EXHIBIT III.
In conformity with order No. 160 of the commander of the Pacific Squadron dated the 11th September, 1892, the commission appointed by that order, and composed of the Ship’s Captain Hessen, president; Ship’s Captain Zarine, Captains of Frigate de Livron and Philissow, and of the auditor chief counselor of the college Yanevitch Yanevsky, members, with Lieutenant Petrow, executive officer, proceeded to execute the work intrusted to them, took cognizance of the circumstances of the seizure of the American whaling bark Cape Horn Pigeon.
From the report of Lieutenant von Cube, who seized said bark, it appeared that he had been detailed from aboard the first-class cruiser Vitiaz aboard the schooner Maria, seized by the cruiser for illegal seal fishing, for the purpose of conducting her to Vladivostok during the voyage, when in 46° 33′ latitude north and 140° 30′ longtitude east he sighted the bark Cape Horn Pigeon, and, suspecting it of engaging in the same [Page 294] illegal industry, he sent his Second Ship’s Ensign Simansky with armed sailors to ascertain what vessel it was, and what its mission. Having learned from the bark’s Captain Thomas Scullun, who returned with Lieutenant Simansky, that it was a whaling vessel having aboard at that moment the product of two whales killed by him, Lieutenant von Cube found it impossible to abandon his first intention. Moreover, on examining the log book and the navigation chart of the bark, he was convinced that the latter had on several occasions approached the Russian coast of the sea of Okhotsk, where whaling is absolutely interdicted to foreigners. Furthermore, Lieutenant von Cube was confirmed in this opinion by the circumstance that at the approach of the schooner the bark had hoisted a signal, which, according to Captain Scullun’s explanation, had been intended for the schooner Mary H. Thomas, expected that same night, and which also engaged in whaling and sealing. In view of these facts, Lieutenant von Cube considered it incumbent upon him, in the interest of the Russian Government, to conduct said bark to Vladivostok in order that the question might be decided at once whether or not she should be confiscated. But not having at his disposal a crew sufficiently numerous to put a portion of it upon the bark, and not wishing to trust to the bark’s crew, he decided to go aboard the bark with his entire crew, and to keep with him the bark’s captain he transferred the captain’s mate, with the entire crew of the bark, aboard the schooner Maria and ordered them to repair to Vladivostok. The Cape Horn Pigeon arrived at Vladivostok on the 7th September and the schooner several days earlier.
The commission at once took cognizance of the statements relating to this affair, as well as of the documents in evidence, such as the log book kept by Lieutenant von Cube on the schooner Maria, and afterwards on the bark Cape Horn Pigeon, the log book of the latter kept by Captain Scullun, the sailing papers of the bark taken from the captain by Lieutenant von Cube, the navigation chart of the bark and the instructions given to commanders of Russian cruisers on being sent north, to regulate their conduct when boarding and seizing schooners suspected of marauding.
From the above-mentioned documents and the examination of said bark made by the commission (of which the protocol is hereunto attached) results the following:
1. The bark Cape Horn Pigeon having left Vladivostok on June 22 (7th July) of this year without obtaining the permission sought for to take whales in the bays and coast waters of the Sea of Okhotsk, caught two whales in said sea; she sighted the first of these and began the chase at 5 miles from the island of Askold, but was not successful in catching it there.
During her cruise to the west of Cape Aniva, she communicated several times while at sea with the schooner Mary H. Thomas, which, according to Captain Scullun’s statement, is engaged in whaling and sealing.
2. Whaling in the Sea of Okhotsk is not interdicted to foreigners except in the bays, the gulfs, and straits, and in coast waters or along shore. It is even permitted to foreign fishing vessels in cases of extreme necessity to enter the bays and gulfs, provided they do not enter into such negotiations with the inhabitants as are forbidden by law.
3. Upon the bark were found the oil and bone of two whales killed, as said the captain, in the Sea of Okhotsk, in that part wherein whale fishing is permitted; but although the statements of the captain were confirmed by the log book and the chart, the commission did not consider this fact sufficiently proven.
4. The conduct of Lieutenant von Cube at the time of the seizure of the bark is considered by the commission perfectly regular, inasmuch as overhauling a suspicious vessel, in a suspicious locality, he could not do otherwise than seize it and submit to an investigation as to the legitimacy of the seizure by a superior authority. The commission will not fail to notice here that the mere feat alone of detaining a bark with a crew numbering 30 men by the much less numerous crew of the schooner shows the initiative spirit and resolution of Lieutenant von Cube.
In consequence of the preceding and the impossibility of establishing the fact that the two whales had been taken by the bark in that portion of the Sea of Okhotsk where whaling is prohibited, the commission is of opinion that the position of the bark near the Russian coasts does not of itself constitute an illegal act, and it declares that for this reason the bark Cape Horn Pigeon can not be convicted of having engaged in illegitimate business, and it does not see sufficient motives for its confiscation.
- Yanevitch-Yanevsky, Presiding Counsellor of College.
- Captain of Frigate Philissow,
- Captain of Frigate de Liveon,
- Ship’s Captain Zaeine,
- President, Ship’s Captain Hessen,
- Executive Officer, Lieutenant Petrow,