Papers relating to the foreign relations of the United States, 1929, Volume II

811.114 I’m Alone/111

The Secretary of State to the Canadian Minister (Massey)

Washington, April 17, 1929.

Sir: I have the honor to acknowledge the receipt of your note No. 52, of April 9, 1929, concerning the sinking of the Canadian schooner I’m Alone by the United States Coast Guard on March 22, last.

Before proceeding to a discussion of this case, I should like to assure you that this Government is profoundly grateful to your Government for the measure of cooperation which it has received from your officials in the matter of the prevention of smuggling into the United States. The Convention which was signed on June 6, 1924, to suppress smuggling, has been helpful, and your officials have faithfully discharged their obligations under this Convention. Canada has, as pointed out in your note, enacted a number of laws the effect of which has been to render it more difficult for smugglers to use Canadian ports in their efforts illegally to introduce liquor into the United States. The Government of the United States is deeply grateful to your Government for this friendly interest and valuable cooperation which has thus been manifested.

With respect to the case of the I’m Alone, may I point out that I recognize fully the position of your Government in feeling the necessity of making representations even though these representations are made in the case of a vessel which has for several years openly violated the laws of the United States and even though the Captain of the vessel has boasted of this fact. There is not in the mind of this Government the slightest question as to the propriety of representations in this and similar cases. This Government recognizes that in cases of this nature the Canadian Government is interested primarily in the principles of international law involved, and it is also an established principle of law that every alleged offender has the right to the most competent advocate of his case.

It is the contention of this Government that the I’m Alone was sighted and commanded to heave to at a point not more than 10.8 miles from the coast of the United States; that this distance is less than the distance which could be traversed by the vessel in one hour; that the master of the I’m Alone refused to obey the repeated commands of the Coast Guard officers to heave to for boarding and examination; and that, under the doctrine of “Hot Pursuit”, the Coast Guard vessels possessed authority to follow the I’m Alone beyond the distance of one hour’s sailing stipulated in the Treaty between the United States and Great Britain of January 23, 1924, and to compel it to comply with the orders of the Coast Guard officers to stop.

A detailed report in regard to this incident has been received from the Secretary of the Treasury who, as you know, has jurisdiction over the Coast Guard. In preparing this report the Coast Guard officers received the cooperation of a Special Agent of the Customs Bureau. Moreover, an assistant to the Attorney General of the United States, who went to New Orleans for the purpose, has carefully checked all of the information contained in this report.

According to this exhaustive report, the I’m Alone was first hailed and commanded to stop when at a distance of not more than 10.8 miles from the nearest land at 6:10 A.M. on March 20, 1929. The calculations of the commanding officer of the Wolcott have been carefully checked by expert navigating officers of the Coast Guard and have been found to be correct. I wish here to invite your especial attention to a circumstance wherein a wholly disinterested observer has furnished conclusive evidence which corroborates beyond question the testimony of the commanding officer of the Wolcott in his determination of the position of the I’m Alone at the time the chase began. The American tank steamer Hadnot, bound from Charleston to Galveston, had passed Trinity Shoals Gas and Whistling Buoy No. 4 close aboard about 8 A.M. that day. On sighting the Hadnot while the pursuit was in progress, the commanding officer of the Wolcott, with rare presence of mind, decided to check his own position with that of this intermediary vessel which he knew must have known its own position accurately because of its departure from this prominent and well known aid to navigation shortly before. At the time the Hadnot was spoken by the Wolcott about 8:20 A.M., it was five miles to the westward of the buoy. This fact, together with the Wolcott’s ship’s log, has enabled the officers of the Coast Guard reviewing the case definitely to work back the navigation data of the Wolcott and to fix the position of the I’m Alone, at the beginning of the pursuit, with certainty. This computation results in an agreement with the statement of the commanding officer of the Wolcott that the I’m Alone was not at a greater distance than 10.8 miles from the shore line of the United States. The master of the Hadnot furnished an affidavit to the Headquarters of the Coast Guard recounting this occurrence. Impartial evidence such as this, corroborating as it does the precise, scientific calculations of the commanding officer of the Wolcott, cannot but negative the statement of his position given by the master of the I’m Alone.

It may be added that all of the data respecting the position of the I’m Alone at the time the pursuit began have been carefully checked by a captain in the Coast Guard, who is a graduate of the United States Naval Academy and who has had forty years of nautical experience. The calculations of the master of the I’m Alone are not only based upon less scientific methods but are also unchecked and unsupported by other evidence.

With further relation to the distance of the I’m Alone from shore when first commanded to heave to, may I point out that the action of Captain Randell in refusing to comply with this order would seem to contradict his statement that he was beyond treaty limits. If, as Captain Randell alleges, he believed that his vessel was beyond one hour’s sailing distance from shore when first hailed, he must have known that his vesssel could not legally be seized by the Coast Guard vessel and that he had nothing whatever to fear in complying with the command to stop and be examined. Instead of complying with this order, Captain Randell saw fit to flee and thus to defy a Coast Guard vessel of the United States engaged in the lawful exercise of its police powers, and he later allowed his vessel to be shelled and sunk rather than stop. It would thus appear that by his very action in fleeing and thus placing in jeopardy the safety of his ship and the lives of his crew, Captain Randell admitted his own belief that his vessel was within Treaty limits and thus subject to seizure.

As regards the speed of the I’m Alone, I may say that, according to my information, this vessel was originally built as a fishing craft similar in type to the so-called “Gloucester” fishing vessels. These vessels are designed to transport fish over long distances in as short a time as possible in order that the cargo may be delivered to market in good condition. It appears that the I’m Alone was equipped with two 100 h. p. engines, in addition to full sails. Mr. Edward C. Hobbs, engineer of the I’m Alone, testified under oath at New Orleans on March 24 that the speed of the I’m Alone, with the engines alone, was 8 to 8½ knots. It is well known that vessels of the type of the I’m Alone have frequently attained speeds of more than 14 knots. The I’m Alone was well known to officers of the Coast Guard. For a period of more than four years, it successfully eluded the patrol vessels of that Service chiefly because of its superior speed.

On March 27, 1929, Mr. Melville L. Matson, of the Coast Guard, testified that on the evening of November 30, 1928, while he was in command of the Coast Guard Cutter Wolcott, he pursued the I’m Alone off the coast of Louisiana and that the latter vessel, because of its superior speed, was able to escape. Mr. Matson testified that during this chase the Wolcott’s speed was 10½ knots and that, since the I’m Alone out-sailed his vessel, it is his opinion that the speed of the I’m Alone was not less than 12 knots.

According to the records of the Coast Guard, at 10 a.m. on July 6, 1926, the I’m Alone was being trailed by the Coast Guard vessel Acushnet off Newport, Rhode Island. It suddenly put on full speed (power and sail) and began to draw away from the Acushnet. The latter vessel put on full speed and made every possible effort to keep up with the I’m Alone but by 10:30 a.m. the latter had placed such a distance between itself and the Acushnet that further pursuit was fruitless. The Acushnet has steam engines designed to develop 1000 h. p. and, according to its log, developed during this chase a speed of 12.6 knots. The Coast Guard authorities, who have carefully checked the computations of the Acushnet with respect to its speed, estimate that on this occasion the maximum speed of the I’m Alone must have been not less than 14.1 knots.

At 7:35 p.m. October 13, 1926, the U. S. S. Ossipee was trailing the British schooner I’m Alone off the New England coast. The sea was smooth and the wind was south by east, force 5 Beaufort scale. The I’m Alone was heading approximately 80 degrees magnetic when it suddenly took full advantage of the prevailing wind and began to make full speed. The Ossipee is a high powered vessel and it was compelled to attain its maximum speed of 13.5 knots to keep the fleeing I’m Alone in sight. The commanding officer of the Coast Guard vessel, Commander Stanley B. Parker, reported at the time in his official cruise report that 13 knots would have been insufficient to keep the I’m Alone in sight and that the speed of 13.5 knots barely permitted him to regain his former position close astern of the schooner.

From the foregoing, it would seem to be established that the I’m Alone when first commanded to heave to was within one hour’s sailing of the United States. When the master of the I’m Alone refused to obey the repeated commands to heave to, the Wolcott, after firing warning shots across the bow, fired through the sails and rigging of the schooner, the Commanding Officer of the Wolcott continuing his demand that the I’m Alone heave to. Since the master of the I’m Alone still refused to stop, it would have been difficult, and even dangerous, for an attempt to be made by the Coast Guard vessel forcibly to board it. In this regard, the following question was put to Captain Randell on March 24, last, during the course of his examination by a Special Agent of the Customs Bureau at New Orleans:

“In view of the rate of speed at which you were traveling and the condition of the sea, could he have put a boarding party on board your boat without your slowing down?”

Captain Randell’s answer was: “Positively no, Sir. He would have jeopardized his ship and his men.” Captain Randell had previously testified that his vessel did not decrease its speed when ordered by the Wolcott to heave to, but that it continued on at the same speed at all times.

During the course of the same examination, the following question was propounded to Captain Randell:

“From the time the Wolcott first picked you up on the 20th, until your vessel was sunk, as stated on the 22nd, was she continuously in your sight?”

Captain Randell’s answer, under oath, was “Yes”. From the foregoing and the other evidence in the case, there can be no question that the pursuit was immediately begun and was continuous.

The legal aspects of the case as raised in your note appear to be the following, namely,

(1) whether the doctrine of hot pursuit is applicable to the case since,

(a) the chase began not from territorial waters (i. e. the 3 mile limit) but from the treaty distance of one hour’s sailing;

(b) The arrest of the vessel was performed not by the original pursuing vessel, but by another which had been called for assistance.

(2) whether the degree of force used in this case was warranted.

It is not understood that your Government questions the validity of the doctrine of hot pursuit as such, but merely its application in the instant case. It may, however, be of passing interest to note that in the case of the North, an American fishing vessel found violating the fishing laws of Canada within the 3 mile limit which was pursued beyond that limit and seized upon the high seas, the Supreme Court of Canada upheld the doctrine of hot pursuit. Discussing the doctrine the Court said inter alia:

“…This right has been repeatedly asserted by legislation relative to breaches of shipping laws, neutrality laws, and customs or revenue laws, as well as the case of fisheries. In each case the reasonable necessity seems to have been the basis for such legislation and the reason for its recognition in international law.” (37 Canadian Supreme Court Reports, 385).

The question whether the doctrine of hot pursuit is applicable in cases where the chase began without the customary three mile limit, but within the treaty distance of one hour’s sailing, has been given consideration by the Federal courts of the United States, notably, in the cases of the Pescawha,⁶ the Newton Bay⁷ and the Vinces.⁸ In the last named case, it may be recalled that the British schooner Vinces was signalled to stop by a Coast Guard vessel seven and one-half miles from the shore. This she refused to do and she was chased to a distance of twelve and three-quarters miles from the shore. In the course of its opinion upholding the validity of the seizure of the vessel the Court expressed itself in part as follows:

“… We think it is clear under the hot pursuit doctrine that if the right of seizure existed at the time the vessel was signalled the right was not lost because she had succeeded in getting further from port [shore] in her attempt to run away.”⁹

It may be added that in the two other cases cited above the Courts of the United States have upheld the validity of the seizure on the high seas of vessels suspected of violating the laws of the United States where such vessels had escaped, not from territorial waters of the United States (i. e. the 3 mile limit), but from the distance of one hour’s sailing from the coast of the United States. While I am not unmindful that the decisions of municipal tribunals, however considered their opinion may be, cannot necessarily be regarded as laying down principles of international law binding on foreign states, they are entitled to respectful consideration. It may not be amiss in this respect to point out that the Courts of the United States have not hesitated to denounce executive officers of this Government where their activities, in the Court’s estimation, have been in violation of municipal or international law. This occurred notably in the cases of the Sagatind¹⁰ and the George and Earl,¹¹ where the Courts held the seizures illegal.

Moreover, may I be permitted to point out that no complaint has been made by His Majesty’s Governments in Canada or Great Britain against the enforcement of the doctrine of hot pursuit in the cases of the Pescawha, the Newton Bay and the Vinces, above referred to, which from the statement of the facts in these cases, appear to have been similar to that in the instant case with the possible exception of the amount of force used to bring the vessel to a stop.

In the estimation of this Government, the correct principle underlying the doctrine of hot pursuit is that if the arrest would have been valid when the vessel was first hailed, but was made impossible through the illegal action of the pursued vessel in failing to stop when ordered to do so, then hot pursuit is justified and the locus of the arrest and the distance of the pursuit are immaterial provided:

(1) that it is without the territorial waters of any other state;

(2) that the pursuit has been hot and continuous.

With regard to the duration of pursuit I may state that it is the view of this Government that this is unimportant provided the other elements of hot pursuit are always present. In this relation, may I cite the opinion of the British publicist, Piggott, in his work entitled Nationality, volume II, pages 35–40, in which he holds that “there appears to be no limit of space or time during which it may continue.” On the same point Pitt Cobbett makes the following comment:

“This is sometimes called the law of ‘hot pursuit’ because it is an essential condition of its validity that the pursuit should be started immediately, and that the arrest should be effected, if at all, in the course of the pursuit. Subject to this, the pursuit may be continued indefinitely or until the vessel passes into the territorial waters of another State.” (Leading Cases on International Law, 4th ed. Part I, p. 175)

The following quotation from Piggott is believed to be of interest in this relation:

“The two familiar examples of the application of the principle are offences against the revenue laws, or against the fishery laws, committed within the revenue or the fishery waters respectively. In these cases there is authority both in practice and judicial opinion, that hot pursuit outside those areas on to the high sea would be justified and the seizure upheld as consistent with the law of nations.” (Nationality, Vol. II, pp. 35–40)

Article II of the Convention between the United States and Great Britain of January 23, 1924, recognizes the right of the United States to seize a British vessel within one hour’s sailing distance from the coast where there is reasonable cause to believe that the vessel has committed or is committing or attempting to commit an offense against the laws of the United States. One of the purposes of Article II of the Convention just referred to was to extend in effect the distance from the coast of the United States within which the jurisdiction of this country might be exercised with respect to certain classes of British ships. Should the right of the United States authorities be denied to continue the pursuit of vessels on the high seas when they have been hailed within the treaty limit, it would seem that the advantages purported to be granted by the treaty are illusory, since it would always be open to offending vessels to refuse to stop when signalled, and flee to the high seas. While it is true that most publicists have predicated the right of “Hot Pursuit” upon an effort to arrest within territorial waters, may I point out that the rights conferred in the so-called liquor treaty between the United States and Great Britain are of a novel character and have extended the right of arrest to a greater distance than had heretofore been acknowledged under international law.

With regard to the fact that the arrest of the I’m Alone was performed not by the original pursuing vessel but by another which had been called for assistance, I desire to present the following considerations.

It would seem perfectly clear from the statement of the facts in this case that the “Wolcott was in continuous pursuit of the I’m Alone and that it was present at all times until the latter was sunk by the Dexter which had been called for assistance in view of the fact that the Wolcott had jammed its gun. It should be understood that the Dexter and the Wolcott were operating conjointly as a unit of the same force and under one command. Discussing the limitations upon the doctrine of “Hot Pursuit”, the British publicist Hall says:

“The restriction of the permission within the bounds stated may readily be explained by the abuses which would spring from a right to waylay and bring in ships at a subsequent time, when the identity of the vessel or of the persons on board might be doubtful.” (Hall, 7th ed., 266.)

It is perfectly clear, of course, that in this case there could have been no doubt of the identity of the vessel and that there was no question of waylaying and bringing in the I’m Alone “at a subsequent time.”

It is submitted that so long as the Wolcott was present at all times and was actually cooperating with the Dexter in a joint endeavor to make the I’m Alone stop, the requirements of the doctrine of “Hot Pursuit” were met and the additional factor that the Dexter joined in the chase does not invalidate the legality of the action of the American authorities.

The only remaining question is whether the Coast Guard officials were justified in sinking the I’m Alone. The undisputed evidence is that the master of the I’m Alone refused to stop although repeatedly warned, and that there was no way of boarding it while in motion and that the Coast Guard officials had the choice of allowing it to escape or sinking it. A significant fact in the case is that the master of the I’m Alone preferred to be sunk rather than to be taken into court for adjudication by the courts of the United States where the nature of its activities, its distance from the coast, its speed and the other factors in the case would have been subject to impartial judicial examination.

The Captain of the I’m Alone could at any time have signalled his readiness to comply with the Coast Guard’s request, thus putting an end to any danger either to his vessel or to himself and his crew. If the Captain of the I’m Alone considered that he was being illegally treated, his proper recourse would seem to have been to surrender under protest and to seek his remedy in the courts and through diplomatic channels.

The officers of the Coast Guard used the utmost discretion, and refrained from using force except as a last resort, and in firing on the I’m Alone used the greatest precaution to avoid any loss of life. The one member of the I’m Alone crew who died as a result of drowning was pulled out of the water by a member of the Coast Guard who jumped overboard for that purpose.

May I point out that should it become generally known that Coast Guard vessels would not enforce their orders to stop, offending vessels, when hailed within treaty distance would probably always endeavor to escape and thus defeat the purpose for which the various liquor treaties to which the United States is a party were negotiated.

In this connection it may not be amiss to recall the case of the United States fishing vessel Siloam which on May 24, 1923, was found by the Canadian preventive vessel Malaspina in the vicinity of Solander Island off the coast of British Columbia. While there was some disagreement as to the actual facts in the case, it is undeniable that an American fishing schooner was sunk and a member of its crew was killed by rifle fire from the Canadian preventive vessel while the Canadian vessel was trying to enforce its police powers. The British Embassy transmitted two notes to the Department reporting this incident and the Department acknowledged these notes without protest or comment. Regardless of where the pursuit of the Siloam began, it can scarcely be denied that the degree of force exercised by a preventive vessel of your Government in its effort to compel obedience to its authority in that case constitutes a striking parallel to that employed by the Coast Guard in endeavoring to force the I’m Alone to stop. It is presumed that the action of the commanding officer of the Malaspina was based on the provisions of Chapter 43, Section 7 (2) of the Revised Statutes of Canada which reads as follows:

“On any such ship, vessel or boat, failing to bring to when required, being chased by any such Government vessel or cruiser having such pennant and ensign hoisted, the captain, master or other person in charge of such Government vessel or cruiser may, after first causing a gun to be fired as a signal, fire at or into such ship, vessel or boat.”

I need hardly state that the Government of the United States deplores the loss of the life of Mr. Leon Maingui, a member of the crew of the I’m Alone, by drowning. In connection with his death, however, it must be taken into account that, as already pointed out, the master of the I’m Alone had it within his power to remove at any time prior to the sinking of the vessel the danger in which the lives of the members of his crew were placed by complying with the order to stop. It must also be remembered that at least two members of the crew of the I’m, Alone, Jens Jensen and Edouard Fouchard, testified under oath at New Orleans that the members of the crew of the I’m Alone implored the Captain to obey the command of the Coast Guard officers to stop. These same men testified that there were no life preservers on board the vessel.

With reference to the responsibility for the death of Mr. Maingui, Mr. Edouard Fouchard, a cousin of the deceased, was asked during his examination at New Orleans the following direct question:

“Do you think that the Captain (of the I’m Alone) was the cause of your cousin’s death?”

His answer, under oath, was as follows:

“If there were life preservers on board and the Captain had surrendered like a sensible man, my cousin would never have died.”

Your note states that when the Coast Guard vessel Dexter joined in the pursuit and commenced firing on the I’m Alone, it was with the deliberate intention of sinking the vessel and not merely of rendering it helpless, as, you suggest, might have been done by crippling its rudder. In this regard, may I remind you that the commanding officer of the Dexter, as well as the master of the Wolcott repeatedly commanded the I’m Alone to stop and made every possible effort to force it to do so before sinking it. The Coast Guard authorities point out that perhaps the easiest way to stop an offending vessel in ordinary circumstances is to fire into its engine room and thus disable its engines. Unfortunately, the officers of the Dexter did not know the location of the I’m Alone’s engines, and they feared that if they fired into the vessel with the view of disabling its engines, the shells might kill members of the crew.

It may be added that, according to a statement of the commanding officer of the Dexter, during the latter part of the chase, several members of the crew of the I’m Alone were observed aft on the schooner. There was a heavy sea and the vessels were rolling badly. The commanding officer of the Dexter feared that, if he tried, in such circumstances, to disable the schooner’s rudder, a shell might strike it high and kill those members of the crew who were aft. It thus appeared to him that the safest course to pursue was to fire into the vessel below the water line and this was done. It is to be noted that no member of the crew was injured by gun fire, and, had there been life preservers on board, there is every reason to believe that the life of Mr. Leon Maingui would have been spared.

It is my earnest hope that the above statement may satisfy the Canadian Government that in the case of the I’m Alone the American authorities were justified by the facts in pursuit of the vessel on the high seas; that their sinking of the ship was, in the circumstances, inevitable and that they acted throughout in full accord with the law. I hope even more that this may prove to be true because I so thoroughly appreciate the very important assistance generously accorded by the Canadian Government in the prevention of the smuggling of intoxicating liquor into the United States. I am sure you will realize that it is the aim of all branches of this Government in the enforcement of the Prohibition Law, as well as all other laws, to act themselves not only in a strictly legal manner but with due regard to the dictates of humanity.

If your Government however, after a careful examination of this note, still finds itself unable to concur in the findings of facts and the conclusions of law set forth herein, the Government of the United States will gladly agree to submit the matter to arbitration as provided for in Article IV of the Convention between the United States and Great Britain of January 23, 1924.

Accept [etc.]

Henry L. Stimson

6. Woitte v. United States, 19 Fed. (2d) 506 (Circuit Court of Appeals, 9th Circuit); certiorari denied 275 U. S. 545.
7. 30 Fed. (2d) 444 (District Court, E. D., New York); affirmed 36 Fed. (2d) 729 (Circuit Court of Appeals, 2d Circuit).
8. 20 Fed. (2d) 164 (District Court, B. D., South Carolina); affirmed Gillam v. United States, 27 Fed. (2d) 296 (Circuit Court of Appeals, 4th Circuit); certiorari denied 278 U. S. 635.
9. 27 Fed. (2d) 299.
10. 4 Fed. (2d) 928 (District Court, S. D., New York); affirmed 11 Fed. (2d) 673 (Circuit Court of Appeals, 2d Circuit).
11. 30 Fed. (2d) 441 (District Court, E. D., New York).