Josephine K.

Early one evening last week a Coast Guard searchlight fell upon a barge unloading somewhere near Ambrose Light-ship in lower New York Bay. A speed boat cast off from the barge slipped away toward New Jersey. A low-slung power cruiser cast off, headed for the Brooklyn shore. The barge and a tug lay to.

Immediately suspicious, Chief Boatswain's Mate Karl E. Schmidt commanding the Coast Guard boat CG-145 fired three blank shells as a warning for the fugitives to stop. The warning was ignored. He then turned his searchlight on his laterally striped Coast Guard ensign and fired three shots across the fleeing power cruiser's bow. Still she paid no heed. The next shot pierced the vessel's pilot house. She hove to. Running alongside, Mate Schmidt found she was the Josephine K. out of Digby, Nova Scotia with 500 cases of liquor aboard. Unconscious in the cabin lay her captain, William P. Cluett, smashed by the Coast Guard shell, which had split the ship's wheel. Capt. Cluett was taken ashore where he died without regaining consciousness.

Because it was another international affair, because the shooting occurred at a questionable distance offshore, because Prime Minister Bennett of Canada was just about to visit President Hoover in Washington (see p. 11), the official U. S. investigation was prompt and thorough. Assertions by some members of the Josephine K.'s crew that Mate Schmidt was drunk were disproved to the satisfaction of the Coast Guard board. As in the still unsettled case of the I'm Alone (TIME, April 1, 1929), the main question was: Did the shelling and seizure occur within the jurisdiction of the U. S.?

Twelve Miles. Outside the three-mile limit (indisputedly U. S. domain) lies the twelve-mile limit, claimed by the U. S. for "search & seizure" under the 1922 Tariff Act. Forty-eight hours after the Josephine K. shelling, F. A. Bierkett, executive officer of the Coast Guard cutter Sebago, was ordered by Washington to determine the point at which the chase ended. His findings narrowly justified Mate Schmidt; the spot was fixed at 11.7 mi. from nearest land.

Hour's Sail. As specified by the 1924 British-American extraterritorial seizure convention, a rumrunner may also be boarded within one hour's sail of the coast by the boats concerned. Well aware of the potential technicalities of the Josephine K. case, the board of inquiry had the captured ship ballasted with scrap iron, staged a race with the CG-145. The Josephine K. made 9.55 knots, the patrol boat 11.15. Again the evidence was favorable to the Coast Guard. Sea lawyers also remembered the "hot pursuit" clause in the 1924 agreement, but whether a hot pursuit is limited to within an hour's sailing, or whether it may extend onto the high seas is a moot point. Coast Guardsmen felt they were within their rights when they sank the I'm Alone 200 mi. out in the Gulf of Mexico. Canada felt otherwise.

Precedent. As yet there is no clearly defined precedent covering incidents such as those of the I'm Alone and Josephine K. Should the Canadian Government protest Captain Cluett's killing, the next step would be to appoint a commissioner from each country to arbitrate. Justice Van (See col. 3) Devanter of the U. S. Supreme Court and Justice Duff of the Canadian Supreme Court have yet to settle the I'm Alone case.

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