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the former inhospitable statutes have ever been repealed. Their enforcement may be renewed at any moment." (British Answer, p. 11.)
During the period extending from 1877 to 1886, the fisheries articles of the Treaty of Washington (May 6, 1871; United States Memorial, p. 392), superseded the Treaty of 1818 as regards the prohibition of fishing and the tolerance for purchasing bait was continued.
On January 31st, 1885, the United States Government denounced the Washington convention, which was declared to be terminated on July 1st, 1885 (British Answer, p. 60), but in order not to disturb the fishing campaign of 1885 a modus vivendi was agreed upon by the two governments to end on January 1st, 1886, and the notes exchanged on that occasion show that the purchasing of bait was to continue during that time and that the Canadian authorities should abstain from impeding the local traffic incidental to fishing during the remainder of the season of 1885 (United States Memorial, pp. 397, 400). At the same time the Canadian Government proposed to the United States Government that a mixed commission should settle by agreement the various fishing difficulties existing between the two countries and the modus vivendi was proposed from the Canadian side, based on a favorable Presidential recommendation for that proposal. (United States Memorial, p. 401; British Answer, p. 62.)
The Senate of the United States did not agree to that proposition.
At the termination of the transitory régime which purported to avoid an "abrupt transition” in the existing state of things (United States Memorial, p. 399), in the early days of March, 1886, and before the beginning of the fishing campaign of 1886, the Canadian Government gave a public warning, dated March 5th, 1886 (United States Memorial, p. 367), reproducing the text of the 1818 Treaty. The same warning also called attention to the provisions of the Canadian Act, 1868, respecting fishing by foreign vessels, but not to the special provisions of the Act of 1819 concerning the entrance by the fishermen into the Canadian harbors. The British Government requested the United States Government to give also a public warning; but it answered that the proclamation of the President already given on January 31st, 1885, constituted a “full and formal public notification,” and it was not necessary to repeat it." (British Answer, pp. 62, 63.)
Such was the state of things when the owner of the David J. Adams was deprived of his vessel.
The United States Government contends that even assuming the existence of the prohibition of entering into Canadian harbors for purchasing bait, the seizure was, on the facts in this case, a violation of international law, because "as a matter of international law, where for a long continued period a Government has, either contrary to its laws or without having any laws in force covering the case, permitted to aliens a certain course of action, it cannot under the principles of international law, suddenly change that course and make it affect those aliens already engaged in forbidden transac
tions as the result of that course and deprive aliens of their property so acquired, without rendering themselves liable to an international reclamation.” (Oral Argument, p. 751; see also p. 47.)
But it seems difficult to apply such a principle based upon the bona fides of foreigners to this case where (a) the master of the schooner was not an alien already engaged in the country in a transaction suddenly forbidden; (b) the said master entered the Canadian harbor in violation of his own shipowner's instructions (United States Memorial, pp. 182, 185, 248); (c) the said master admitted that he knew the Canadian law (United States Memorial, pp. 254, 258); (d) the said master, in order to induce his vendor to sell him the bait, falsely declared that his vessel had been bought by Englishmen and was no more an American one; (e) the said master falsely declared that he entered the harbor to see his relatives (United States Memorial, pp. 253, 289); that he had no bait on board (United States Memorial, pp. 254, 263); that he strongly denied that he had bought bait (United States Memorial, pp. 254, 259); that the bait, which was afterwards revealed by the search, was ten days old (United States Memorial, pp. 254, 263, 289, 290, 302), and even after the seizure, he tried to deceive the United States Consul General by asserting under oath that he did not purchase or attempt to purchase bait while at anchor above Bear River (United States Memorial, pp. 46, 269, 273, 288, 309); (f) the said master took away the ship's papers (United States Memorial, p. 45), which afterwards he refused to give to the Canadian authorities (United States Memorial, p. 316); and where, as it is clearly shown, this master made desperate efforts to avoid the consequences of an act which he knew was illegal.
If, on the other hand, such an attitude of the master of the David J. Adams is compared with the public proclamations by the Canadian Government as well as by the United States Government (United States Memorial, p. 367; British Answer, pp. 62, 63), it does not appear that this was a case of a sudden and unexpected change of a government's conduct towards a foreigner suddenly surprised by that change.
Furthermore, and without interfering with what the Canadian authorities, acting under their municipal rights of jurisdiction, held to be the proper application of their legislation and the penalties thereunder, and without admitting any foundation in this case for a contended denial of justice, for the reasons above stated, this Tribunal cannot refrain from observing that if the unlawfulness of the entrance in the Canadian ports was effectively provided for in the Act of 1819, in aecordance with the Treaty of 1818, on the other hand the penalty of forfeiture for buying bait was enacted for the first time by the Act of 1886 (49 Vict., c. 114; United States Memorial, p. 386), posterior to the seizure of the David J. Adams.
Further, if the consequences resulting to the owner of the David J. Adams from the confiscation so pronounced, are considered, they appear as being particularly unfortunate and unmerited.
It results from the documents (United States Memorial, p. 181) that Jesse Lewis was a poor aged man, who was possessed of no means of any moment or value other than the said schooner, that his wife was an invalid, and that after his vessel was seized, he was compelled to go to sea to earn a living for himself and his wife (United States Memorial, p. 183). And further he appears as having been perfectly innocent of his master's conduct, whom he had expressly prohibited from entering Canadian ports, as it has been shown.
It is true, the proceedings which resulted in the confiscation of the David J. Adams constituted an actio in rem against the vessel and not against the owner; but finally all the consequences of the affair were inflicted on the owner and his abandonment of his right of appeal which might have succeeded as to the penalty, seems to have been partly due to his absence of pecuniary means.
Under these circumstances, this Tribunal thinks it is its duty to draw the special attention of His Britannic Majesty's Government to the loss so incurred by Jesse Lewis and it ventures to express the desire that that Government will consider favorably the allowance as an act of grace to the said Jesse Lewis or to his representatives, on account of his unfortunate misfortune, of adequate compensation for the loss of his vessel and the damages resulting therefrom. That compensation, this Tribunal earnestly urges upon the attention of the British and Canadian Government.
FOR THESE REASONS
The Tribunal decides that, with above recommendation, the claim presented by the United States Government in this case be disallowed.
The President of the Tribunal,
IN THE MATTER OF THE S. S. NEWCHWANG
CLAIM No. 21
Decision rendered December 9, 1921
This is a claim presented by His Majesty's Government for the sum of £4,271/4/8 with interest from August 27, 1902 (the date on which the claim first brought to the notice of the United States Government) for damage sustained by the China Navigation Co., Ltd., a British corporation, as the result of a collision which occurred on May 11, 1902, off the southern mouth of the Yangtse River between the British steamship Newchwang, owned by the said company, and the Saturn, a naval collier, owned and operated by the United States Government.
There is no contest about the ownership of either the Newchwang or the Saturn, the British nationality of the claimant, or the fact of the collision.
On July 11, 1902, an action for damages was brought by the United States Government against the China Navigation Co., Ltd., in His Britannic Majesty's Supreme Court of China and Corea in Admiralty. On August 16, 1902, an application for leave to enter a counter-claim was filed by the China Navigation Co., Ltd., but on August 20, 1902, an order was made refusing this application for lack of jurisdiction. On January 16, 1903, both parties being represented, the Court decided the case upon its merits, and delivered a judgment as follows: This Court doth decree and order that the S/S Newchwang being in no way to blame for the collision referred to in the Plaintiff's petition this suit be dismissed with costs to be taxed. (British Memorial, p. 51.)
The British Government contend that by reason of this judgment the liability of the United States for the damage and loss suffered by the China Navigation Co., in consequence of the collision is covered by the principle of res judicata and, therefore, not open to dispute.
It is unnecessary here to discuss the value of a plea of res judicata before an international tribunal of arbitration. It is a well established rule of law that the doctrine of res judicata applies only where there is identity of the parties and of the question at issue. The only matter before His Britannic Majesty's Supreme Court was the liability of the China Navigation Co., Ltd., as owners of the Newchwang, whereas the question submitted to this Tribunal is the liability of the United States Government as owners of the Saturn. Whatever, therefore, be the connection in fact between the two questions, they are not identical. Further, it is impossible to say that the question of the liability of the United States is concluded by the decision of His Britannic Majesty's Court, when that Court, on the contrary, held that it had no jurisdiction to deal with that question.
In these circumstances it is for this Tribunal to decide whether the United States Government is liable to pay compensation for the said collision. For this purpose it is authorized by Article 5 of the Pecuniary Claims Convention to consider such evidence and information as may be furnished by either Government.
Although the decision of His Majesty's Supreme Court is not in any sense res judicata in this case, and although the findings of the Court as to the facts upon which liability depends are not binding upon this Tribunal, yet they are evidence of the conclusions reached by a competent municipal tribunal. But, in considering these conclusions, and the evidence upon which they were based, it must be remembered firstly, that there the burden of proof was on the Saturn, while before this Tribunal it is on the Newchwang; and secondly, that evidence has been put before this Tribunal which was not before that Court. In behalf of the United States, the most important fresh evidence is the report of the proceedings of the United States Naval Board of Investigation, dated May 23, 1902, within two weeks after the collision, which laid the blame for the collision on the Newchwang. The only evidence presented on the part of Great Britain which was not before the trial court, consists: (a) of certain bills introduced into the United States Senate providing for the reference of this claim to the Court of Claims, to determine, subject to certain conditions whether any damages should be paid, and (b) a copy of a letter dated January 30, 1907, addressed by the Secretary of the Navy to the Chairman of the Committee on Claims of the House of Representatives. His Majesty's Government contend that this letter contains an admission of liability which estops the United States from denying responsibility. It appears, however, from a statement made by the Counsel for Great Britain on the oral argument, that this letter was merely a personal or private recommendation to the Chairman of the Committee on Claims, and has never been officially published, and for this reason in the opinion of the Tribunal it cannot be regarded as an admission of liability on the part of the United States. As to the bills, it was also stated in the oral argument that none of them were voted upon in the Senate, nor were they even favorably reported upon by the Committee on Claims, to which they were referred.
Dealing now with the merits.
1. As to the facts:
It is admitted on both sides that the night was clear and the water smooth and that there was plenty of searoom; it is shown that the regulation lights were burning brightly and the regular watches kept; the force of the tide is not in dispute, and under all these circumstances it is difficult to understand how, with the exercise of ordinary care and skill, the collision occurred.
Notwithstanding a considerable conflict of evidence, and a wide variance between the Preliminary Acts of the two ships and the oral evidence of those on board them, the following facts are clearly established.
On May 11, 1902, at about eleven P.m., the British S/S Newchwang 894 tons gross tonnage was proceeding up the Chinese coast from Amoy to Shanghai and had passed through Steep Island Pass, steering North 2° West Magnetic. Her speed was 10-12 knots. She sighted at a distance of six miles and about two points on her port bow the masthead light of another steamer, which afterwards proved to be the Saturn. She held on her course.
At the same time, the United States collier Saturn, bound from Shanghai to Cavite, Philippine Islands had passed Bonham Straits and Elgar Island; her speed was 10-12 knots and she was steering South East. She reported no light at all at the time when she herself was sighted by the Newchwang.
However, about twenty minutes later the Saturn passed another steamer, the Hoihow which was going north in front of and in the same course as the Newchwang. The Saturn ported her helm and came to starboard in accordance with the Rules of the Road, but so tardily that the captain of the Hoihow testified that the two vessels passed at two ships' length apart.
After so passing the Hoihow the Saturn resumed her course and it was