PUBLIC RECORD OFFICE
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Reference :-
C.O.885
14 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
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it is inconsistent with itself and with the earlier official accounts given by the Russian Government. A further memorandum on the position of the vessels when seized is inclosed in a later letter from the Colonial Office (Paper F).
Under these circumstances, Lord Ripon was of opinion that the claims for compensa- tion should be again pressed upon the Russian Government, but suggested that, before this was done, the papers should be referred to the Canadian Minister of Marine and Fisheries for an expression of his views as to the course to be followed.
Mr. Tupper in his reply to this reference (Paper D) observes that the Report of the Russian Commission upon the seizure of these vessels certainly reveals strong contra- diction between the affidavits the British subjects forwarded to Her Majesty's Government and the statement of facts supplied to and accepted by the Commission, and that there are many circumstances detailed in that document which render the account given by it untrustworthy and unsatisfactory.
The facts in dispute could not, however, in his opinion, be settled by an appeal, either to the affidavits on one side or to the ex parte evidence on the other.
He therefore suggests that the Russian Government should be requested :-
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1. To supply the Protocols containing the circumstance of the seizure of the 'Olsen,"
"Marie,"
Carmolite," "Vancouver Belle," and of the boats of the "W. P. Sayward."
2. To give permission to inspect and take copies of the logs and charts of the fore- going vessels.
3. To furnish reports on the courses of the "Zabiaka,” “ Vitiaz," and "Kotik," together with copies of the evidence given by the commanders of those vessels before the Commission.
He thinks that, so soon as this information has been obtained, a proposition should be made to the Russian Government for the constitution of a Joint Commission to take evidence, both in Canada and Russia, touching the facts in dispute, so that in the event of the Governments not being able to agree after consideration of the evidence so taken, the evidence might be referred to arbitration, and the various points in difference so settled.
I am to request that you will take the papers transmitted herewith into your con- sideration, and that you will favour Lord Rosebery with your opinion-
1. As to the correctness of the principles of international law on which the Russian Government based their assertion that the seizure of four of these vessels was legal ;
2. Whether there are sufficient primâ facie grounds for continuing to press on the Russian Government the claims for compensation for these four vessels; and
3. Whether as a first step, and with a view to subsequent examination by a Joint Commission, the documents enumerated by Mr. C. Tupper should be obtained fromthe Russian Government.
Lord Rosebery would also be glad to receive any general observations which you may have to offer on the case.
Your former Report on this subject and the papers which were originally submitted to you are inclosed for convenience of reference.
(A) Sir R. Morier
(B) Sir R. Morier
Colonial Office Mr. Tupper
(E) Mr. Howard
Colonial Office
I am, &c. (Signed)
T. H. SANDERSON.
List of Papers.
(No. 105) (No. 195)
(No. 298) November 29, 1892. (No. 161) June 12, 1893.
July 24, August 7, July 26, September 13,
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LAW OFFICERS to FOREIGN OFFICE.
We have taken the papers transmitted to us with Sir Thomas Sanderson's letter of the 16th September last, înto our consideration, and in obedience to your Lordship's commands have the honour to
Report--
That the facts as represented by the Russian Government on the one side, and by the Canadian sealers on the other, are contradictory in some material points, as appears from the criticism of the facts made by Mr. Anderson in his memorandum of the 30th June 1893, and we agree with his conclusion that the Russian Government should at once be asked for the protocols containing the circumstances of the seizure of the Rosie Olsen," "Marie,” “ Carmolite and "Vancouver Belle," and for an inspection of the logs and charts of these vessels upon which the cases against them are built up, and for the Reports on the courses of the "Zabiaka,” “Vitiaz" and the Canadian Government they ought also to be asked for further information, and Kotik". As to particularly as to the boats of the "Rosie Olsen" and "Marie."
C
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We suggest that Mr. Anderson be asked to prepare in relation to each seizure, and in the form of a schedule with three columns, a concise statement of the facts as represented (1st column) by the Russian Government, (2nd Column) by the Canadian sealers, and a third column for further observations.
There appear to be three main questions of principle involved, namely—
(1.) In what cases may a vessel which has committed an offence within territorial waters be captured outside such waters;
(2.) May the boats of a vessel be regarded as forming part of the vessel; and, (3.) Is a seizure in non-territorial waters made on suspicion of an offence within such waters justifiable if the subsequent search affords evidence of the offence having been committed.
With reference to the first question we think such an offending vessel can only be arrested, if there has been a hot and continuous pursuit from the time of the offence till the time of the arrest, and that the pursuit cannot properly be described as hot and continuous unless it has been carried on so that (apart from any evidence found upon arrest) there can be no reasonable doubt that the vessel arrested was the one that committed the offence.
It appears at least doubtful whether the Russian Government clearly recognise this principle.
With respect to the second question we think for the purposes of the present case, the boats of a vessel which commit an offence, render the vessel herself liable to seizure for such offence whenever it appears that the boats were acting with the consent, express or implied, of the master of the vessel, and provided that the pursuit of such vessel be hot and continuous.
It does not seem to us that the Russian Government substantially take a different view, but Monsieur Chichkine's reference to this principle is perhaps rather loose.
With reference to the third question we think Her Majesty's Government cannot be advised to admit the principle that vessels may be searched on suspicion, and that seizures may be justified by the result of the search.
No doubt by convention such rights of search are in special cases allowed, as for instance, in the conventions relating to the Slave Trade and the results of such search may justify the seizure, but this principle cannot, apart from convention, be admitted.
If, however, the Government of Her Majesty is satisfied that the offending vessel had committed offences against a friendly Power, it would be a matter of policy for the Government to determine how far it ought to throw its shield to protect offenders. This is a principle of policy which largely affects, for example, international dealing in relation to the Hovering Acts.
We think that in the further communications to the Russian Government the points we have referred to should be taken.
The practical result is that until fuller information is had the claims in respect of none of the seizures should at present be abandoned.