the cargo at the time of the seizure of the vessel consisted of the following articles: Rails, parts of bridges, various railway material, steel, steel sheets, nails, wire, tubes, wheels, tar, acids, shovels, and a small amount of mixed goods consisting of paint, clothing, leather, sail cloth, tin plates, hardware, timber, and small articles, such as ink, scents, soap, etc. As stated above, the captain produced no manifest. When asked with regard to this, the captain stated that he gave the shipowners' agents full powers to sign the manifests; that he saw some of he manifests for the first time at Shanghai at the office of Arnold Harberg, but that he never received copies of the bills of lading or manifests, nor did he sign a single bill of lading. Captain Durant could not recollect whether he took oath or not for the ship's manifest, and could not explain otherwise the absence among his papers of the New York port "clearance papers." The Vladivostok prize court found that the vessel should have been in possession of copies of bills of lading and in all cases of the ship's manifest of cargo-that in America the execution of such formalities is absolutely required, which fact was confirmed by Captain Durand in his letter to the shipowners dated from Messina on March 3, 1904, and that consequently, without his signature, under oath of the manifest, in that it contains a correct list of the cargo taken on board and destined to parts mentioned in the manifest he would not be allowed to discharge in port. That he was allowed to discharge is shown by the fact that the Knight Commander discharged at Manila that part of the cargo destined thereto. That without his signature to the manifest he could not discharge such cargo is proved by the fact that at Manila he signed a manifest, under oath, which simply stated that he had not taken any goods on board. That a manifest signed by the captain in New York and the clearance papers should have been on board is clear from the circumstances, firstly, that the Manila manifest and clearance papers were found among the documents presented 66 by Captain Durant, and secondly, on a leather case, bearing the inscription Steamer Knight Commander, for the guidance and memory of the captain," is given a full list of all the documents which the vessel must absolutely carry, and among them the ship's manifest and clearance papers. Therefore Captain Durant could not fail to recollect whether or not he signed a manifest at New York, and could not be without a clearance paper of said port and without a manifest of the cargo duly signed by himself. The fact of Captain Durant's statement that he could not recollect whether he signed them or that he must have lost these documents, as a reason for not possessing them, cannot be considered. The real explanation must be that Captain Durant destroyed them as compromising his vessel or at least intended to hide them. The insincere explanations of Captain Durant can also be seen in his business correspondence with the shipowners, of which the court became acquainted through the press copy letter book produced by him together with other papers. From these books, recognized as belonging to him and containing copies of his (Captain Durant's) letters, written in his own hand, the following expressions are to be remarked, which clearly show the true character of the vessel's destination, as well as the correspondence with regard to the requirements of neutrality on the part of the shipowner and captain. 1. Page 422 of press copy book: "New York, April 15, 1904. Stowage is progressing very slowly, thanks to the nature of the goods, for we were nearly two full days in stowing parts of bridge constructions weighing from 6 to 7 tons each. Our agents cabled to Chemulpo to prepare proper cranes for discharging purposes, but no reply has so far been received. I shall thus be obliged to get proper tackle and heavy pulleys in order to discharge this portion of the cargo and have an end of it, and perhaps may sell them at a profit. This class of cargo puts us to a great deal of trouble, as we are not outfitted with necessary pulleys and cordage." 2. Page 424: "New York, April 22. I regret to have to inform you that we are still stowing very slowly, thanks to the nature of the cargo with which we have to deal. We are stowing the bridge material in hold No. 1 in destination for Chemulpo." 3. Page 443: "Shanghai, June 19. As far as I have been able to ascertain from Mr. Arnold Karberg, the passage to Chemulpo at the present time is not without danger. They have strongly advised me, if I should still decide to try, to go south, then straight to the west before touching at any port. I have not the intention of throwing off the responsibility, but do not see either why we should want to meet a catastrophe. From your yesterday's letter I was fully under the impression that we had not to discharge at Chemulpo. Our last sure port on the way hence will be Kobe. Be assured that I will carefully weigh these circumstances, as well as that of considering whether or not it will be safe to travel farther. I am afraid that the stem of our vessel will sit very low in the water when the cargo for Kobe (the actual) is discharged, as, when loading, holds No. 2,41 were the ones which took in the greater portion of the bridge material." From the above correspondence it is visible, firstly, that the vessel was far from being a passive arm in the transport of contraband of war to the enemy, but that, on the contrary, the owner of the vessel took a marked part in this operation; secondly, that in reality the carefully hidden destination of the vessel was Chemulpo and not Yokohama or Kobe-in other words, the acting Japanese army; and, thirdly, that the true nature of the cargo as well as its destination and that of the vessel were well known to Captain Durant. Meanwhile, in his explanations before the court of the different circumstances of the vessel's voyage, Captain Durant, who was not aware that his letter-press copy books were in the hands of the court, declared that the parts of the bridge were destined to Kobe, and that he was not aware that railway material was contraband of war. In view of the discrepancies in Captain Durant's explanations before the court, as well as the hiding away of a whole lot of very important documents regarding the steamer and cargo, the summons to him to aid in establishing the quantitative relation of articles of contraband as compared with the total quantity of cargo on the steamer at the time of its arrest was not found possible by the court. As regards two private notebooks, Nos. 4 and 5, in view of the fact that they only contain data relative to goods and their marks addressed to Yokohama and Kobe, without their weight or capacity; that they do not contain any information relative to the rails and in general to the railway material which was found on board as being destined for Kobe; that relative to this material no documents or notes were presented to the court, nor the slightest indication shown about railway material, and that, after all, these notebooks Nos. 4 and 5 were private property, incomplete and insufficient, the only proofs in the absence of absolute proofs for determining the relative quantity of contraband cargo found on the Knight Commander were, for the court, the depositions of Lieutenant Gavrishenko and Midshipman Baron Aminoff, who searched the vessel. Having examined the fore holds, which were the largest, the first named saw that the cargo consisted of railway material in the form of parts unmounted, such as bridges, rails, tubes for boilers, car-body springs, with wheels as well as cogwheels, angle-iron bars, telegraph wire, and barrels of cement. The cargo in the after holds examined by both officers also, for the most part, consisted of railway material, iron tubes in large quantities occupying over one-third of the hold, as well as parts of machinery and their accessories, and, finally, the center hold also contained railway material in the form of car bodies or movable platforms. In making the examination of the holds in company with Baron Aminoff, Lieutenant Gavrishenke came to the conclusion that the Knight Commander's cargo was contraband, and if she carried noncontraband goods they were in very small quantity. Therefore, in the opinion of the Vladivostok prize court, there remains absolutely proved: 1. The actual illegal action on the part of the owner of the steamer Knight Commander in transporting to our enemy at Chemulpo, directly at the theater of operations, articles of contraband of war; 2. The hiding by the captain of said steamer of a whole set of very important documents relating to his vessel and its cargo as well, as his evident knowledge of the fact that he was carrying articles of contraband of war to our enemy; and 3. The finding on said steamer at the time of its seizure of contraband of war in quantities undoubtedly far exceeding half of the total cargo. On this ground, and being guided by the facts in the present case provided for in sections 5, 8, and 13 of the Naval Prize Regulations, the prize court found: 1. That the English steamer Knight Commander was properly captured within the observances of the rules provided for in sections 2, 3, 15, and 17 of the prize regulations, and 2. That the said steamer which was carrying contraband of war destined to the enemy in quantities exceeding one-half of the total cargo, as well as the cargo, are properly legal prizes; and, therefore, on July 24, 1904, it resolved; that the steamer Knight Commander and the contraband of war cargo "found on her at the time of the seizure, were legal subject to confiscation, as legal prizes. 66 Mr. Bajenoff, attorney for the owners of the vessel and of the cargo, appealed against this decision and stated: 1. That section 36 of the instructions for the visiting and arrest of vessels had not been properly carried out, namely, the protocol of the search made on the vessel as well as the resolution for the sinking of the same, were not signed by Admiral Jessen, giving his reasons and the section of the instructions by which he destroyed the steamer. 2. That Captain Durant was examined, although not under oath, but as a witness, which is an infringement of section 64 of the "regulations" which recognizes him as one of the parties and not subject to examination as a witness. In examining the decisions of the court relative to the recognition of the steamer Knight Commander as a legal prize, the lawyer in his appeal, states: 1. That the deductions made by the court from this correspondence as to the insincerity of the captain's explanation and the reference to the obligations of neutrals can scarcely be considered convincing. 2. That the accusation brought against the captain that he hid the documents can be but a supposition of the court, unsupported by any real facts. 66 3. That in the evidence taken in forming its decision the court had not sufficient data for determining the quantity and quality of the cargo, and based its verdict upon the doubtfulness of the captain's explanation found as absolutely worthy of confidence for determining the relative quantity of cargo contraband of war on the Knight Commander the depositions of the officers, Gavrishenko and Aminoff, who examined the whole vessel. |