The C. H. White.

The exact position of the C. H. White at the moment of seizure is of small consequence. That is to say, it matters little whether it was in 54° 10’or 54° 18’ latitude, since it is admitted by the defendant party that the seizure took place 23 miles from the Russian coasts.

It is also immaterial that the master of the schooner, basing his assertion upon the best information that he possessed, declared that it was at 80 miles from Russian land. He showed exactly the geographical position of the vessel, and his declaration that said position was 80 miles distant from Russian land constitutes only an error of calculation. However, it is but just to say that when measuring the distance to make his declaration after the seizure Captain Furman used an erroneous chart published by the United States Coast Survey, which showed the Copper Island in latitude 55° 35’, which would have made that island 80 miles distant from the point where the C. H. White was at the moment of her seizure. The chart used by Captain Furman for the navigation of the vessel was confiscated by the commander of the Russian cruiser. In support of this explanation of the error of Captain Furman and to prove his veracity, a copy of said erroneous chart is annexed hereunto, marked “Exhibit A.”

The defendant party declares in the counter memorandum that the seizure took place 23 miles from Russian territory; it was consequently beyond Russian jurisdictional waters.

The sole justification for the seizure of this vessel presented by the defendant party is, it was suspected of having navigated in Russian waters and of having therein committed an infraction of Russian municipal laws.

This suspicion is based, according to the argument of the defendant party, upon the following alleged circumstances, which are entirely unsupported by proof:

1.

That the vessel was sailing without distinguishing lights;

2.

That the log book showed that the vessel had been in the proximity of the Russian coasts, and that this log had not been kept during two days;

3.

That the course followed by the vessel showed a passage at 3 miles off the southern extremity of the Copper Island; and

4.

That aboard the vessel were found skins of fur seals.

Regarding the first declaration, it must be observed that the seizure took place in latitude 54° 10’ or in 54° 18’ on the 3d (15th) July, at 10.30 p.m., at which hour on that date in those latitudes it is not yet dark and there is no need of lights. That is clearly demonstrated by the fact that the vessel was sighted at a distance of 2 miles distinctly enough to enable the cruiser to give a detailed and exact description [Page 356] of the schooner. It is even doubtful if it is, possible to see colored lights in that light, therefore it is not proven that the vessel carried none.

The use of distinctive lights is required by the marine regulations as a measure of precaution when navigating at night, but when it is possible to see distinctly a vessel 2 miles distant the necessity for showing lights does not exist. In any event, the failure to show distinguishing lights when navigating the open sea during the night, while it constitutes an infraction of the international marine regulations, is not an act which justifies the seizure and confiscation of a foreign vessel by an armed cruiser. Nor can it be said that the absence of distinguishing lights under the existing conditions, and which rendered the C. H. White distinctly visible 2 miles distant, is a proof of an attempt at escape from observation on the part of the guilty vessel. On the contrary, from the C. H. White the cruiser was as plainly visible as the schooner was from the latter, and it was well known that here was a Russian man-of-war which had seen them, and if the captain wished to save himself, surely he would do nothing that would expose him to the cruiser’s suspicions.

As to the allegations of the defendant party relating to the statements contained in the log book of the C. H. White, aside from the question whether or not a government has the right to seize a foreign vessel on the high seas upon suspicion that it has violated the municipal laws of that government, the fact remains that the defendant party did not produce the log book of the C. H. White, which was confiscated with the vessel, there does not exist any testimony in support of the allegations of the defendant party concerning the declarations said to be contained in the log book, and consequently of the deductions that have been drawn therefrom.

The party claimant mentioned in his memorandum that the document is in the hands of the defendant party, and that allegations not supported by the presentation of the log book itself ought to be considered as inapplicable and excluded. And the presentation of the log book should not be admitted now as evidence in the arbitration, since by the terms of the protocol the party claimant is not permitted to rebut it.

The declaration of the defendant party that the course of the C. H. White indicated that it had been 3 miles from the Copper Island is a mere supposition not at all supported by evidence. It is not evident upon what ground that conjecture was founded, but the C. H. White did not follow any fixed course with the purpose of arriving at a particular point without delay, but was engaged in sealing on the high seas, an occupation which left her free to change her course frequently in a short space of time, and she very probably did so a short time before being sighted by the cruiser. Even though it had been proved that the C. H. White had navigated in waters within 3 miles from Russian land, there still remains the right of an innocent passage, and without definite proofs that the vessel had committed an infraction of the laws they had assuredly no right to seize her, even though we admit the right to pursue on the high seas for breaking the municipal laws.

The party claimant admits that the C. H. White was a vessel engaged in sealing, a business entirely legitimate at that time; therefore it was equipped for that business, and that it had aboard the skins of seals, [Page 357] product of such catch. But it submits that the defendant party failed to produce the slightest evidence either to show that it had committed any depredation whatever within the Russian jurisdiction or that the C. H. White or anyone aboard her had entered Russian territory.

The allegations of the defendant party that the C H. White was engaged in sealing in Russian waters are simply expressions of opinion. Not only does the counter memorandum contain no evidence in support of these allegations, but furnishes no refutation of the claimant’s proofs and arguments contained in its memorandum. It is true that the defendant party replied to the citation of the case of the Costa Pica Packet made by the party claimant, that the latter did not resemble the present case: The party claimant begs to call attention to the fact that the case of the Costa Pica Packet was cited as a precedent for the recognition of the loss of the catch as measure of damages in the award of an arbitrator, in the case of a vessel illegally seized and detained.

The defendant party objects to the amount of damages claimed for the arrest and detention of the officers and crew of the C. H. White. These men were detained as prisoners for nearly a month, and were subjected to treatment which the defendant party, while denying that it was severe, excuses on the plea of lack of facilities, but which the officers and crew unite in declaring under oath to have been extremely harsh. No evidence having been presented to refute these declarations nor the credibility of these witnesses, their testimony must be accepted, and the party claimant refers to this testimony for the details of their treatment.

The degree of ill treatment was certainly much less in the case of the captain of the Hans (Exhibit C), who was paid $3,000 by the United States Government for his arrest and detention of five days. Thus the party claimant is convinced that the honorable arbitrator will find the indemnity claimed under this head far from exaggerated.

The allegation of the defendant party that the valuation of the vessel and its equipment is estimated only by interested persons is entirely without reason and quite erroneous.

Two witnesses of unquestionable integrity and fully competent, besides the president of the company to which the C. H. White belonged, testified under oath as to their impartiality, as well as to the value of the vessel and her equipment, whereas another testified as to the probable catch during the remainder of the season after her seizure.

All that is proved by the testimony presented by the defendant party is that the C H. White was seized on the high seas under the simple suspicion of having violated the Russian municipal laws near Russian waters, and for that reason it was confiscated without trial by a prize court and without permitting the captain of the vessel to justify himself, but the officer who arrested her constituting himself judge of his own actions, thus arbitrarily confiscating the vessel.

In fact, the defendant party failed to present any proofs whatever that could refute any of the testimony in support of the claims set forth in the memorandum, or to justify in any way whatsoever the seizure and confiscation of the C. H. White, or which could show a sufficient cause why they should not pay the whole amount of damages claimed.

The case of the defendant party should be considered closed, except in so far as concerns the refutation of testimony or of arguments contained [Page 358] in the present rejoinder to the counter memorandum, since the protocol does not prescribe any opportunity for the party claimant to refute any further evidence or arguments which the defendant party may have to present.

The party claimant therefore submits the case to the honorable arbitrator in the firm belief that he will grant the total amount of damages claimed.

The party claimant notes that the printed copy of Exhibit I of the counter memorandum shows that Captain Furman wrote upon this document the following statement:

Although it is of little importance as regards the right of seizure and of confiscation of the vessel whether or not the captain thought he was violating the rules of navigation concerning the distinctive lights, it is very evident that herein is an error of some sort, either of transcription of the original or on the part of the captain in writing the note in question. The phrase as it appears in the printed copy is illogical, without meaning, and entirely non sequitur.

The phrase as it appears in the transcription begins by saying that the captain was ignorant of the absence of distinguishing lights, and then, although using the conjunction “also,” he contradicts himself by saying: “I also believed I was breaking the laws or rules.” The most ignorant persons do not use the conjunction “also” to unite such expressions in English. It is quite evident that the captain intended to say, and probably really did say: “And I also believed I was breaking no laws or rules.” The mere substitution of the word “the” for “no” strips the phrase of meaning instead of making it appear that the captain acknowledged himself guilty. Consequently the party claimant prays the honorable arbitrator to examine the original of this document, believing he will find that Captain Furman wrote:

Which is evidently what he intended to say.

Again, it is possible that the captain, in the agitation of the moment, omitted the word “not.”

However, the question of this phrase is not of great importance here because, even if the captain knew that he was at fault regarding the rules governing distinctive lights, it does not follow that he had trespassed upon Russian jurisdiction and does not justify the seizure and confiscation of the vessel.