ing the total of seven thousand eight hundred sixty-five 59/100 dollars ($7,865.59) as claimed. But some of the items in the charterer's estimate represent damages, of which no sufficient proof is given, viz., loss of traffic, two thousand two hundred fifty dollars ($2,250), witnesses and fees of counsel, five hundred dollars ($500), and traveling expenses, two hundred forty-eight dollars ($248), amounting to two thousand nine hundred and ninety-eight dollars ($2,998), reducing the total amount to four thousand eight hundred sixty-seven 59/100 dollars ($4,867.59), one-half of which is two thousand four hundred thirty-three 79/100 dollars ($2,433.79). Although the United States did not claim for damages suffered by the Yantic, inasmuch as according to the law applicable to this case, each vessel is entitled to recover one-half of her own damage, the Yantic's damage, which has been estimated by the United States naval commissioner at one thousand dollars ($1,000) (United States answer, p. 33), must be taken into consideration. V. As to the interest: The Tribunal, being entitled under the Terms of Submission to allow or disallow interest as it thinks equitable, is of the opinion that in this case no allowance of interest is justified. On these motives The Tribunal decides that in this case the Government of the United States shall pay the Government of His Britannic Majesty the sum of one thousand nine hundred thirty-three 79/100 dollars ($1,933.79) without interest. This is a claim for Five thousand dollars ($5,000) and interest from June 5, 1812, presented by His Britannic Majesty's Government on behalf of Henry James Bethune, legal personal representative of James and William Crooks, deceased, the owners of the Lord Nelson, a British schooner, on account of the capture of the said schooner by the United States naval authorities on June 5, 1812, nearly two weeks before the declaration of war between Great Britain and the United States of America. The capture of this schooner at the date and under the circumstances above mentioned is not disputed. Further, it appears that the vessel, after her capture, was acquired by the United States Navy at a valuation of two thousand nine hundred ninety-nine 25/100 dollars ($2,999.25). She was converted into a war vessel by the United States and used against Great Britain in the war of 1812 and was never returned to her former owners. It is said that in 1815 the owners applied to the United States Government for redress, but no evidence is offered to show either the date of that application or whether it constituted a claim regularly presented. On July 11, 1817, by decree of the court of the Northern District of New York, the capture of the Lord Nelson was pronounced to be illegal and void and the proceeds of the sale, i. e., two thousand nine hundred and ninety-nine 25/100 dollars ($2,999.25) were directed to be paid to the owners; but that direction was not complied with because the funds had meanwhile been embezzled by the clerk of the court. On February 3, 1819, a regular claim for indemnity was received by the United States Government from the British Government, and subsequently numerous claims, petitions and applications were presented either by the claimants or by His Britannic Majesty's Government, but no action was taken notwithstanding favorable reports and recommendations on bills introduced in Congress providing for payment of the claim. On June 24, 1836, on a new petition presented by the claimants, the Committee on Claims of the House of Representatives, considering that the illegality of the capture was established by the said decree of 1817, resolved that an investigation should be made by the Secretary of the Navy, as to the real value of the ship at the time of the capture. And on February 11, 1837, the Secretary of the Navy, after an investigation by a special committee, reported that this value should be fixed at five thousand dollars ($5,000). This estimate has never been questioned on any of the many occasions when this claim has been under consideration by executive or congressional committees, and the United States Government has admitted before this Tribunal its liability on this claim to the extent of the principal, to wit: five thousand dollars ($5,000) (United States answer, p. 1). The only question remaining for decision by this Tribunal is whether or not interest upon the principal should be awarded, and, if so, for what period and at what rate. On this point it should be observed that from the beginning this claim has never been presented to nor considered by the United States Government as a claim for the payment of a liquidated and ascertained sum of money, but as a claim for indemnity and redress because the United States Government wrongfully took possession of and used the vessel belonging to the claimant. That plainly appears as well from the application made as aforesaid in 1819 by His Britannic Majesty's Government, as from the valuation made by the United States Government in 1837, and from the admission that the valuation of five thousand dollars ($5,000) was the real value of the vessel at the time of the capture. In international law, and according to a generally recognized principle, in case of wrongful possession and use, the amount of indemnity awarded must represent both the value of the property taken and the value of its use (Rutherforth's Institutes, Bk. 1, ch. XVII, sec. V; VI Moore's International Law Digest, p. 1029; Indian Choctaw's Case, Law of Claims against Governments, Report 134, 43 Cong., 2nd sess. House of Representatives, Washington, 1875, p. 220, et seq.) This principle applies especially when the Terms of Submission, as in this case, provide for interest and specify the dies a quo and the dies ad quem for the allowance of interest, as the Tribunal thinks equitable. It is admitted in this case that the sum of five thousand dollars ($5,000) represents only the value of the vessel, and does not cover the use by the United States Government of the vessel or the money equivalent to its value. Under these considerations it would have been justifiable to allow interest from the time of the capture, i. e., from June 12, 1812, except that according to Section IV of the Terms of Submission annexed to the Pecuniary Claims Convention, interest is not to be allowed by this Tribunal previous to the date when the claim was first brought to the notice of the other party, and as above stated that date must be fixed as February 3, 1819. As to the rate, it is a generally recognized rule of international law that interest is to be paid at the rate current in the place and at the time the principal was due. But in this case, by the Terms of Submission above mentioned, the two parties have agreed that in respect of any claim interest is not to exceed four per cent. (4%) per annum, and in view of all the circumstances, the Tribunal considers that the allowance of interest at this rate is equitable. On these motives The Tribunal decides that the agreement given by the Government of the United States to pay to His Britannic Majesty's Government the sum of five thousand dollars ($5,000) claimed by the legal representatives of the owners of the Lord Nelson, shall be put on record; and further awards that the said sum shall be paid accordingly with interest at four per cent. (4%) from February 3, 1819 to April 26, 1912. The President of the Tribunal, HENRI FROMAGEOT. Washington, May 1, 1914. AWARD IN THE MATTER OF THE GREAT NORTHWESTERN TELEGRAPH COMPANY OF Canada CLAIM NO. 22 Decision rendered May 1, 1914 This is a claim presented by His Britannic Majesty's Government on behalf of the Great Northwestern Telegraph Company of Canada, a British corporation, for one thousand thirty-nine 58/100 dollars ($1,039.58 as stated in their memorial, which amount was reduced on the oral argument to nine hundred thirty-nine 58/100 dollars ($939.58), together with interest from July 17, 1904, for damage caused to the telegraph cable of the said company in Quebec harbor on July 17, 1904, by the United States gunboat Essex, in dropping her anchor in a reserved space and fouling that cable. Both parties agree as to the facts. It appears from an affidavit of the superintendent of the company (British memorial, pp. 28-29) that within eight days after the cable was damaged, the damage was examined and estimated to be equal to at least one-third of the original cost of the cable, viz., six hundred seventynine 48/100 dollars ($679.48). It appears further that the actual cost of repairs was one hundred forty-eight 10/100 dollars ($148.10). The claim is presented for both those items, being altogether eight hundred twenty-seven 58/100 dollars ($827.58), to which is added, as a third item counsel fee for two hundred twelve dollars ($212), afterward reduced to one hundred twelve dollars ($112),—a total of nine hundred thirty-nine 58/100 dollars ($939.58). The United States Government admits its liability for eight hundred twenty-seven 58/100 dollars ($827.58), but denies any liability as to counsel fees and interest. The Tribunal cannot but remark that the estimated damage of six hundred seventy-nine 48/100 dollars ($679.48) is simply the contention of the injured party without being supported by any other evidence than its own statement and that the actual expenses for repairs, being one hundred forty-eight 10/100 dollars ($148.10) is accounted for separately. Under these circumstances, and considering Section 4 of the Terms of Submission, the Tribunal is of opinion that the sum of eight hundred twenty-seven 58/100 dollars ($827.58) as accepted by the United States Government is sufficient compensation for any loss incurred by said damage, and in view of all the circumstances it does not consider it equitable to allow interest. On these motives The Tribunal decides that the agreement given by the Government of the United States to pay His Britannic Majesty's Government the sum of eight hundred twenty-seven 58/100 dollars ($827.58) claimed by the Great Northwestern Telegraph Company of Canada shall be put on record, and further awards than the said sum shall be paid accordingly without interest. Washington, May 1, 1914. The President of the Tribunal, AWARD IN THE MATTER OF THE CADENHEAD CASE CLAIM No. 37 Decision rendered May 1, 1914 His Britannic Majesty's Government present a memorial in this case "in support of the claim respecting the killing of Elizabeth Cadenhead," a British subject, who left next of kin her surviving as stated in annex 1 of the memorial, all of whom are British subjects. The amount claimed as compensation for the death of Miss Cadenhead is twenty-five thousand dollars ($25,000). |