Instruction to Lord Gough.
[Handed by Lord Gough to Mr. Olney, September 6, 1895.]
My Lord: The Earl of Kimberley, in his telegram, No. 23, of the 9th of May, requested Sir J. Pauncefote to inform Mr. Gresham that Her Majesty’s Government were unwilling to renew the agreement with the United States of the 12th May, 1894, relative to the sealing up of arms on board sealers during the close season in Bering Sea, because the possession of arms was not contrary to the award of the Paris Tribunal of Arbitration, and because, as proved by the seizures of the Wanderer and Favourite, the agreement had not in practice worked for the protection of British sealers from unnecessary interference.
His excellency was also requested to remind Mr. Gresham that United States naval officers have no right to seize British sealing vessels, except under the order in council for offenses against the British act of Parliament which embodies the award regulations.
The circumstances in connection with the seizures of the Wanderer and Favourite, above referred to, have been most carefully considered, after some delay occasioned by the necessity of obtaining full information, including reports from Admiral Stephenson, the commander in chief on the North American station.
The Wanderer, while in the waters affected by the award, and during the close season, was boarded and the master warned by an officer from the U. S. S. Yorktown of the provisions of the award act.
A certain quantity of arms and ammunition was sealed up, and the master signed a statement that the firearms, etc., then produced were all that belonged to the vessel or to any person attached to her. The seal skins on board were counted, and the number amounted to 400.
On the same day the vessel was again boarded while within the award area by an officer from the U. S. S. Concord. The seals placed on the arms in the morning were found to be intact, and the number of seal skins on board corresponded with the number counted by the officer of the Yorktown. Further search was, however, made, and in the extreme forward part of the ship a shotgun, with 39 cartridges, were found, which the mate said belonged to him.
The vessel was thereupon towed to St. Paul, Kadiak Island, formally seized, and sent thence with a prize crew to Unalaska, and handed over to Her Majesty’s ship Pheasant.
[Page 663]The grounds for the seizure, as given by the commander of the Concord, were “the possession of an unsealed gun and ammunition in contravention of the Bering Sea award act, 1894, clause 1, paragraph 2, and clause 3, paragraph 2, as well as of section 10 of the President’s proclamation.”
The master protested, one of his grounds of protest being that the gun and ammunition were the private property of the mate, and had been hidden without his orders or knowledge. The master also said that he was making direct for St. Paul, a port in United States territory.
Admiral Stephenson, the commander in chief on the North American station, having, after due consideration, come to the conclusion that the vessel could not be successfully prosecuted, decided not to take proceedings against her, and directed that she should be released.
The vessel, however, was unable to complete her voyage, and the master, on behalf of those interested in her, advanced a claim to the amount of the market value of 1,000 seal skins, $250 on account of damage done to guns through sealing up, and $120.50 paid for provisions, with interest to be added.
The Favourite was seized by the United States war vessel Mohican while sealing in Bering Sea during the open season. There were no firearms on board, with the exception of one rocket gun, to be used for signaling purposes, and this appeared on the ship’s manifest, signed by the collector of customs at Victoria. While the schooner’s papers were under examination by an officer of the Mohican the master produced the signaling gun and placed it on the table before the examining officer, who expressed himself satisfied, and entered the following in the schooner’s log:
Boarded the Favourite. Found log correctly kept. No violation of regulations, as per log. One shotgun unsealed.
The Mohican steamed off about 2 miles, but returned. The same officer boarded the Favourite again and ordered the master to take the schooner’s papers and the signal gun on board the Mohican. There he was informed that his vessel was seized for having firearms on board.
Lieutenant Wadhams, who was in command of the Mohican, stated the grounds for seizure to be that the vessel had on board a double-barrel shotgun, which was found upon trial to carry No. 10 gauge cartridges, and to shoot accurately at least 50 yards, and that the possession of this shotgun was in contravention of article 6 of the Paris award and of the United States act of Congress.
The gun in question was carried for the sole purpose of firing rockets as night signals. It was old, barely 11 inches long in the barrels, with a pistol-handle grip of 9 inches, and quite unfit for killing seals. Not only was the gun mentioned in the ship’s manifest, but the master stated that he was verbally authorized by the custom-house official at Kyuquot, where, previous to the opening of the fishery season, his fishing implements had been sealed up, to carry it and rockets unsealed. Moreover, Commander Hunter Blair, of Her Majesty’s ship Pheasant, and Captain Clark, the commander of the Mohican, had agreed to authorize sealing vessels to carry the means of signaling, and the former stated that had application been made to him he would certainly have permitted the Favourite to carry the weapon on account of which she was seized. No cartridges or shot of any kind were found on the vessel.
In spite of the master’s protest, a prize crew was placed on board the steamer, by which she was taken to Unalaska, and there handed over to the commander of Her Majesty’s ship Pheasant, by whom she was [Page 664] ordered to proceed to Victoria and report to the collector of customs. The latter applied to the admiral for instructions, considering that he was not justified, under the Bering Sea award act, 1894, in taking any action against the vessel; and the admiral replied that, in his opinion, there was no ground for a prosecution, and, therefore, requested that the schooner should be released.
The master has preferred a claim for $22,430, the amount at which he estimates the loss incurred by the interruption of his voyage.
It thus appears, both from the information obtained by Her Majesty’s Government and from the statements of the United States naval officers themselves, that no evidence existed of any unlawful fishing operation on the part of either of these vessels.
Had the master of the Wanderer intended to violate the regulations, he would presumably not have limited his preparations to a single gun and a few cartridges; and it seems highly improbable that, after having been boarded and having had the skins on his vessel counted, he would have run the risk of being discovered with fresh skins on board.
With regard to the Favourite, the evidence seems conclusive that the gun found on board was intended solely for signaling purposes, and that it was not suitable for killing seals. The fact that no cartridges or shot of any kind were found on the vessel affords presumption almost amounting to proof that this view is correct.
It must also be remembered, in considering the case of the Wanderer, that the arrangement for the sealing up of fishing implements was not obligatory, but was to operate only on the application of the master of a vessel traversing Bering Sea for any legitimate purpose during the close season as a protection to the vessel against interference by any cruiser in the said waters.
The Favourite was seized during the open season, when the agreement was not in force, though the entry made in her log by the United States officer seems to indicate that he was not cognizant of this fact.
The statements made by the United States officers of the grounds of seizure show, moreover, that in both cases they relied upon that part of section 10 of the United States act of Congress which reads:
Or if any licensed vessel shall be found in 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 proved.
That section has the obvious effect that without affecting directly to enlarge the obligation which the award imposes upon sealing vessels, it creates an artificial presumption of guilt springing from facts which otherwise might not be evidence of guilt at all, and thereby indirectly makes the award weigh heavier on these vessels.
It is not, however, necessary to discuss the provisions of the act of Congress. Whether an offense against that act was committed or not by either the Wanderer or the Favourite, a point which seems open to doubt, especially in the case of the Favourite, the officers of the United States cruisers were not empowered to seize the vessels except under the order in council for offenses against the British act of Parliament which embodies the award regulations. Those regulations do not prohibit the possession of firearms, nor do the Bering Sea award act and order in council of 1894 contain any provision corresponding to that in article 10 of the act of Congress. A duly authorized officer of the United States is warranted in seizing a British vessel if he believes, or has reasonable grounds for believing, that the British law has been violated. [Page 665] But he is not warranted in seizing her if there are no reasonable grounds for that belief, nor is he warranted in applying to British vessels the doctrine of presumptive guilt which is contained in section 10 of the United States act.
The seizure of both the Wanderer and the Favourite was grounded on what, even if it was an offense against the United States law, was not an offense against British law. For this reason Her Majesty’s Government considers that the officers of the United States cruisers were not justified in seizing the vessels, and they feel bound to present to the United States Government the claims for compensation which have been made by the owners, and to request that they may receive the consideration to which they are entitled.
You will read and give a copy of this dispatch to the Secretary of State.
I am, etc.,