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Court, did not exercise their right to have the cases reopened and to put in their defence before the court. (United States Memorial, Exhibits 25, 26.)
It does not appear that there was any diplomatic correspondence relating to these cases before they were submitted to this arbitration. In law:
By article 1 of the Treaty concluded at London, October 20, 1818, between the United States and Great Britain, it was stipulated that, except in certain localities, without interest in this case, the United States renounced
forever, any liberty heretofore enjoyed or claimed by the inhabitants thereof, to take, dry, or cure fish on or within three marine miles of any of the coasts, bays, creeks, or harbors of His Britannic Majesty's dominions in America not included within the above mentioned limits; Provided, however, that the American fishermen shall be admitted to enter such bays or harbors for the purpose of shelter and of repairing damages therein, of purchasing wood, and of obtaining water, and for no other purpose whatever.
By the Imperial Statute 59, George III, Chapter 38 (1819), article II, it is prohibited to any foreigner in a foreign vessel to fish for or to take any fish within the three-mile limit of the Canadian coast, and by the Revised Statutes of Canada, 1856, chapter 94, sections 1, 2, 3 and 7, certain penalties and the forfeiture of the vessel, and the legal prosecutions are provided for in case of contravention.
It is a universally recognized principle of international law that a State has jurisdiction over sea-fishing within its territorial waters, and to apply thereto its municipal law, and to impose in respect thereof such prohibitions as it may think fit. The Treaty of 1818 did not make any exception in regard to the inhabitants of the United States in these waters.
The only question then to be decided in this case is whether or not the boats and seines of the Argonaut and French were within the three-mile limit.
It is to be noted that, though the Canadian regulations required them to be made (see David J. Adams' case, United States Memorial, p. 358), no official statement of the circumstances of the alleged offences or of the legal provisions alleged to be contravened, no document drawn up by the officers who carried out the seizures proving the alleged illegal position of the boats and seines, or reporting any bearings or soundings taken at the time, are presented by the British Government in justification of the action of their naval authorities. The log book of the Cutter Critic is not even produced. The only documents presented are the two brief reports, above referred to, stating the fact of the seizures for violation of the statutes in force in Canada, relating to foreign fishing vessels. This is insufficient proof of the legality of the seizures.
However, according to article 5, paragraph 4, of the Special Agreement, this Tribunal is to decide all claims submitted upon such evidence or information as may be furnished by either Government.
In regard to the Argonaut, it results from the affidavits of the owner, master and men, produced by the United States (United States Memorial, Exhibits 7, 8) and above referred to, that, first, the boat and seine were set at four miles off shore; second, that they remained out for about one hour and were drifting shoreward with the tide; and third, that the tide was running to the eastward at from two and a half to three miles an hour.
In his protest, the owner does not contest so much the position of the boat and seine within the three-mile limit as the alleged act of fishing to which the Canadian law was applied; nor does the United States Consul General, when reporting to the Assistant Secretary of State on August 7, 1887, the statements of the men, deny that the boats were seized within the three-mile limit (United States Memorial, Exhibit 2).
In regard to the boat and seine of the Colonel Jonas H. French, the sworn affidavits of the owner, master and men, produced by the United States (United States Memorial, Exhibits 14 and 15) show, first, that the vessel was three and a half miles from the shore; second, that the mackerel were one mile outside the vessel, so that the boat and seine were four and a half miles from the shore when the seine was set out; and third, that they delayed about three-quarters of an hour, being swept shoreward by the ebb tide, when they were seized.
It must be observed that though the intention was to fish quite near the three-mile limit and though with the exercise of a very small amount of prudence it could have been foreseen that there would be a strong tide setting shorewards, there was on board the boat no anchor or any other means of preventing it drifting within the prohibited zone.
On all the facts presented in these cases, this Tribunal finds that the boats and seines of both vessels were less than three miles from the shore when seized.
The boats and seines of the two vessels being inside the territorial waters, were, from the international law point of view, undoubtedly subject to the municipal law and the jurisdiction of Canada, and the question whether or not, under the circumstances of these cases, taking into consideration the good faith of the fishermen and the exact character of their acts, a proper interpretation and application of the Canadian law was made by the Canadian court is a question of municipal law and not a question of international law to be decided by this Tribunal, so far as these cases stand.
In regard to the contended intention of the Canadian authorities, to seize the two schooners themselves, that mere intention, even if any such existed, cannot by itself be the basis for indemnity unless it was actually manifested by some wrongful act, and, in that respect, no sufficient evidence is offered to establish any order of seizure given, or any other measure of execution taken against the two vessels.
FOR THESE REASONS :
This Tribunal decides that the claims be dismissed.
(Signed) HENRI FROMAGEOT.
IN THE MATTER OF THE SIDRA
CLAIM No. 23
Decision rendered November 29, 1921
This is a claim presented by His Britannic Majesty's Government for £4,336/7/4 and £1,127 interest for damages on account of a collision which occurred during a dense fog in the Patapsco River in the approaches of Baltimore Harbor, Maryland, in the territorial waters of the United States on the 31st of October, 1905, between the United States Government tug boat Potomac and the British merchant ship Sidra.
It appears from her certificate of registry that the Sidra, a steamscrew vessel, was in 1905 a British ship of 5,400 tons displacement, 322 feet long and drawing 10 to 12 feet.
The Potomac was a steamscrew tug boat owned by the United States Government; she was 135 feet in length with a draft of about 15 feet; her displacement was 650 tons.
On October 31, 1905, at 6 o'clock in the morning, the Sidra bound from New York to Baltimore was proceeding up the channel to Baltimore harbor; the pilot and the captain were on the bridge, a seaman was at the wheel, the chief officer and carpenter were stationed on the forward deck by the anchor, which was ready to let go.
At about 7:30 a. m. soon after passing Fort Carroll, the weather became foggy, and the fog became so thick that at 7:45 in the judgment of pilot it was prudent to anchor. The exact position of the vessel, when anchored, is contested.
Immediately upon anchoring, the Sidra rang her bell in conformity with the Inland Rules of the United States, article 15, and thereafter hearing the fog-blasts of an approaching steamer, which proved to be the Potomac, she continued to ring her bell.
On the same day, October 31, 1905, at about 6 a.m., the United States tug boat Potomac had left Annapolis, under orders to proceed to Baltimore to obtain provisions for the North Atlantic fleet and to return to Annapolis on the afternoon of that same day (United States Answer, Exhibit 6). The commanding officer was on the bridge and with him a Government 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.)