PUBLIC RECORD OFFICE
Reference :-
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C.O.885
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH—NOT TO
14 PUBLIC RECORD OFFICE, LONDON
GENTLEMEN,
the
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FOREIGN OFFICE to LAW OFFICERS.
I HAVE the honour to transmit to you, by direction of the Earl of Kimberley,
Foreign Office, March 18, 1895. papers noted in the accompanying list which relate to the seizure of the British sealing-schooner "Wanderer" by the United States ship "Concord" in June last for an alleged infringement of "The Bebring Sea Award Act, 1994" (Paper A). The facts of the case are given in the inclosed letter from the Admiralty (Paper B).
Tho "Wanderer," while in the waters affected by the Award of the arbitrators, and during the close season was boarded, and the master warned by an officer from the United States ship "Yorktown" of the provisions of the Award Act.
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A certain quantity of arms and ammunition was produced to the officer of the Yorktown," and was sealed up in accordance with an arrangement come to between the British and United States Governments in May last (Paper C); and the master of the "Wanderer" signed a statement to the effect that the fire-arms, sealing implements, and ammunition then produced and specified in the statement 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.
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On the afternoon of the same day the vessel was again boarded within the waters affected by the Award by an officer from the United States ship master produced the arms and ammunition which had been sealed up in the morning, Concord." The and the seals which had previously been placed on them were found to be intact. Further search was, however, made, and in the extreme forward part of the ship a shot-gun with thirty-nine cartridges loaded with buckshot for use with the gun were found, which the mate of the "Wanderer" said belonged to him.
The number of seal-skins found on board corresponded with the number counted by the officer of the "Yorktown" (Paper B, Enclosure 4).
The vessel was thereupon towed to St. Paul's, Kadiak Island, formally seized, sent thence with a prize crew to Unalaska, and handed over to Her Majesty's ship "Pheasant, in accordance with Article 1 of "The Behring Sea Award Order in Council, 1894" (Paper D).
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The grounds for the seizure, as given by the Commander of the "Concord "(Paper B, Enclosure 4), were "the possession of an unscaled gun and ammunition in contra- vention of The Behring Sea Award Act, 1894, clause 1, paragraph 2, and clause 3, "paragraph as well as of section 10 of the President's Proclamation" (Paper D). –
The allusion to section 10 of the President's proclamation, which apparently seeks to establish a presumption against a vessel found within the area comprised by the Award with sealing implements on board, although there is no corresponding provision either in the Award of the Tribunal of Arbitration in "The Behring Sea Award Act, 1894," or in the Behring Sea Order in Council, was probably inserted through some misapprehension on the part of the seizing officer, and it is clear that, except in so far as the President's proclamation embodies substantive provisions of the British Statute and Order in Council, it cannot be binding on British subjects outside of United States territory.
The sections and sub-sections of the English enactment referred to provide penalties for contravening the Award Regulations, which forbid by Article 6 the use of fire-arms and explosives in the fur-seal fishing, except outside of Behring Sea, during the season when it may be lawfully carried on.
The master protested (Paper B, Enclosure 7), one of the grounds of protest being that the gun and ammunition were the private property of the mate, and that they had been hidden by him (the mate) without his (the master's) orders or knowledge. On this point, in so far as it may affect the liability of the master under the circumstances, I am to refer you to section 4, sub-section 2, of "The Behring Sea Award Act, 1894' (Paper A).
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The master also said, at the time the vessel was boarded, that he was making direct for St. Paul, a port in United States territory. On the receipt of the necessary documents, the Commander-in-chief on the North American Station requested Messrs. Davie, Pooley, and Luxton, the Admiralty Solicitors in Victoria, British Columbia, to give him a legal opinion as to whether a verdict in favour of the Crown would be likely if the vessel were prosecuted. Enclosure 1):—
Their opinion was as follows (Paper B, "The vessel could not be successfully prosecuted for sealing during the close season, because the sealing outfit (except the gun and ammunition mentioned, i.e., the shot-gun and thirty-nine cartridges) and the scal-skins (400) were scaled up by the
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officer of the United States ship Yorktown,' and upon the subsequent boarding of the said schooner by the officer of the steam-ship Concord' the seals that had been placed upon these several packages were unbroken, and it would therefore be unreasonable to suppose that the schooner Wanderer' was proceeding upon a sealing voyage with only one gun; and no charge of this nature is alleged by Commander Goodrich, commanding the United States ship Concord,' in his report.'
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In these circumstances, Admiral Stephenson, without communicating with the officer commanding the "Concord," whose action in seizing the "Wanderer," and in delivering her to a British officer was based on "The Behring Sea Award Act, 1894," and on "The Behring Sen Award Order in Council of the 30th April, 1894" (Paper D), decided not to take proceedings against the " Wanderer," and requested the collector of Customs at Victoria, in whose charge she was, to release her.
Had proceedings been instituted against the "Wanderer," they would have been taken by way of an Admiralty notion in rem for the condemnation of the ship for a contravention of "The Behring Sea Act, 1894;" and it is presumed that the pleadings and procedure would, as a matter of fact, have been cast in similar form to those in re the ship "Oscar and Hattie," which was heard on appeal, from the Admiralty District of British Columbia, by the Supreme Court of Canada, in October 1893 (see vol. xxiii, No. 3, of the Reports of the Supreme Court of Canada, pp. 396 et seq., which is sent herewith).
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It will be observed that, on the pleadings in the matter of the " Oscar and Hattie" above referred to, Her Majesty the Queen appears as the actual plaintiff, although it is believed that, in other proceedings of an analogous nature taken in this country by Her Majesty's Customs under those provisions of "The Merchant Shipping Act, 1854,' which are incorporated by Schedule in The Behring Sea Act, 1894" the seizing officer is usually made the plaintiff. In such a case, should the Court be of opinion that there were no reasonable grounds for the seizure or detention of the ship, it is presumed that any order for the payment of damages to the aggrieved party would be made nominally against the seizing officer, who would be subsequently reimbursed by the Crown.
But in the case of proceedings taken by the Queen herself, it is not clear against whom, if any one, the court could make such an order.
Moreover, even assuming that, in cases where a United States officer seizes and detains a British Colonial vessel, which ho subsequently hands over to the British authorities for prosecution before their Colonial courts, the procedure adopted in the case of the "Oscar and Hattie" is correct in point of form, it seems doubtful, nevertheless, in the event of the abandonment of such proceedings by the British authorities without the knowledge anl assent of the United States' Government, whether any claim for compensation in respect of a seizure alleged to have been originally illegal can properly be put forward by Her Majesty's Government against that of the United States.
It would seem to be open to the United States Government to argue that, in such a case as that of the "Wanderer," they cannot be held in any way responsible for the consequences of Admiral Stephenson's action, with respect to which they were never consulted, which they might lave deprecated if they had been consulted, and of which the result has been to deprive them of the benefit of the only decision which they are prepared to recognize as binding and authoritative upon the legality or otherwise of their officer's proceedings. The United States Government might not improbably conten, in the event of this claim being pressed (and it is therefore relevant to the purposes of the present reference to consider the possible contention), that although they had agreed to accept as decisivo of such questions the judgment of the tribunal nominated for that purpose by the Act under which the proceedings in the case of the Wanderer were taken, they must decline to be bound by, and must seriously protest against, the action of the British Admiral in withdrawing the case from the tribunals without their consent, and in practically substituting his own opinion upon the merits of the case for the judicial decision to which they were entitled.
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C
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On the other rand, it might be argued that, as the Conimander of the Concord' appears to have seized the ship under the misapprehension that the provisions of the United States Act applied to British vessels, and as the documents in the case did not disclose any offence against the English Statute, it was impossible for Her Majesty's Government to cause proceedings to be taken against the vessel.
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A letter from the Colonial Office is also enclosed (Paper E), expressing the opinion that the seizure of the Wanderer" was entirely unwarranted, and suggesting that Her Majesty's Ambassador at Washington should be instructed to make a representa-
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