"a decisive note, regarding which there can be no misunderstanding. will become necessary." His suggestion was approved, and he was instructed to say to the Nicaraguan Government, as he did in a note of July 28, 1900, that "only a straight forward disposition of this matter, in accordance with the understanding heretofore existing and reported by you, would be acceptable to the Government of the United States." August 2, 1900, he was further instructed as follows:

"The Department concurs in your view of the matter. The United States Government has not forgotten the understanding between the two Governments with reference to the repayment of the customs dues deposited with the British consul. It expects that understanding to be carried out without delay by the repayment to the American merchants of the moneys deposited by them with the British consul pending the settlement of the controversy. You will, if necessary, now demand of that Government the return of said moneys and notify it that the judgments rendered by Judge Roman, and which he has notified the merchants to pay, are simply null and void and will receive no consideration or respect from the Government of the United States.

"This Government has been anxious from the outset to afford a friendly solution to the controversy, in accordance with the principles of plain good faith and honest dealing between government and government, and in so doing has constantly sought to bring about the result which could be least injurious to the Government of Nicaragua. It can not conceive that the Government of Nicaragua is in its turn inspired by any less high and honorable purposes, and it can not therefore admit, even by way of conjecture, that the Government of Nicaragua is privy to the action attempted by Judge Roman. Nevertheless, the course of the proceedings in this matter, in painfully marked contrast with the professions of the Nicaraguan Government, can not pass unnoticed, and the controversy has reached the stage where it can be settled only by action in accordance with the just expectation of the United States.

"The interested merchants should be advised that in the event of a renewal of any attempt to enforce the judgment they should still refuse to pay." c

Prior to the receipt of this dispatch by Mr. Merry the Nicaraguan Government requested the British consul to return the deposit to the merchants, which was done."

a For. Rel. 1900, 814-815.

For. Rel. 1900, 816, 819.

Mr. Hay, Sec. of State, to Mr. Merry, min. to Nicaragua, Aug. 2, 1900, For. Rel. 1900, 820.

d For. Rel. 1900, 821-823. See supra, § 21.

A dispute arose between John D. Metzger & Co., an American firm, and the municipality of Port au Prince, owing to the Metzger's case. failure of the latter to carry out a contract to furnish the firm with a supply of water for running a mill. Metzger & Co. brought the dispute to the attention of the United States, and in an interview with the solicitor of the Department of State at Washington, which was confirmed by a note of the following day, the Haytian minister stated that he had informed his Government of Mr. Metzger's grievances and that the minister of foreign affairs had written that the matter had been settled. The report of a settlement proved to be an error. It was held that the arrangement to settle Metzger & Co.'s grievances, which was promptly accepted by the Haytian minister of foreign affairs, whose assurance in that regard was conveyed to the United States through the Haytian minister at Washington, "constituted a diplomatic agreement between the two countries which, upon settled principles of international law, should have been carried into effect." It was claimed indeed, 'on the part of the Haytian Government, that the arrangement amounted only to an agreement that that Government would use its good offices with the municipality of Port au Prince. It was held, however, that the arrangement amounted to much more than that. When the grievance was called to the attention of the Haytian minister at Washington and reported by him to the minister of foreign affairs, no claim was made that the municipality alone was responsible and no attempt was made to limit the authority or responsibility of the Government. "On the contrary, the [Haytian] minister and secretary [of foreign affairs] promptly assumed responsibility for the grievance and assured the Government at Washington that it had been rectified. It can not be that good faith is less obligatory upon nations than upon individuals in carrying out agreements. It is now strenuously urged that the Government of Hayti had no authority over the commune of Port au Prince, and must, in its relations with the commune, have limited its interference to friendly advice and suggestions. I do not understand that the limitations upon official authority, undisclosed at the time to the other Government, prevent the enforcement of diplomatic agreements. The question came before the Chilean claims commission created by the convention of August 7, 1892, between the United States and Chile, in which a claim was made upon a contract entered into by the United States minister in Chile, in making which the Government of the United States claimed the minister had no authority and denied responsibility, claiming further that the agreement was in violation of the statutes of the United States, and that the plaintiff had a remedy in the United States courts. The commission decided unanimously that it was immaterial whether the minister had exceeded his authority or not, as he had made the promise as the representative of the H. Doc. 551-vol 644

United States in the name of his Government, which, according to the rules of responsibility of governments for acts performed by their agents in foreign countries, can not be repudiated. In the present case there is no claim that the minister was unauthorized to make the diplomatic representations stated. On the contrary, he was only carrying into effect the instructions of his Government. The learned commission referred, in support of their decision, to Calvo Dictionaire de Droit International, Volume II., page 170, and Calvo Dictionaire International, Volume I., section 417; Moore's Digest International Arbitration, volume 4 pages 3569-3571. Nor is there any more avail in the argument that the remedy of Metzger & Co. is to be sought in the courts of Hayti against the commune. Even had Metzger & Co. such a right, this would not affect the right to arbitrate the claim as has been done in this case. By the terms of the protocol the arbitrator is competent to take jurisdiction of the claim so far as the liability of the Government of Hayti is concerned (4 Moore International Arbitrations, p. 3571). This view of the case renders it unnecessary to determine whether, as is claimed in argument, the communal authorities are merely the agents of Hayti or whether, as contended by the minister of Hayti, the Government of Hayti had entirely made over the waterworks to Port au Prince, which alone received the revenues and managed its affairs. A diplomatic arrangement fairly and honorably entered into should, in my judgment, be carried into effect. I have already stated what, in my opinion, were the rights of Metzger & Co. under the arrangements made with the commune to supply them with water. This is the arrangement which should have been carried in to effect. It should have been carried out by the Government of Hayti upon the responsibility assumed by it. Because of the failure to give them an adequate supply of water Metzger & Co.'s mill was compelled to remain idle, partially for a time and afterwards to entirely suspend operations. Much of the claim for alleged damages on behalf of complainant can not be allowed. The items showing remote and speculative damages do not directly result from the breach of the agreement. The claimants are entitled to compensation for loss of the use of the mill in whole or in part during the time in which they were unable to operate it by reason of the failure to furnish water and its impaired usefulness when an inadequate supply was furnished to them. I am of opinion that damages fairly recoverable in a case of this kind will be compensated by the payment to Metzger & Co. by the Government of Hayti of the sum of $15,000."

Award of the Honorable William R. Day, arbitrator, in the matter of the claims of John D. Metzger & Co. v. The Republic of Hayti, protocol of Oct. 18, 1899, For. Rel. 1901, 262, 269, 270, 271–272.

(3). WHERE THEY ARE INSUFFICIENT.

§ 990.

With reference to certain claimants who omitted to avail themselves of the opportunity afforded to persons having claims against the United States growing out of the civil war, to prosecute their demands in the Court of Claims within the term limited by the statute, Mr. Bayard said: "I do not desire to insist, as I well might under the circumstances, that the claimants are barred by the limitations of the statute. Municipal limitations undoubtedly do not, as a general rule, bar an international claim."

Mr. Bayard, Sec. of State, to Mr. Muruaga, Spanish min., Dec. 3, 1886,
For. Rel. 1887, 1015, 1022.

With reference to a decree of the Peruvian Government in 1895, which provided for the appointment of a board of Peruvians to examine claims which had been presented to the minister of foreign affairs arising out of the then recent civil war in that country, the Department of State said that it was inferred that the Peruvian Government proposed merely to take the advice of the board on the question of the position which that Government should take in respect to the claims, and that on this supposition the United States had, of course, no right to object; but that, if it was contemplated that the claims of American citizens should be finally disposed of and the claimants bound by the decisions of this ex parte tribunal, the United States could not admit that an adverse decision of the commission would preclude diplomatic intervention.

Mr. Adee, Act. Sec. of State, to Mr. McKenzie, min. to Peru, July 9, 1895, MS. Inst. Peru, XVII. 650; Mr. Adee, Acting Sec. of State, to Mr. Neill, chargé, No. 128, Aug. 29, 1895, id. 655.

The Peruvian Government stated that the action of the claims commission was limited to examining claims brought against Peru by the citizens or subjects of foreign powers and reporting on them to the Government. (Mr. Olney, Sec. of State, to Mr. Neill, chargé, No. 136, Nov. 4, 1895, MS. Inst. Peru, XVII. 660. See, also, Mr. Olney to M ̈. McKenzie, min. to Peru, No. 163, April 27, 1896, id. 676, referring to a resolution of the Peruvian Government limiting the period for the filing of claims growing out of the then late civil war to thirty days from March 25, 1896.)

The German minister at Caracas having been instructed by his Government to ignore all Venezuelan decrees creating tribunals to hear claims of foreigners, and to press claims of Germans only diplomatically, the American minister at Caracas was instructed to advise the Venezuelan Government that the United States would "likewise treat the claims of American citizens only diplomatically." Mr. Hay, Sec. of State, to Mr. Russell, chargé, No. 408, April 8, 1901, MS. Inst. Venezuela, V. 62.

"I have to acknowledge the receipt of your No. 637, of the 30th ultimo, reporting that the commission appointed to examine and pass upon claims for damages arising from the revolution which placed General Castro in power has completed its work and closed its sessions.

"It is not in accordance with the policy of this Government to act in concert with foreign governments in protesting against the barring of the claims of its citizens, but it reserves entire freedom of action, as regards the right to intervene in support of any of its citizens."

Mr. Hay, Sec. of State, to Mr. Russell, chargé at Caracas, July 17, 1901,
For. Rel. 1901, 551.

Mr. Russell, in the dispatch thus acknowledged, after summarizing the
work of the commission, said:

In this connection I would state that several of the foreign ministers have approached me lately and suggested that there should be some combined action in regard to claims. In accordance with instructions the Venezuelan Government has been informed several times that our Government could see no reason for departing from its practice of treating the claims of its nationals only on a diplomatic basis, and the only answer to these representations was in the case of the claim of Ford Dix, which was forwarded to the Department.

"In case a meeting of the diplomatic corps is called for concerted action
I will cable for specific instructions." (For. Rel. 1901, 550.)

In a subsequent dispatch, of July 14, 1901, he stated: "The Government
has issued a decree in reference to the claims allowed by the late
claims commission. The decree states that as the Government is at
present short of cash . . . the matter is referred to the next
Congress which will decide as to how the claims shall be paid.
"In the list I inclosed in a former dispatch you will notice that the
largest number of claims passed on by the commission were from
Italians. Italy has a clause in her treaty with Venezuela by which
claims against Venezuela from Italians must be submitted to the
Venezuelan tribunals, and this would appear as the reason why so
many Italian claims were presented to the commission. La Voce d'
Italia,' an important Italian journal of this city, published an article
last week stating that, although Italian claims had been presented to
the commission, it had been done with the understanding that the
Italian Government was not bound by the decision of the commission,
and that there could always be an appeal to the legation. Whether
this was an authorized statement is not known, but the Government
organ here, commenting upon the article of 'La Voce d'Italia,' made
it the occasion for a violent attack on all foreigners, stating that they
were here for no other purpose than to rifle the national treasury.”
(For. Rel. 1901, 550-551.)

The German Government complained that during the civil wars in Venezuela from 1898 to 1900 many German subjects in that country had been seriously damaged by the extortion of forced loans, by the taking of cattle and other supplies for the troops without payment, and by the ransacking and devastation of the buildings and grounds.