THE BLACK DIAMOND AND THE LILY. CLAIMS NOS. 15 AND 16. R., 1767, line 55; R.,1768, line 35; Ex. 113, G. B.; Claim No. The Black Diamond entered Bering Sea July 6, R., 1767,lines 42, 38, 43. 1889. She was outfitted with ten canoes. Sealing operations were commenced on the 10th day of July. The steamship Richard Rush, in the service of the United States, seized the vessel on the 11th day of July, about 12 o'clock. Seventy-six seal skins, one rifle, and the spears of the Indians were taken aboard the cutter, landed at Sitka, proceeded against by the Government of the United States, and condemned. The claim is one of partial loss. The measure of Exhibits, pp. damages is the charter value of the ship from the 11th day of July to the 20th or 25th of August, measured 19. by the rule of law stated in another part of this Argüment, and the value of the skins seized. 15. R., 381; 44, 50. The value of the skins taken after the seizure should R., 1768, lines be deducted from the charter value. In estimating the charter value of a vessel outfitted for a sealing voyage in Bering Sea, consideration must undoubtedly be given to the fact that provisions were on board to sustain the crew and hunters during the period. The Black Diamond was provided with Indian hunters, and the cost of sustaining an Indian R., for one month is $5. There were 20 Indians aboard and the captain and mate. Provisions were landed R., 1780, line 463, line 25; R., 865, line 14. 29. at Clayoquot, where Alexander Frank conducted a trading station. The value of the provisions removed is not stated, but what remained were utilized for R., 1781, line another trip. 35. R., 1828, line 43. The Lily entered Bering Sea, July 25, 1889. She was seized by the United States revenue cutter R., 1816, line Richard Rush on the 6th day of August. Three hundred and thirty-three skins and the hunting spears R., 1817, line were taken by the cutter. The crew consisted of the captain, mate, 3 white men, and 25 Indians. 69. 15. The case of the claimant was submitted on the affidavit of Morris Moss, "the duly registered owner," and John Reilly, her captain. The Lily was ordered to proceed to Sitka. Her captain instead sailed for Victoria, arriving at that port on the 1st day of September, 1889. There is no evidence of any catch of seals made by the Lily after her seizure. This claim is also one of partial loss, and the claim is for charter value of the vessel from the 6th day of August, 1889, to the close of the sealing season, August 20 to August 25, beside the value of 333 seal skins and the spears of the Indians. The claim made "for illegal boarding, search, and arrest of vessel, $2,000," and the similar claim made in the case of the Black Diamond, can not be allowed. The allowance of any damages in the nature of punitive damages against a Government acting in entire good faith has been discussed at length in another part of the Argument. The items, "Belyea's bill, $250," "personal expenses and trouble of owner, $200," in these cases, are absolutely unsupported by evidence. There was no testimony of a contingent contract, even, with Mr. Belyea regarding either claim, and no evidence was adduced tending to show that the owner or his agent gave any time or expended any money in connection with either claim. The United States assert that Alexander Frank, a citizen of the United States of America, and a resident of the city of San Franciso, was the owner of the Black Diamond and the Lily at the time of their seiz ure, and that no damages can be awarded him by this High Commission. These claims are presented in the name of Morris Moss, "the registered owner." Morris Moss died some years ago. No representative of his estate was present at Victoria as a claimant before the Commission. The probate proceedings of his estate at Victoria R. 2001, line contain no reference to his ownership of the claims. 53. 34. Counsel for the United States requested counsel for R., 1806, line Great Britain to state whom they claimed to be the owner of the Black Diamond, and the counsel for Great Britain replied: So far as we are concerned, we find this vessel at the time of her seizure registered in the name of Morris Moss, and we claim for her whoever may be entitled to her; we are claiming on behalf of Great Britain, and we have proof that the vessel was registered in the name of Morris Moss. 41. The affidavit of Morris Moss, made as a basis for R., 1815, line the claim of the Lily, and his affidavit filed in connection with the claim of the Black Diamond before the Tribunal of Arbitration at Paris, contained in paragraph 1 of each affidavit the statement, "I am a British subject by birth, and the duly registered owner of the schooner Lily (Black Diamond) of the port of Victoria aforesaid." Alexander Frank was the only witness examined in these two claims, and he was called by telegram R., 1993. from San Francisco, where he resides, and examined on the last day of the session at Victoria. The testimony of this witness is brief, and a careful reading thereof in connection with the exhibits relating to these claims will satisfy the High Commissioners that he was the owner of these vessels at the time of the seizure, and the person the counsel for Great Britain had in mind when stating "we claim for her whoever may be entitled to her; we are claiming on behalf of Great Britain, and we have proof that the vessel was registered in the name of Morris Moss." Ex. 80, G. B.; p. 197. Ex. the registered owner. 112, G. B.; Exhibits, p. 376. Ex. No. 10, 211 of Ex The ships' registers disclose that Morris Moss was No other evidence was offered. The bill of sale, if any such bill of sale ever existed, is not in evidence. The register is only prima facie evidence of ownership. The question of the ownership of the Black Diamond and the Lily will be considered at the same time. The facts that establish Alexander Frank's ownership of one equally demonstrate his ownership of the other. In the year 1887 Alexander Frank and one Jacob Gutman were partners in business in the city of Victoria, owning three trading stations on the west coast of Vancouver Island, and operating three schooners in the sealing business-the Active, Alfred Adams, and the Black Diamond. Jacob Gutman died about the 1st of April, 1887. No. 8, p. On the 7th of November, 1888, letters of administrahibits; Ex. tion of his estate were issued to Alexander Frank, No.10,U.S. who, as administrator, made and filed affidavits relat8. Exing to the administration of the estate, all of which hibits, P. are contained in Exhibit No. 10, United States claim No. 8, pages 207 to 214, inclusive. claim No. p. 207, line 51. R., 1996, line 43. The United States contend that on cross-examination Frank was shown to be entirely unworthy of belief, and his testimony on direct examination can have no weight before this High Commission. Q. You did own at one time a half interest in the Lily, and you did own at one time a half interest in the Black Diamond, did you not? A. I did not own them; I claimed to own an interest in them. Q. By that you mean that you were not the registered owner? A. I claimed to own an interest in them to protect my interest when I found that the firm was insolvent. There was nobody to dispute my right in them. Q. I asked you if they were partnership property when you were in partnership with Jacob Gutmant A. They were not. Q. And you and Gutman never jointly owned the Lily and the Black Diamond? A. He bought them. Q. Now, answer the question, did you or did you not? A. I tell you we never owned them jointly. It was after his death when I claimed them, having found out that he was lost, to protect my interest. The name of the Alfred Adams was not changed Exhibits, to Lily until the 25th day of March, 1888. bottom p. 197. The Argument in behalf of Great Britain admits that Alexander Frank was equally interested in the venture of the Alfred Adams at the time of her seizure in 1887, and the evidence upon which that admission is made is the affidavit of Moritz Gutman, the Exhibits, sole heir of Jacob Gutman, that the Alfred Adams was owned by the said firm of Gutman & Frank. On the 1st day of November, 1887, Frank made Exhibits, an affidavit (found at page 210 of exhibits, line 50), 40. stating: 1. That for two years and upward one Jacob Gutman had, until the date of his supposed death, hereinafter mentioned, been in partnership with me in a trade or business carried on by us at Johnson street, in the said city of Victoria, trading in the name or style of Gutman & Frank, as merchants and Indian traders. 2. That in the course of our said business our said firm possessed three schooners. 3. That in the month of February in the present year the said Jacob Gutman sailed from the port of Victoria, British Columbia, aforesaid, in one of our said schooners, known by the name of the Black Diamond. p. 214, line p. 212, line He also made an affidavit on the 21st of October, Exhibits, p. 1888, in which this statement was made: That the said Jacob Gutman was, at the time of his decease, a partner with me in a business carried on by us in the city of Victoria, as merchants and Indian traders, and that the estate of the said Jacob Gutman consists of one half interest in the property of such partnership. That the account hereunto annexed, marked A, is a true account of the assets and liabilities of the estate of said Jacob Gutman, deceased. The first two items in the schedule marked A are as follows: The deceased is entitled to one-half interest in the follow 207, line 46. Exhibits, p. 208, line 32. |