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The facts on which shall depend the decision of the questions stated in Article I shall be ascertained in such manner as the Tribunal may determine.
The Emperor of Russia shall be invited to name and appoint from the members of the Permanent Court of the Hague three arbitrators to constitute the Tribunal which is to determine and settle the ques tions submitted to it under and by virtue of this Agreement. None of the arbitrator's so appointed shall be a citizen or subject of any of the Signatory or Creditor Powers.
This Tribunal shall meet on the first day of September, 1903, and shall render its decision within six months thereafter.
The proceedings shall be carried on in the English language, but arguments may, with the permission of the Tribunal, be made in any other language also.
Except as herein otherwise stipulated, the procedure shall be regulated by the Convention of the Hague of July 29, 1899.
The Tribunal shall, subject to the general provisions laid down in Article 57 of the International Convention of July 29, 1899, also decide how, when and by whom the costs of this arbitration shall be paid.
Any nation having claims against Venezuela may join as a party in the arbitration provided for by this Agreement.
Done at Washington this seventh day of May, 1903.
HERBERT W. Bowen. (SEAL.)
MICHAEL H. HERBERT The undersigned nations having claims against Venezuela hereby join with her as parties in the arbitration provided for, in the foregoing protocol. For the United States of America
John HAY For the Republic of Mexico, (SEAL.]
M. DE AZPIROZ. For Sweden and Norway. (SEAL.] MAY 27, 1903.
A. GRIP. L'Ambassadeur de France, dûment autorisé et agissant au nom de son Gouvernement, adhère au Protocole ci-dessus, sous réserve qu'il est bien entendu que l'article IV du dit protocole ne fera pas obstacle à l'application de la disposition de l'article 38 de l'acte de La Haye, aux termes de laquelle c'est le tribunal arbitral qui décide du choix des langues dont il fera usage et dont l'emploi sera autorisé devant lui. 1 JUIN 1903 SEAL.]
JUSSERAND Le Ministre de Belgique, dûment autorisé et agissant au nom de son gouvernement adhère au protocole ci-dessus. 12 JUIN 1903 (SEAL.]
BN MONCHEUR. Le Ministre des Pays-Bas, dûment autorisé et agissant au nom de son Gouvernement adhère au protocole ci-dessus. WASHINGTON, le 13 Juin, 1903. [SEAL.]
REJECTION OF CLAIMS OF BRITISH SUBJECTS ON ACCOUNT OF LOSSES INCURRED THROUGH ACTION OF UNITED STATES TROOPS IN CUBA AND THE PHILIPPINES.
Sir Michael Herbert to Mr. Play.
Washington, December 31, 1902. DEAR MR. SECRETARY: Lord Pauncefote reported to His Majesty's Government the adverse decision of the United States Government in the matter of certain claims made against them by British subjects on account of losses incurred through the action of United States troops in Cuba and the Philippines.
The rejection of these claims, which may all fairly be held to belong to the same class, is based on a strict interpretation of the principles of international law, and His Majesty's Government are not prepared to dispute the decision arrived at by the United States Government with regard to them, but they have nevertheless instructed me to bring unofficially to your notice certain considerations on the subject which appear to be worthy of attention.
Not the least of the calamities resulting from a state of war is the loss caused thereby to the subjects or citizens of neutral powers possessing property or engaged in business in the affected area. It often happens that destruction of that property or damage to that business is a matter of military necessity to one of the belligerants, and as such no compensation can be claimed on strictly legal grounds. The hardship in such cases is nevertheless so manifest that it has become usual for the Government whose troops have been concerned to grant a reasonable indemnity to the sufferers, not as a right, but as a matter of grace and favor.
This practice was lately exemplified when His Majesty's Government granted a sum of money to the subjects and citizens of foreign powers who had been compelled by the British military authorities to leave South Africa on account of the war, in order to indemnify them for any loss they might have suffered through their expulsion. This measure, from which, as you are aware, United States citizens benefited to the extent of £6,000, was not one which His Majesty's Government were obliged to take by the rules of international law, but was adopted entirely ex gratia.
It appears to His Majesty's Government that these claims of British subjects in Cuba and the Philippines belong to the class described above, in view of the grave and peculiar hardship suffered by the claimants, and they have instructed me once more to approach you unofficially with regard to them, and to express the earnest hope that Congress may be disposed to consider the subject and grant a reasonable sum by way of indemnity as a matter of grace and favor.
The details of all but one of these claims are already familiar to the United States Government, and I will not trouble you with a recapitulation of them, but I venture to transmit a memorandum setting forth the special circumstances in each case wbich would appear to entitle the claimant to favorable consideration.
The remaining claim, that of Mr. J. Walter Higgin, is now presented for the first time, and I have accordingly added a note giving details regarding it at the end of the inclosed memorandum. I am, etc.,
MICHAEL H. HERBERT.
Memorandum on claims of certain British subjects against the United States Government
on account of losses incurred throu the action of United States troops in Cuba and the Philippines. 1. Claim of Mr. William Ilardman ( £93). This claim is for property destroyed through the action of United States troops at Siboney, Cuba, on July 28, 1898.
It was recommended to the favorable consideration of Congress in a special message of the President on December 13, 1901, but was adversely reported by the Senate Committee on Foreign Relations on January 23, 1902.
The rejection of the clain by the committee is based solely on the absence of legal liability on strict principles of law, but it would seem that the case is one in which compensation might very well be granted as a matter of grace and favor, especially in view of the fact that it was recommended to the favorable consideration of Congress, without qualification, in a special message from the President.
2. Claim of the Philippines Mineral Syndicate ($113,776.72 Merican).
This claim is for losses incurred owing to damage inflicted on the property of the syndicate in the neighborhood of Mambulao, province of Camarines del Norte, Luzon, through the policy pursued by the United States military authorities.
There are certain special circumstances in connection with this case which, while they do not perhaps afford legal ground for demanding compensation, are yet of such a nature as to entitle it to the consideration of Congress as a matter of grace and favor. Although these facts are already in the possession of the United States Government, they may be briefly recapitulated.
In March, 1899, the United States authorities were warned that the nature of the syndicate's property was such as to invite attack and that some of the mineral deposits were of such a kind as to afford an easy revenue for the benefit of the insurgents. In thus advising the authorities and so rendering, as it would appear, a signal service to the United States Government, the syndicate urged that steps should be taken to protect their property and to prevent the insurgents from deriving advantage from it in the prosecution of hostilities, and they thus acted not only in accordance with their own interest, but likewise with that of the United States.
Although thus apprised that there was a valuable property belonging to the citizens of a friendly foreign power, the owners of which were prepared to aid the United States forces in protecting it, and incidentally in preventing the insurgents from obtaining an advantage in conducting their hostile operations, no effort was made by the United States military authorities to communicate with the agents of the syndicate.
On July 8, 1899, two United States gunboats entered the Bay of Mambulao, and the chief engineer of the syndicate went out in a boat to meet them. The vessels immediately opened fire, without giving him an opportunity to disclose his identity, character, or purpose, so that he was obliged to retire in peril of his life.
There were at that time no insurgents or other hostile forces at Mambulao, and the peaceful inhabitants of the village instantly fled. After doing a little damage to the village and without effecting or attempting to effect a landing or making any inquiries or inviting any communication with the syndicate's agents after the repulse given to the chief engineer, the gunboats steamed out of the bay.
This demonstration of military force, followed by immediate abandonment, had the consequence of attracting to the scene the hostile Tagalos, who, seeing the place abandoned alike by the peaceful inhabitants and by the military authorities, entered the district, plundered and destroyed the property of the syndicate, and robbed the European employees even of their personal effects. Repeated requests made by the syndicate for military protection or for the privilege of arming the employees, so as to enable them to protect themselves and their employers' property having been alike refused by the United States military authorities previous to this time, no effectual resistance could be offered to the insurgents; and the servants of the syndicate remained at the mercy of the latter, who prevented their egress, while the United States military authorities maintained a blockade and prevented them from securing assistance or from communication of any sort with the outside world.
It further appears that the known friendly attitude of the syndicate and its agents to the United States was the cause of the needless and malicious destruction by the insurgents of such of the syndicate's property as was not stolen.
3. Claim of Messrs. Hoskyn & Co. ($207,416.30 Mexican).
This claim, the details of which have only reached His Majesty's embassy since the presentation and rejection of the two preceding ones, has never hitherto been presented to the United States Government. It is for compensation for the loss of 35 cases of whisky stored in the warehouse of Messrs. Hoskyn & Co. at Iloilo, which were destroyed by fire during the bombardment of that town by United States forces on February 11, 1899. Details respecting it will be found at the end of this memorandum.
These three claims are all founded on the same circumstances, and grow out of the destruction of the property of the claimants at the time of the bombardment of Iloilo.
The United States Government are already in possession of full particulars regarding the first two, and it is not therefore necessary to recapitulate the circumstances in detail; but the events which gave rise to all three claims would appear to be such as would entitle the claimants to compensation er gratia.
On February 10, 1899, the officer commanding the United States forces before Iloilo issued a notice to the foreign consuls in that town in the following form:
“In view of anticipated hostility, notice is hereby given you to cause all persons who are under your protection to seek a place of safety before 5 a. m. Sunday, the 12th instant. "Hostilities may commence at any time after that hour and date.”
He also sent an ultimatum to the Filipinos to the effect that, should they attempt to strengthen their defenses or throw up intrenchments, they would be attacked at once, but he failed to inform the consuls that this ultimatum had been sent.
As a matter of fact the Filipinos did make this attempt, with the result that the United States forces began the bombardment nearly twenty-four hours before the time mentioned in the notice to the consuls.
It is plain from the wording of the above notice that the United States forces were the attacking party, and that in the absence of the attack made by them no hostilities would have ensued.
The effect of the notice and ultimatum on the insurgente appears to have been to cause them to use the time at their disposal to collect materials for the destruction by fire of the town, which they felt themselves unable effectually to defend; for, when the United States forces attacked, they encountered no resistance from the insurgents, who at once occupied themselves with the retaliatory measure of setting fire to the town and the property it contained.
It is clear, therefore, that had ihe United States forces attempted to take possession of the town on the 10th instant they could have done so without effective opposition, and that the destruction of the claimants' property would thus have been prevented,
that by postponing the attack in the first instance they gave the insurgents the chance of preparing for the destruction of the claimants' property, and that by subsequently attacking before the time mentioned in the notice they deprived the claimants of the opportunity of protecting that property.
The terms of the notice led the claimants to believe that they would not be subject to any of the effects of a bombardment until 5 a. m. on February 12, 1899; and by the precipitation of the attack by nearly twenty-four hours their property, not yet having been placed in safety, was left at the mercy of the insurgents, who, of course, carried out their prearranged plan of firing the town by just so long in advance of the time when it would otherwise have occurred.
While the right of military authorities thus to proceed in advance of their notice, with or without warning, can not be disputed, the issue of the notice and its subsequent violation undoubtedly placed the claimants in a worse position than if no notice had been given; and the further notice or ultimatum issued to the Filipino leaders, and not communicated to the foreign consuls, had the effect of placing the neutral aliens at a greater disadvantage in the attack by the United States forces than the hostile insurgents.
NOTE ON THE (LAIM OF MR. J. WALTER HIGGIN.
This claim is for the loss of a consignment of whisky stored in Messrs. Hoskyn's warehouse at Iloilo, and destroyed by fire at the time of the bombardment of that town by the United States forces. The arguments advanced above in favor of the assignment of compensation ex gratia to Messrs. Hoskyn and Stevenson apply equally to this case.
Mr. Higgin himself addressed the United States Government on March 21, 1900, submitting his claim, and explained that his delay in doing so had been caused by the fact that he had expected his claim to be included in that of Messrs. Hoskyn, and had only just been informed that no claims on consignments would be admitted by the United States Government. He inclosed certain documents bearing on the case.
Orr September 21, 1900, Mr. Higgin received a letter from the United States Gov. ernment forwarding reports from United States officers in the Philippines respecting his case, and also a copy of a circular letter from General Otis, when military governor, on the subject of the claims arising out of the bombardment of Iloilo, in which it is stated that the claims of foreign subjects must be presented through the diplomatic channel. Britisil EMBASSY,
Washington, December 31, 1902.
Mr. Tlay to Sir Michael Herbert.
DEPARTMENT OF STATE,
Washington, January 27, 1903. My DEAR MR. AMBASSADOR: I have received your personal note of the 31st ultimo, with inclosure, relating to certain claims of British subjects which have been brought to this Government's attention from time to time and which arose out of the operations during the recent war with Spain.
The Department concurs in the expression contained in your note that “not the least of the calamities resulting from a state of war is the loss caused thereby to the subjects or citizens of neutral possessing property or engaged in business in the affected area. losses sustained by His Majesty's subjects mentioned in the memorandum accompanying your note come within the category of cases above described, in which, as you say, “ It often happens that the destruction of that property or damage to that business is a matter of military necessity to one of the belligerents.” And such destruction may sometimes be wantonly inflicted by insurgents, which, though equally