Imágenes de páginas
PDF
EPUB

By that time the Tattler had returned to Gloucester and sailed again for Newfoundland, and on December 15th, owing to bad weather, she entered North Sydney for shelter. She was immediately seized on the charge of having, on her previous trip, shipped men without a license. Telegraphic correspondence took place between the owners and the Canadian authorities to ascertain the facts. But it was not until three days later, i.e., on December 18, 1905 (British Answer, Annex 53), that her release was obtained.

This Tribunal is of opinion that the British Government is responsible for that detention.

It is difficult to admit that a foreign ship may be seized for not having a certain document when the document has been refused to it by the very authorities who required that it should be obtained.

The British Government in their answer and argument contend that the captain of the schooner had never expressly informed the Canadian Collector of Customs that his vessel was a fishing vessel. But it is to be observed that this same ship, a few months before, sailing under exactly the same conditions and entering Canadian ports, had been treated as a fishing vessel, blacklisted and seized as one by the Canadian authorities.

That this fact could not have been and was not forgotten is shown by the aforesaid Canadian report of December 15, 1905 (British Answer, Annex 51).

In any case, it was admitted by the Canadian authorities (ibid.) that the officials were at that time insufficiently informed and uncertain as to the exact status of such vessels.

Such an error of judgment by the Canadian officials shall not result in prejudice to the foreign ship in question.

Under these circumstances the Tattler is entitled to an indemnity. As to the quantum:

The claim is for the alleged loss of 665 barrels of herring, valued at $2,100.00, which, it is contended, the vessel did not catch because of the three days' detention.

But no evidence is produced as to the certainty of this prospective catch. Nobody can say whether the vessel would have made such a catch, or whether it would have encountered some mishap of the sea.

Taking into consideration the trouble undergone by the owners, the period of the detention, and the tonnage, equipment and manning of the vessel, this Tribunal thinks that the sum of six hundred and thirty dollars ($630.00) is a just indemnity.

For These Reasons:

This Tribunal decides that the Government of His Britannic Majesty must pay to the Government of the United States the sum of six hundred

and thirty dollars ($630) for the seizure and detention of the American schooner Tattler on and between December 15 and 18, 1905. As to the interest, further decision will be given.

For the Tribunal :

(Signed) HENRY FROMAGEOT,

President.

IN THE MATTER OF THE COQUITLAM

CLAIM No. 29

Decision rendered December 18, 1920

This is a claim for $104,709.03 and interest presented by the Government of His Britannic Majesty on behalf of the owners of the cargo of the steamer COQUITLAM. It arises out of the seizure of that steamer on the 22nd of June, 1892, by the United States Cutter CORWIN in the Behring Sea.

The following facts are admitted: The COQUITLAM was a British ship owned by the Union Steamship Company of British Columbia and registered at the port of Vancouver, B. C.; her gross registered tonnage was 256.33; her net tonnage 165.67.

In the spring of 1892 a number of British schooners left Victoria, B. C., for the purpose of hunting seals in the North Pacific Ocean. The owners of these vessels belonged to an association known as the Pacific Sealers Association, and at the time they sailed from Victoria it was understood that a ship would be sent out in the following June to convey supplies to the schooners and receive in return their catch of seal skins.

In pursuance of this understanding, the Coquitlam was chartered on June 4, 1892, for a period of thirty days and fitted out at the port of Victoria by the Pacific Sealers Association. She sailed from that port for the North Pacific Ocean on June 8.

It had been arranged that the schooners should rendezvous at Marmot Island, or Tonki Bay, in Afognak Island, or at Port Etches, in Hinchinbrook Island.

The Coquitlam arrived at Tonki Bay on June 18, 1892, and next day at the mouth of the bay received from eight sealing schooners 5,835 seal skins and transferred to them the supplies provided. She left Tonki Bay for the second rendezvous at Port Etches and arrived there on June 22. The same day, before any transfer had been made to or from the schooners, she was seized in the harbor by the United States Revenue Cutter Corwin and taken to Sitka, where she was handed over to the Collector of Customs. No document or entry in the ship's log has been produced purporting to have been made at the time, and stating the circumstances of and reasons for the seizure.

On July 5, the United States District Attorney filed in the District Court of Alaska a libel of information against the Coquitlam, its appurte

nances and cargo, alleging that she had committed three separate offenses, the first under Sections 2867 and 2868 of the Revised Statutes of the United States by receiving or unloading merchandise and cargo in the waters and within four leagues of the coast of the United States; the second, under Section 3109 of the same Revised Statutes, by transferring merchandise within the said limits without having previously reported and received a permit; the third, under Sections 2807, 2808 and 2809, by having no manifest in writing of the cargo brought into an United States harbor.

By order of the District Court of the 17th of September, 1892, the vessel, cargo and appurtenances were released upon giving bonds for $87,660.95.

Upon the trial of the libel the Coquitlam, her cargo and appurtenances were condemned by a decree of the District Court, dated September 18, 1893. But on appeal, the United States Circuit Court of Appeals for the Ninth Circuit, on the 16th of November, 1896, reversed the decree of forfeiture made by the District Court and dismissed the libel.

This decision of the judicial authorities of the United States is binding upon the Government. It decides that what Sections 2867, 2868 of the Revised Statutes had in view were vessels bound to the United States and that there was no evidence that the Coquitlam was so bound; that Section 3109 contemplated vessels not merely arriving in the United States waters but intending to proceed further inland, either to unload or take on cargo, and that there was on the record no proof of any such intention; that the Sections 2807, 2808 and 2809 made liable to forfeiture only such merchandise as is consigned to the master, mate, officers or crew, and that it was not alleged in this case that any merchandise was so consigned.

The same decision goes on to say that there was no contention "that any injury has been done to the United States by the acts which are complained of in the libel, or that the United States has in any way been defrauded of revenue, or that there was any intention upon the part of the masters or owners of the vessels to evade the provisions of the revenue laws. The merchandise was not bound to the United States, nor was it consigned to any person, nor destined to be delivered at any place in the United States."

I. As to the liability:

It appears that shortly after the seizure of the vessel the British Government brought the matter to the attention of the United States Government, but no action was taken during the pendency of the judicial proceedings, the Coquitlam in the meantime having been released on bond. Subsequently in a letter of the Secretary of State to the British Ambassador dated December 21, 1904, the United States Government stated that the Department of State "is disposed to recognize liability and to recom

mend payment of a reasonable indemnity; but it will be necessary to have submitted to it the proofs showing the nature and extent of the damages suffered by the seizure, in order that the Department may consider the amount of the liability to make a definite recommendation." There is no evidence that the British Government ever complied with the request.

Before this Tribunal the United States Government denies all liability in this case.

It contends that the construction put upon the language of the statutes by the Circuit Court of Appeals is a very technical construction, while the construction upon which the officer acted in making the seizure had abundant support in decisions of the United States courts prior to this case, that it is clear, when this circumstance is taken in conjunction with the facts as disclosed, that the officer acted in the bona fide belief that the revenue laws of the United States had been infringed, and that for this belief there was probable cause.

The good faith and fair conduct of the officers of the Corwin are unquestionable, but though this may be taken into account as an explanation given by the same officers to their Government, it cannot operate to prevent their action being an error in judgment for which the Government of the United States is liable to a foreign Government.

Further, even supposing that the interpretation of the United States customs statutes may have given rise to some doubt, such a doubt cannot constitute a probable cause of seizure. Probable cause of seizure, as defined by Chief Justice Marshall, "imports a seizure made under circumstances which warrant suspicion" (Locke v. United States, 1813, VII Cranch 339, at p. 348). It implies the existence of certain facts which prima facie create a liability to seizure, facts which there is good reason to believe will be established though they are not yet actually proved. The doubt must be as to the existence of the fact, not as to its wrongful character.

Since in this case there was no doubt as to the circumstances of fact under which the seizure took place, but, according to the United States contention, some possible doubt as to the application of the statutes, their application was made by the United States naval authorities at the risk of their Government, and since it has been decided by the United States judicial authorities that this application was wrong, liability clearly arises. II. As to the consequences of the liability and amount of damages:

The result of inquiry made by the Tribunal of the agents of both Governments has been to show that a sum of $48,000 represents a proper amount to be paid by the Government of the United States as compensation for the seizure and its consequences.

III. As to interest:

It would not be equitable that interest should be allowed for the period prior to six months after the decision of the Circuit Court of Appeals on

November 16, 1896, i.e., prior to May 16, 1897. On the other hand, it has been shown that, on December 21, 1904, the United States Government declared that it was disposed to recommend payment on condition that the British Government should submit proof of the nature and extent of the damages. As has been said, there is no evidence that the British Government ever complied with that request.

Taking these circumstances into consideration, this Tribunal is of opinion that interest at 4% should be allowed from May 16, 1897, to December 21, 1904.

For These Reasons:

This Tribunal decides that the Government of the United States must pay to the Government of His Britannic Majesty the sum of $48,000 on behalf of the British subjects injured by the seizure of the S. S. Coquitlam in June, 1892, with interest at 4% from May 16, 1897, to December 21, 1904. For the Tribunal:

(Signed) HENRY FROMAGEOT, President.

« AnteriorContinuar »