The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1893-01-13
THE POACHERS LOSE.
Text of the Decision Against
the Oscar and Hattie.
cONFlSCATED TO THE CROWN.
The Schooner Killed Seals in Boring
Sea In Violation OF the Modus VII
<vcndi, Then Lied About 1t.

delivered on the 5tn INST. IN the cel ebrated
oscar AMI Hattie" Gaze. by Sir NJ. B.
Begbie. C. j., sitting as local judge in
admiralty at Victoria:
In this case the court is asked to con-
denim the Oscar and Hattie for contra
vention of the Boring sea act. 1891, chapter
70 section !, subsection b: "A British
ship shall not be used in such killing,
hunting or attempt" i. e., killing or hunt
ing or tempting TO kill or hunt seals in
the prohibited limits. BY subsection of
the same section Of the act: eff British
ship be found within the prohibited limits
having on board fishing or shooting inn
Elements or seal skins, etc, the onus
shali be on the owner or master to show
that the ship was not used or employed in
contravention of the act"
The Oscar and Hattie left Victoria on a
sealing voyage on January 90 last, and
took a new departure from Yaquina. in
Oregon, on February IS. She was seized
on Wednesday. August 81 last (schooner's.
ie Victoria, time. disregarding the $50
degrees longitude limit) in Gotzeb har-
Dor, on the north side OF Atu island, and
%. within the prohibited waters: having
on board full equipment Of arms and
crew and 276 seal skins, and admittedly
In all respects within the express terms of
subsection s. And the sole defense is
that the schooner was in that harbor. and
In fact in Bering sea at all, solely for the
purpose Of procuring water. for want of
which she was quite unable to prosecute
her return voyage to Victoria. The de.
fense admits that the schooner had on
June II. 1892, been duly warned not 20 en-
ter Bering sea to fish there, and served
with a copy Of the act The captain being
examined on commission decia that
the schooner had not entered the prohib-
tied limits at all until the day before
the seizure. and then only in search
l.
board had been secured outside those
limits, viz: little TO the soath ward of
Conner island. nearly 200 miles from Atu
and about 100 miles {roUghly speaking)
from the dividing line claimed by the
United States, and which bounds the fol-
hidden waters on the west. as the chain of
the Aleutian islands bounds them on the
south. That finding seals scarce and the
weather bad. and being besides short of
water, he being then about forty or fifty
miles off the southeast end Of Copper
island determined TO abandon further
hunting and return to Victoria; but in
order to procure water, he bore away for
Gotzeb harbor. in Atu island, which he
had known before of, and where he moored
on Tuesday evening. August go at $50
=. III. The next morning he commenced
watering, and took 500 gallons on board
that day, when at 8 p. m. he was seized by
On officer from the United States ship
Mohican.
In support OF these allegations there
were produced Capt. Turtles deposition.
the log of the Oscar and Hattie, and
Joseph Brown, hunter. The evidence of
this last witness was almost perfectly i'm
material. He probably knew nothing
he certainly said nothing-as to the locali-
ties visited by the schooner in the course
Of the summer Probably none of the
crew except the master and the mate could
speak with any knowledge of the matter,
but only what they had heard from these
two; and the mate was not examined.
There seemed TO be during the argument
some misconception on both sides as to
the nature of the charge and the facts
which would exonerate the schooner. The
prosecution seemed to treat the presence
within the forbidden limits of a British
ship fully equipped for sealing as sub
stantive offense. That is not so. A
perfectly innocent man may be
bound standing over a newly slain
corpse with bloody knife in his
hand. That would arouse vehement
suspicion, but is not a crime in itself.
Again, the defense seemed to suppose that
II they showed that the schooner was not
actually hunting when seized, but, on the
contrary. had very good and innocent
reason for being there at that time, she
was bound 10 be returned to the owners
That assumes in favor of the ship the mar
rover meaning of the words of the act.
For the question then Immediately arises,
do the words FUSED or employed in contra
vention of the act" refer to the use or en-
pioyment on that particular occasion; or
do they not rather mean employment gen.
orally on the voyage. / think II must
have the latter and the wider meaning.
For otherwise any ship seized in Boring
sea. especially If near the land (unless
seized in active pursuit of the seals). could
easily contrlve an excuse-none perhaps
more easily contrived or established than
scarcity of vater-to show that he had,
at the time of capture, q lawful, indeed
necessary intention. And in the case
of seizure of ship actually engaged in
hunting. II seems quite improbable that
the legislature should enact that merely
en- inference, liable to rebuttal is to be
drawn from that. | think the section
means that ship seized with arms. etc,
WAS TO be deemed to have offended against
the act. and torteiIabie, unless the CON
trary were shown. The particular pur-
pose on which the ship Was engaged when
seized may have been, and probably would
be. OcCa~loned by. or necessary for, the
prosecution of her general purpose; of
which, indeed. il thus becomes a part;
and, though Indifferent TO Itself becomes
Illegal. Just A. much Rs lowering a boat if
performed az part Of the illegal use or
employment of the ship IN short, if the
schooner was short of water on August 81
u was necessary for her to take a fresh
supply. whatever she bad been doing or
wSs about 10 do whether engaged iii seal
ing or on her return To Victoria: and the
taxing OF sucn supply throws no light
Whatever upon her plans or purposes or en-
poyment. The question therefore recurs:
What il the evidence offered in rehuttal?
Al The end OF the argument / reserved nv
decision; lntimating 1T the same time that
The conduct 81 the schooner had at the
very east been so suspicious as fully TO
saFFsn' the seizure on the part of the
haNa officers OF both services. | wished
also 10 examine the log and the courses it
Records Tor the whole voyage. about which
Feal'y nothing had been said in argument.
A"d The log pro iuced certainly throws a
'ehe slsht on the truth OF the case. In
NaI'- turtles evidence the only statement
!" cA'iletAhon Il IN ambiguous termS-"i
aver lowered boa; ia Behring'S sea-" IS
Us expression. witch he again repeats,
snd ihlrd time adopts when repeated to
nv" ny ms c"unSe.. executing. OF course,
'ue boats IN "otzeh harpOr on the 31.t of
Il august, lie uses no other express
s"h Of denial | DO not wish TO at
s1"nte 10 nim any desire IL deceive the
court or his owners. bat many o. his state
/ 1Heits-aear.v Sli NJ them-a-e so hatly
tohtIadictsG hy The statements in the log,
~ commander Johnson and even by his
4 Own evidence, that 81 his words are 10 ne
| saFeiu!'y Weighed. ami il = impossible 10
| gary them further than the drv meaning
/ 'Heg express II - evident that he does
II Hotr IN express terms. contradict the
4 large tNaf lie AIS IA i{r~'ue sea strprpT,r-