without interruption and without reference to the warning given by the cutter Richard Rush. The nature of the testimony depended upon to establish a claim for a season extending to the 15th day of September removes all doubt, if any exists, as to the duration of the voyage. 55. Q. When you left for the voyage had you any conversation R., 1400, line with the owner of the vessel as to the time that you were to remain in Bering Sea in 1887? A. Well, yes; several conversations on that subject. A. That from hearsay, from those who had been to Bering Sea before, that we could make a good catch the latter part of August and the beginning of September. At that time a fine spell of weather is expected, and I had a thorough understanding with Mr. Byrns, myself being on a lay, that the vessel would be provisioned to such an extent of time that it would enable us to stay until we were driven out by the weather or could not find any more seals. Q. Had you been in Bering Sea before that time? Q. Had the captain? A. No, sir. There is no testimony in the record upon which to base the claims for "proportion of Warren's expenses to Ottawa, $152," and "expense of owner, $200," and "Belyea's charges, $250," and no testimony is cited on behalf of Great Britain. The Government of the United States contends that the Triumph continued her voyage after the warning without interruption, secured an unusually large catch, and having hunted the full season, sailed for Victoria, where her catch was sold, and that no damage resulted to the owners from the warning given by the cutter. R., 1403, line 54. R., 1339, line 41. THE JUANITA. CLAIM No. 13. The Juanita entered Bering Sea on the 2d day of July, 1889, and commenced her sealing operations on the 10th of July. She was seized on the 31st of the R., 1340, line same month by Captain Shepard, of the United States revenue-cutter Richard Rush. 34. R., 1339, line 20. The crew consisted of 14 Indians, the captain, and 3 sailors. There is no evidence bearing upon the number of canoes carried by the Juanita, but the fair presumption is that she had 7, inasmuch as she carR., 1343, line ried 14 Indians. The stern boat was not used for hunting to any extent. 52. R., 1338, line 40. R., 1340, line 61. R., 1340, line 68. The cutter seized 619 seal skins and the spears of the Indians. There is no evidence that any seals were taken after the 31st day of July or that the boats were lowered. Captain Clarke, also one of the owners, testified: Q. Had you arranged that before you left Victoria? A. To the best of my belief at the present time, and what transpired afterwards, I believe the 10th September was the day mentioned by Mr. Hall. He said that we could stay longer. I think that he had had information from someone who had been there that seals had been caught in September, and that the season was not actually closed. The answer of the witness not being satisfactory, he was pressed, on direct examination, for the purpose of obtaining an answer giving a later date for the closing of the sealing season: Q. And it was your intention to stay until the beginning R., 1341, line of September that year-up to about the 14th? A. I think that the 10th was the day mentioned. The only other testimony in the Record bearing upon the proposed duration of the voyage of the Juan ta was given by Richard Hall, one of the Owners: 17. Q. What length of voyage was your vessel fitted out for R., 1349, line when she went to Bering Sea? A. When the captain left I told him to stay on until some time in September. I do not remember exactly what date. Q. Had you information that there was any use staying until September? A. Yes; I was told by some one in the sealing business that there was sealing to be done in September. Q. And you made up your mind to try that? A. Yes; I told the captain to stay in till September, if possible. On cross-examination this witness testified: 26. Q. Who told you that they got seals in September in Ber- R., 1350, line ing Sea? A. I am not certain, but I think that it was Victor Jacobsen, the captain of the Minnie. Q. Were you told that they caught seals in September the year before-1888? A. It was in the fall of 1888 that he told me. He told me to have the schooner stay in September, as there had been sealing in September. Q. Did he say that they had been sealing in September in 1888? A. I will not say that, but he advised me to have the schooner stay in in September. And again: 6. 35. Q. You outfitted, you say, until the middle of September? R., 1351, line A. I will not say that I told him to stay until any certain date in September. I think that it would be about the 10th of September that he would be supposed to leave there. Upon this testimony the claim is based that the sealing voyage of the Juanita would have ended on the 15th day of September. The testimony is that R., 1447, line 46. R., 1119, line 63. of two owners, it is based upon a vague rumor that one vessel had taken seals in September in the year 1888, and it was concluded that it might be profitable to attempt to prolong the voyage of the Juanita until the 10th of September. It is, of course, to the interest of these claimants to extend the sealing season as far as possible into September, but this testimony certainly will not warrant the finding that the time during which they were deprived of the use of their schooner extended until the 15th day of September. The High Commissioners have more authentic testimony of the basis of the rumor upon which Mr. Hall based his testimony regarding the proposal to remain in Bering Sea until the 10th of September than Mr. Hall himself had. Capt. Victor Jacobsen, who is also a claimant, was examined relative to the voyage of the Mountain Chief in 1888: Q. I am talking about whether you are certain you hunted after the 3d of September? A. We went out through the Pass, but we hunted to the last. We left the sealing ground on the 3d of September in the sea, and went and filled water, and we lowered and sealed after we filled water and come out, the same day we come out or the day before. Q. You practically abandoned your hunting then on the 3d of September? We come and filled water A. Out in the sea, I suppose. This is the only sealing schooner that hunted in year 1888. The Juanita was in Bering Sea in the year 1888, and terminated her voyage August 20. The general testimony relating to the close of the sealing season fixing it as between the 20th and 25th of August, and the convincing character of that testi mony is sufficient to outweigh the vague testimony of these two owners given in their own behalf. R., 1337, line The Juanita was built in 1875. Her was 40.21. The fact that the Juanita entered Bering Sea on the 2d day of July and carried on, without interruption, her hunting operations until the 31st of July, taking in the meantime 619 seal skins for which, even at the extortionate value of $11 per skin, $6,842 is claimed, when compared with the claim made for 2,102 skins, which would have been taken during the balance of the season, and for which $23,122 is claimed, is convincing evidence of the injustice of making use of a calculation of the prospective catch of seals as a basis for estimating the damages suffered by these vessels whose voyages were interrupted. The demand for $23,122 for the use of a vessel of 40 tons for a period of from twenty to twenty-five days is too grossly extortionate to be considered by a tribunal of justice. The vessel was worth about $2,000, and that she could earn over five and one-half times her value within twenty or twenty-five days, and at the rate of over $250,000 a year, is so impossible that justice will not permit of the use of any such basis for estimating the future earnings of this vessel. This vessel is entitled to recover from the Government of the United States her charter value from the 31st day of July to the 20th or 25th of August, measured by the rule of law stated in the Argument relative to the measure of damages in cases of partial loss, in addition to the value of 619 seal skins at the market price obtaining at Victoria at the time the skins would have been offered for sale. B S-27 |