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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 from sealing by the United States authorities, was the period covered by the first two days in August, which followed the termination of the close season on the 31st of July, as fixed by the Award, and the three additional days which should be allowed for the vessel to reach the sealing grounds, if she had been released at Dutch Harbor on August 2nd.
The damages claimed by the claimants as set forth in the British Memorial are based upon "a reasonable estimate of the sums which the owners would have received as the proceeds of the voyage if it had been completed, together with interest thereon," and these sums include only the value of the estimated catch for the season if the schooner had not been seized, damages for detention of master and crew, the value of provisions and alleged injuries to guns. It does not appear that any damages were claimed for the detention of the ship during the period prior to the 1st of August, and it is clear that no pecuniary loss on account of any of the items mentioned was suffered by the detention of the ship, or the master and crew during that period, because it is evident from the surrounding circumstances that it was her purpose to occupy that period in proceeding to Behring Sea, and remaining in that vicinity until the open season began on the 1st of August. The value of the prospective catch for the whole season is estimated by the claimants at $9,080.86 on the basis of 950 skins at 39 shillings, 3 pence per skin.
It is shown by the documents that the average catch during the same season of other schooners similarly equipped was about 96 skins per boat or canoe, or 43 skins per man. The Wanderer had one boat and five canoes and fourteen men, which would make 576 skins reckoning by boats and canoes, or 602 skins reckoning by men, or striking a mean, 589 skins.
It has been shown that the average value of skins was about $8.60 per skin in 1894. Consequently on these figures the loss for the season may be estimated at about $5,000.
As damages are claimed in this case by the British Government not only for the owners but also for the officers and men who by the seizure were deprived of their earnings per skin, no deduction for wages should be made from the aforesaid value per skin.
The exact duration of the season is not stated, but it appears from the evidence that it extended through the month of August and the greater part of September, covering about forty days, so that the average value of the catch per day can be estimated at about $125. The evidence offered as a basis for this estimate is indefinite and inconclusive, but the Tribunal is of the opinion that taking into consideration the illegal detention of this vessel by the United States authorities for a period of nearly two months, it is justified in adopting a liberal estimate of the profits which she would have made on the five sealing days during which she might have hunted, if she had not been unlawfully detained by the United States until August 2nd. This Tribunal, therefore, considers that the damages for this detention should be fixed at $625 for her loss of profits, and $1,000 for the trouble occasioned by her illegal detention.
As to damages for the detention of the master, mate and men, there is no evidence sufficient to support these claims.
A sum of $120 is also claimed for injury to guns; but no evidence is afforded sufficient to support this item and it must be disallowed.
As to the sum of $126.50, the amount of certain provisions, which are said to have been supplied and purchased from H. M. S. Pheasant, there is no evidence sufficient to support it.
On the other hand, it appears from a letter dated August 5, 1894, addressed by the commanding officer of the American fleet to the Secretary of the Navy that some provisions valued at $21.95 supplied by the U. S. S. Concord to the Wanderer were not paid for. (United States Answer, Exhibit 13.) This sum then must be deducted from the total amount of damages to be paid by the United States Government.
As to interest:
The British Government in their oral argument admit that the 7 per cent interest claimed in their memorial must be reduced to 4 per cent in conformity with the provisions of the Terms of Submission.
It appears from a letter addressed by the Marquis of Salisbury to the British Ambassador in Washington on August 16, 1895, and handed by him to the Secretary of State on September 6, 1895, that this was the first presentation of a claim for compensation in this case. Therefore, in accordance with the Terms of Submission section IV, the Tribunal is of the opinion that interest should be allowed at 4 per cent from September 6, 1895, to April 26, 1912, on the $625 damages allowed for loss of profits less $21.95 for the provisions supplied by the U. S. S. Concord, namely on $603.05.
FOR THESE REASONS
The Tribunal decides that the Government of the United States shall pay to the Government of His Britannic Majesty for the claimants the sum of One thousand six hundred and three dollars and five cents ($1,603.05), with interest at four per cent (4%) on Six hundred and three dollars and five cents ($603.05) thereof, from September 6, 1895 to April 26, 1912.
The President of the Tribunal,
IN THE MATTER OF THE DAVID J. Adams
CLAIM No. 18
Decision rendered December 9, 1921
The United States Government claims from His Britannic Majesty's Government the sum of $8,037.96 with interest thereon from May 7, 1886, for loss resulting from the seizure of the schooner David J. Adams by the Canadian authorities in Digby Basin, Nova Scotia, on May 7, 1886, and the subsequent condemnation of the vessel by the Vice-Admiralty Court at Halifax on October 20, 1889.
I. As to the facts:
The David J. Adams, a fishing schooner (United States Memorial, p. 316), of 66 register tonnage, owned by Jesse Lewis, an American citizen of Gloucester, Massachusetts, United States of America; Alden Kinney, likewise an American citizen, being the master, sailed from Gloucester on or about April 10, 1886, for cod and halibut fishing on the Western Banks, lying to the southeast of Nova Scotia, in the North Atlantic Ocean, with special instructions to the master not to enter into Canadian ports. (United States Memorial, pp. 182, 185, 248.) After remaining on the Banks for about 12 days, the vessel proceeded to Eastport, Maine, United States of America, to obtain bait and other supplies, but being unable to procure at Eastport her needed supply of bait, she proceeded to Nova Scotia's shore, namely, to Annapolis Basin (United States Memorial, pp. 249, 309). On the morning of May 6, 1886, contrary to the owner's instructions, she entered Annapolis Basin, and when entering the Gut, she heard from another boat that there was bait at Bear River. (United States Memorial, p. 309.) Then she anchored above the mouth of Bear River (United States Memorial, pp. 269, 273, 288, 309). While the schooner was lying at anchor, the Master with some men of the crew went on shore, and addressing a Canadian fisherman, Samuel D. Ellis, he said that he wanted to know whether he had any bait, and on the affirmative answer of Ellis, he asked him whether he would sell it to him.
On the refusal of Ellis, because it was against the law and he could not sell to Americans, Kinney replied “that the schooner had been an American, but the English had bought her.” Having been told by Ellis that the price was $1.00 a barrel, he offered $1.25, and so he bought four barrels of herring which had been caught the same morning. (United States Memorial, p. 275.) The same Kinney addressed, likewise, a certain Robert Spurr; he asked him who owned the bait, and the said Robert Spurr, showing about four and a half barrels of bait in a boat anchored in a weir, said it belonged to his father, William Spurr, and to his partner, George Vroom. The master of the David J. Adams bought those four and a half barrels and engaged the next morning's catch at the rate of $1.00 per barrel. On May