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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,
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 was profitable, though a request by this Tribunal for some detailed information as to these profits has not been satisfied.
There has been adduced no evidence sufficient to establish that had there been no interference by the United Stats naval authorities the vessels would have made more or any profit from sea otter hunting in Behring Sea. It is admitted by the counsel for Great Britain that nothing is so uncertain as the profits of such a venture.
The amount of the demands is based merely on statements made by the interested parties themselves or on statistics and data which afford no sufficient evidence as to the sea otters caught by other British schooners, similarly equipped and manned, hunting during the same period and in the same localities as the three schooners in question intended to hunt.
In these circumstances, this Tribunal is only able to take into consideration the fact of the prohibition itself, by which in violation of the liberty of the high seas the vessels were interfered with in pursuing a lawful, and, it may be, profitable enterprise; but nobody can say whether that enterprise would have been more or less profitable than the one in which they actually engaged on the Russian coast or whether they would have encountered some mishap of the sea. In any case, the result was that the expenses incurred in engaging crews specially trained for this enterprise was unprofitable and wasted.
This Tribunal is of opinion that the following sums will be just and sufficient indemnities for each of the three vessels, viz. for the Jessie, $544 for her special expenses and $1,000 for the trouble occasioned by the illegal interference; for the Thomas F. Bayard, $750 for her special expenses and $1,000 for the trouble occasioned by the illegal interference; and for the Pescawha, $500 for her special expenses and $1,000 for the trouble occasioned by the illegal interference.
As to interest, there is no evidence that any claim was ever presented to the Government of the United States before being entered on the Schedule annexed to the Special Agreement, and according to the terms of submission, section four, interest may only be allowed from the date on which any claim has been brought to the notice of the defendant party.
FOR THESE REASONS:
This Tribunal decides that the Government of the United States shall pay to the Government of His Britannic Majesty, the sum of One thousand five hundred and forty-four dollars ($1,544.) on behalf of the Schooner Jessie, the sum of One thousand seven hundred and fifty dollars ($1,750.) on behalf of the Schooner Thomas F. Bayard, and the sum of One thousand five hundred dollars ($1,500.) on behalf of the Schooner Pescawha, in each case, without interest. The President of the Tribunal,
(Signed) HENRI FROMAGEOT.
Belgian Council of Prizes, 1919
In case No. 53, sailing vessel Agiena, the Council renders the following decision :
In view of the introductory petition presented by the Commissioner of the Government requesting that the capture of the sailing vessel Agiena, formerly belonging to H. J. Hill of Rotterdam, be declared legal and valid for the benefit of the Belgian State;
In view of the other documents incorporated into the pleadings;
Whereas, M. Bauss, attorney, enrolled in the list of attorneys of Antwerp, has presented himself for the following second party: [List of English underwriters omitted.]
Having heard the Commissioner of the Government, Van Gindertaelen, as well as the said M. Bauss, in their respective pleas and motions;
Whereas, the English underwriters, listed under the letters A, B, C, D, E, present themselves as having insured the ship Agiena against risks of war and total loss, and as being subrogated in all the rights of the Dutch owner, M. H. J. Hill, in consideration of having indemnified him for the said total loss;
Whereas, their intervention in the case is admissible;
Whereas, it is otherwise in the case of the English underwriters listed under the letters F to P who availed themselves of the subrogation in the rights of the Eerste Hollandsche Vensterglasfabriek relating to the insured merchandise;
Whereas, in fact the Commissioner of the Government sues only for the validation of the capture of the ship, and whereas, the cargo which has not been made the object of any capture on the part of the Belgian State, and over which no rightful claim arises, cannot give occasion for a decision by the Council ;
Whereas, the intervention of the said English underwriters is henceforth nonadmissible;
Whereas, public international law is the sum total of the rules that have emanated from natural reason, consecrated by customs and treaties, which fixes the mutual relations of states in the general and public interest;
Whereas, if the natural law of nations, which finds its source in reason and conscience, should inspire positive law as an ideal toward which it must strive, it has no immediate and practical value and it cannot be reverted to except in default of treaties or usages resulting from the common consent of states; whereas, the sources of the positive law of nations can be summed up under the following two general heads: principal and
1 Translated from the Moniteur Belge, 1920, p. 405.