pursue fur seals in any manner whatever from the first of May to the 31st of July within the zone included between latitude 35° north and the Behring Straits, and eastward of longitude 180°.

Furthermore the same Regulations provide:

Article 6. 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.

To comply with the Award and Regulations, an Act of Congress was passed in the United States on April 6, 1894. This Act provided:

Sec. 10. if any licensed vessel shall be found in the waters to which this Act applies, having on board apparatus or implements suitable for taking seals, but forbidden then and there to be used, it shall be presumed that the vessel in the one case and the apparatus or implements in the other was or were used in violation of this Act until it is otherwise sufficiently proved.

On April 18, 1894, instructions were given to the United States naval authorities, according to which

Par. 6. Any vessel or person

having on board or in their

possession apparatus or implements suitable for taking seal will order seized. (United States Answer, Exhibit 20.)

you

On their side the British Government passed an Act dated April 23, 1894, providing:

Sec. 1. The provisions of the Behring Sea Arbitration Award

shall have effect as if those provisions

(United States Answer, Exhibit 17.)

The British Act further provides:

were enacted by this Act.

Sec. 3. par. 3. 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, Exhibit 17.)

As may be observed the United States Act and the instructions to its naval authorities did not follow the wording of the Award Regulations exactly, and Her Majesty's Government drew attention to the variance, in a letter addressed by their Ambassador in Washington to the Secretary of State on April 30, 1894:

I am directed to draw your attention to paragraph 6 of the draft instructions, so far as it relates to British vessels. The paragraph requires modification in order to bring it, as regards the powers to be exercised by United States cruisers over British vessels, within the limits prescribed by the British order in Council conferring such powers.

The Earl of Kimberly desires me to state to you that the order in council which is about to be issued to empower United States cruisers to seize

British vessels will only authorize them to make seizures of vessels contravening the provisions of the British act of Parliament, or, in other words, the provisions of the award.

There is no clause in the British act corresponding with section 10 of the United States act of Congress. United States cruisers can not therefore seize British vessels merely for having on board, while within the area of the award and during the close season, implements suitable for taking seal. (United States Answer, Exhibit 21.)

Meanwhile and on April 30, 1894, a British Order in Council was issued providing:

Par. 1. 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 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. States Answer, Exhibit 18.)

(United

It appears from the documents that an exchange of views took place between the two Governments in order to arrive at some agreement as to the regulations. On May 4, 1894, an agreement was reached. The previous United States instructions, dated April 18, 1894, were revoked (53 Cong. 2d Sess. Senate Ex. Doc. No. 67, p. 228); a memorandum of the agreement regulations was exchanged (Ibid., p. 120; United States Answer, Exhibit 23), and those regulations were sent by the United States Government to their naval officers (Ibid., pp. 126, 226, 228). From these new regulations of May 4, 1894, the provision concerning the possession of arms was omitted. In these circumstances, the legal position in the sealing zone at the time of the seizure of the Wanderer may be summarized as follows: The provisions of the Award in their strict meaning, and those provisions only, had been agreed upon as binding upon the vessels, citizens and subjects of the two countries; and it was only for contravention of those provisions that the United States cruisers were authorized to seize British vessels.

Such being the state of the law, the question to be determined here is whether or not the Wanderer was contravening the aforesaid provisions so as to justify her seizure.

The declaration of seizure does not allege that the Wanderer was killing or pursuing or had killed or pursued fur seals within the prohibited time or zone, but that she was discovered to have certain arms and ammunition unsealed and hidden on board. The offense alleged was the possession of such arms and ammunition (United States Answer, Exhibit 5). The same

charge is brought by the notice of the declaration of seizure "

whereas in thus having concealed arms and ammunition on board, you were acting in contravention (United States Answer, Exhibit 6.) In the report of the United States authorities, a report of a merely domestic character, the same view is taken. It is explained by the repeated references to the above quoted Section 10 of the United States Act of April 6, 1894.

Inasmuch as it was only use and not the mere possession of arms and ammunition which was prohibited by the Paris Award and Regulations, it is impossible to say that the Wanderer was acting in contravention of them.

Even if it be admitted that in case of contravention the United States officers were empowered to seize on behalf of Her Majesty's Government under the British Act, it is clear that such a delegation of power only gave them authority to act within the limits of that Act, and as the seizure was made for a reason not provided for by that Act, it is impossible to say that in this case they were exercising that delegated authority.

The bona fides of the United States naval officers is not questioned. It is evident that the provisions of section 10 of the Act of Congress constituted a likely cause of error. But the United States Government is responsible for that section, and liable for the errors of judgment committed by its agents.

Further, contrary to the contention of the United States Answer, it must be observed that Her Majesty's Government were under no international or legal duty to proceed against the ship through their Admiralty courts, and not to release her by a merely administrative decision. Under section 103 of the British Merchant Shipping Act, 1854 (United States Answer, p. 65), it is only when a ship has become subject to forfeiture that she may be seized and brought for adjudication before the Court, and as the ship in this case was not considered subject to forfeiture, the aforesaid provision had no application.

The United States Government points out that the Government of Her Britannic Majesty were held responsible by Her Majesty's Courts in certain cases of seizures made by the United States authorities under the Paris Award Act, even when those seizures were held to be unjustified in the circumstances. But it must be observed that in those cases the seizure was for acts, which if they had been proved would have constituted a contravention justifying the seizure; in this case on the contrary the seizure was made for an act, namely, the possession of arms, which did not constitute any contravention justifying the seizure. In other words, in the aforesaid cases, it was not contested that the United States authorities acted within the limits of the powers entrusted to them, but it was decided that their action was not justified by the facts.

The contention that the British Government is liable for the detention of the Wanderer from and after July 1, 1894, the date when she arrived at

Unalaska, until she was delivered to the Pheasant, because of the delay of that vessel in reaching that port, is not well founded. According to the power delegated to them under the British Act and Order in Council, the United States naval authorities in case of seizure had either to bring the vessel before a British court or to deliver her to the British naval authorities. Here the United States officers neither brought the Wanderer before a British court, nor delivered her to a British naval authority, before the 2nd of August.

It has been contended by the United States that although the Wanderer was sent to Dutch Harbor, Unalaska, about 500 miles to the west of St. Paul, that is to say in exactly the opposite direction from where a British court could be found, nevertheless, it is shown by a letter of the commanding officer of the American fleet, dated June 13, 1894, that he had been informed that a British man-of-war would be sent to Unalaska about the time the Wanderer arrived there. As to this contention, it must be observed that the said letter is dated three days after the Wanderer was sent to Unalaska, which was on June 10th. Furthermore, it appears from a letter of the commanding officer of the United States fleet addressed to the Secretary of State on May 28, 1894, i. e., twelve days before the seizure, that that officer having been informed by H. M. S. Pheasant that she was the British vessel ordered to cooperate in carrying out the concurrent regulations, had himself suggested to the commanding officer of the Pheasant that he should make his headquarters at Sitka until June 12th, at St. Paul, Kadiak Island, until June 30th, and after that at Unalaska "as this seems to be the best arrangement that could be made for turning over British sealers that may be seized. ." This arrangement was communicated to the American fleet on the same day by a circular dated May 28, 1894 (Ex. Doc., 264). Consequently there is nothing to show that on June 10th, the date when the Wanderer was sent to Unalaska, the United States naval authorities believed the British man-of-war would be at Unalaska at the date of the schooner's arrival.

There still remains to be considered the question of the liability of the United States for damages arising after the Wanderer was delivered on August 2nd (United States Answer, Exhibit 13) to Her Britannic Majesty's ship Pheasant at Dutch Harbor, Unalaska.

The above mentioned order-in-council of April 30, 1894, which authorized American officers to seize British sealers for contravention of the Behring Sea Award Act of 1894, provides that vessels seized by such officers either may be brought for adjudication before a British Court of Admiralty, as specified in section 103 of the Merchant Shipping Act of 1854, or may be delivered "to any such British officer as is mentioned in the said section for the purpose of being dealt with pursuant to the recited Act." In this case the latter course was followed, and the Wanderer was delivered to the commander of the Pheasant on August 2nd, and was ordered by him to proceed

forthwith to Victoria, B. C., where there was a British Court having authority to adjudicate in the matter. Upon the arrival of the Wanderer there, the customs officers declined to take proceedings against her, and the Admiral in charge of Her Britannic Majesty's ships ordered that she be released from custody.

This Tribunal having held that Her Britannic Majesty's Government were under no international or legal duty to proceed against this ship, and that the release of the ship by administrative action was justified under section 103 of the Merchant Shipping Act of 1854, it follows that the British authorities, rather than the United States authorities, were responsible for the detention of the vessel after she was delivered to their charge on August 2nd. The authority conferred by the above-mentioned order-in-council upon the American officer who seized this vessel was to exercise "the like powers under the Behring Sea Award Act of 1894 as may be exercised by a commissioned officer of Her Majesty in relation to a British ship." In other words, the powers of the British officer and the American officer in relation to the detention of this ship were identical, and consequently the Tribunal having held that the detention of the vessel by the American officer was not justified, must likewise hold that her detention by the British officer was equally unjustified. Inasmuch as the British officer was at liberty to release the vessel, and as the United States is not responsible for her unjustifiable detention by a British officer, the United States is responsible only for damages for detaining the vessel until the 2nd of August.

II. As to the consequences of liability and the amount of damages:

The provisions of Article 2 of the Award of the Fur Seal Arbitration Tribunal of 1893, which was adopted by the legislative enactment by the Government of Great Britain and of the United States in 1894, are as follows:

The two Governments shall forbid their citizens and subjects, respectively, to kill, capture, or pursue in any manner whatever, during the season extending, each year, from the 1st of May to the 31st of July, both inclusive, the fur seals on the high sea, in the part of the Pacific Ocean, inclusive of the Behring Sea, which is situated to the north of the 35th degree of north latitude, and eastward of the 180th degree of longitude from Greenwich. (United States Answer, Exhibit 16.)

It appears, therefore, that from the 10th of June, when this vessel was seized, until the 31st of July, she was prohibited by these provisions from sealing operations in the North Pacific within the limits described, which were fixed by the Award of the Arbitration Tribunal as the limits which included the entire area within which fur sealing might profitably be engaged in during that period, and she was within those limits when seized. It follows that during the part of her detention for which the United States is responsible, the only period during which she was unlawfully prevented