"And whereas the prices that are claimed, viz., $6 for a bag of rice, and $5 for a barrel of potatoes, $7 for a barrel of onions, $3 for a tin of lard, and $10 for a ton of coal, when compared with the market prices at Caracas, do not seem unreasonable, the sum of $308 will have to be paid for them.

"As for the further $106.40 claimed for provisions and ship stores, whereas there is given no proof of these provisions and stores being taken by or delivered to the government, they cannot be allowed.

"For passages since April 1, 1902, claimant claims $224.62, and whereas evidence shows that all these passages were given on request of the government, the claim has to be admitted, and whereas the prices charged are the same that formerly could be charged by the Orinoco Shipping and Trading Company, these prices seemed equitable;

"Wherefore the Venezuelan government will have to pay on this item the sum of $224.62.

"As to the expenses caused by stoppage of the steamer Bolivar at San Felix when Ciudad Bolívar fell in the hands of the revolution

"Whereas this stoppage was necessitated in behalf of the defence of the government against revolution;

"And whereas no unlawful act was done nor any obligatory act was neglected by the government, this stoppage has to be regarded, as every stoppage of commerce, industry, and communication during war and revolution, as a common calamity that must be commonly suffered and for which government cannot be proclaimed liable:

"Wherefore, this item of the claim has to be disallowed.

"And now as for the claim of $61,336.20 for losses of revenue from June to November, 1902, caused by the blockade of the Orinoco:

"Whereas a blockade is the occupation of a belligerent party on land and on sea of all the surroundings of a fortress, a port, a roadstead, and even all the coasts of its enemy, in order to prevent all communication with the exterior, with the right of transient' occupation until it puts itself into real possession of that port of the hostile territory, the act of forbidding and preventing the entrance of a port or a river on its own territory in order to secure internal peace and to prevent communication with the place occupied by rebels or a revolutionary party cannot properly be named a blockade, and would only be a blockade when the rebels and revolutionists were recognized as a belligerent party;

66

And whereas in absolute equity things should be judged by what they are and not by what they are called, such a prohibitive measure on its own territory cannot be compared with the blockade of a hostile place, and therefore the same rules cannot be adopted;

"And whereas the right to open and close, as a sovereign on its own territory, certain harbors, ports, and rivers in order to prevent the trespassing of fiscal laws is not and could not be denied to the Venezuelan government, much less this right can be denied when used in defence not only of some fiscal rights, but in defence of the very existence of the government;

"And whereas the temporary closing of the Orinoco River (the so-called 'blockade ') in reality was only a prohibition to navigate that river in order to prevent communication with the revolutionists in Ciudad Bolívar and on the shores of the river, this lawful act by itself could never give a right to claims for damages to the ships that used to navigate the river;

"But whereas claimant does not found the claim on the closure itself of the Orinoco River, but on the fact that, notwithstanding this prohibition, other ships were allowed to navigate its waters and were despatched for their trips by the Venezuelan consul at Trinidad, while this was refused to claimant's ships, which fact in the brief on behalf of the claimant is called ' unlawful discrimination in the affairs of neutrals,' it must be considered that whereas the revolutionists were not recognized belligerents they cannot properly here be spoken of 'neutrals' and 'the rights of neutrals'; but that "Whereas it here properly was a prohibition to navigate;

"And whereas, where anything is prohibited, to him who held and used the right to prohibit cannot be denied the right to permit in certain circumstances what as a rule is forbidden;

"The Venezuelan government, which prohibited the navigation of the Orinoco, could allow that navigation when it thought proper, and only evidence of unlawful discrimination, resulting in damages to third parties, could make this permission a basis for a claim to third parties;

"Now, whereas the aim of this prohibitive measure was to crush the rebels and revolutionists, or at least to prevent their being enforced, of course the permission that exempted from the prohibition might always be given where the use of the permission, far from endangering the aim of the prohibition, would tend to that same aim, as, for instance, in the case that the permission were given to strengthen the governmental forces or to provide in the necessities of the loyal part of the population;

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'And whereas the inculpation of unlawful discrimination ought to be proved;

"And whereas, on one side, it not only is not proved by evidence that the ships cleared by the Venezuelan consul during the period in question did not receive the permission to navigate the Orinoco in view of one of the aforesaid aims;

"But whereas, on the other side, evidence, as was said before, shows that the government had sufficient reasons to believe claimant, if not assisting the revolutionists, at least to be friendly and rather partial to them, it cannot be recognized as a proof of unlawful discrimination that the government, holding in view the aim of the prohibition and defending with all lawful measures its own existence, did not give to claimant the permission it thought fit to give to the above-mentioned ships;

"And whereas, therefore, no unlawful act or culpable negligence on the part of the Venezuelan government is proved that would make the government liable for the damages claimant pretends to have suffered by the interruption of the navigation of the Orinoco River, this item of the claim has to be disallowed.

"The last item of this claim is for $25,000, for counsel fees and expenses incurred in carrying out the above examined and decided claims;

"But whereas the greater part of the items of the claim had to be disallowed;

"And whereas in respect to those that were allowed it is in no way proved by evidence that they were presented to and refused by the government of the Republic of the United States of Venezuela, and whereas therefore the necessity to incur those fees and further expenses in consequence of an unlawful act or culpable negligence of the Venezuelan government is not proved, this item has, of course, to be disallowed.

"For all which reasons the Venezuelan government owes to claimant:

For detention and use of the steamers Masparro and Socorro, 36,000 pesos,

"While all the other items have to be disallowed."

United States
Gold.

$27,692.31 308.00

224.62

$28,224.93

The date of this award ($28,224.93) was February 20, 1904.

VI

From the foregoing we see that through the "whereases" and "wherefores" of Mr. Harry Barge Dictator Castro was enabled to pay a just debt of more than half a million dollars with the paltry sum of $28,225. Even for this latter sum the claimant would have to wait several years, until the claims of England, Germany, Italy, and other foreign powers were satisfied, under the award of The Hague Tribunal.

In this case Mr. Olcott was technically weak, so far as his claims are concerned to a monopoly of the right of navigating for foreign commerce the Macareo and Pedernales channels. There is absolutely no moral doubt that it was thoroughly understood between him and Castro that the old law closing these channels to foreign navigation should be continued, and that the Orinoco Steamship Company should enjoy for the remaining period of the concession and its extension, i. e., to June 8, 1915, the navigation of those channels as theretofore. This was in good faith the contract, and the six years' extension to June 8, 1915, was the chief consideration for releasing more than half a million dollars of claims against Venezuela; but it was not put expressly into words and figures in that form, and good faith alone has no binding force or effect in Latin America.

It is therefore easy to be seen how a judge trained to regard merely the technicalities of the law, might rule against Mr. Olcott's contention with reference to the exclusive right of navigation of these two mouths of the Orinoco River.

But Castro cancelled this six years' extension, as above set forth, by the decreta of December 14, 1901, without even a pretence of judicial action. Now, if this six years' extension of the concession was, as the evidence showed, the chief consideration for the cancellation of claims aggregating more than half a million dollars against Venezuela, a commission practising equity would hold that prima facie the extension was worth nearly as much as the amount of said claims, and that on its being revoked said claims should be in great part revived.

Barge's allegation that the Venezuelan government had not been notified of the transfer "of credits" from the Orinoco Shipping and

Trading Company, Limited, to the Orinoco Steamship Company, which, in fact, was merely a reorganization of the old concern, and that therefore the Venezuelan government was not liable to the latter company, is a dishonest quibble, designed to relieve Venezuela wholly from the payment of its just debts, because, after the reorganization took place, naturally the Orinoco Shipping and Trading Company, Limited, went out of existence, and hence, if an attempt should be made in its name to prosecute the claims Barge threw out on this ground, some other umpire would doubtless arise to decide that the concern had gone out of existence, and therefore had no claims to prosecute.

Comments on other portions of Barge's decision are unnecessary, for they are self-evidently infamous. If Bainbridge had been a man of any sense of honor or dignity of character, he would instantly have resigned from a commission so constituted as to be capable of rendering such an indecent judgment. This decision is a fair sample of many others equally atrocious.

CHAPTER XXIII

THE GREAT VENEZUELAN RAILROAD CASE-THE WENZEL CASE

THE

HE German-Venezuelan Commission of 1903 consisted of Hermann Paul Goetsch, German Commissioner, Nicomedes Zuloaga, Venezuelan Commissioner, and Henry M. Duffield, of Detroit, Michigan, Umpire. As the two Commissioners rarely agreed, most of the claims were referred to Umpire Duffield.

In remarking upon this umpire's amazing decisions, it suffices to say that the contentions of the Germans were almost invariably regarded with disfavor. Let us glance here at two of his most atrocious opinions.

I. THE GREAT VENEZUELAN RAILROAD

This, the most important railway in Venezuela, extends from Caracas through a generally mountainous region to Valencia, a distance of about one hundred and fifty kilometres. The road is exceedingly well built and maintained. Even where conditions have been normal, its engineering problems have been serious; and there are from sixty to seventy tunnels and more than a hundred iron or steel viaducts along the eastern half of the line.

During the building of this road, in the early days of Crespo's domination, there was practically continual revolution, and construction work was thus rendered almost impossible. After the road had gone into operation it was many times seized, now by revolutionists, now by government troops, its rolling stock destroyed, its roadbed torn up. Large sums due the railway from the Venezuelan government were never paid. One Dictator after another would seize the road and operate it to suit his convenience, never thinking of paying for the destruction of roadbed, tunnels, viaducts, bridges, rollingstock, stations, etc., that was caused by these acts of violence and vandalism.

In November and December, 1901, a revolution, which later proved to be of mighty force, was breaking out all over Venezuela against that intolerable military despot, Cipriano Castro. The road's manager now received anonymous threats (which he imputed to the revolution