Mr. Burlingame to Mr. Seward
No. 51.]
Legation of the United States,
Peking,
October 5, 1863.
Sir: I have the honor to address you in
relation to the Caldera claim, just brought to my attention by the Hon.
Moses H. Grinnell and other parties, in two letters, marked A and B; one
private, the other official.
These parties complain of the award made in this case by the
commissioners at Macao, in January, 1860, and desire that the commission
may be reopened at Washington, and that I will, in the interests of
justice, remove the obstacle in the way of their success which they find
in my despatch No. 25, of May J 9, 1862. Wishing to do no injustice, and
desirous, from my personal esteem for Mr. Grinnell, to aid him in every
proper endeavor, I at once entered upon an examination of the history of
the claim, as found in the legation archives and records of the
commission; and that nothing might be left undone, I requested Dr.
Williams, our secretary of legation, as he had been conversant with the
claim from the beginning, to give me such information in relation to it
as he might possess.
The result of my investigation is that I am constrained to differ from
Mr. Grinnell, and to conclude that he has been misinformed as to the
facts in the case. The points of difference are very clearly set forth
by Dr. Williams in his letter to me, marked C.
You are aware that Mr. Reed, at Tientsin, in 1858, came to a general
understanding with the Chinese government as to the payment of American
claims, and that subsequently, by a convention at Shanghai, November 8,
1858, it was definitively arranged that they should pay a certain sum in
gross, (500,000 taels,) which should be in full satisfaction of all the
claims of our citizens up to that date. The government of the United
States undertook to pay the claimants. Mr. Reed classified the claims as
well as he could, but did not pass judicially upon them, only
recommending the President to appoint a commission to decide them. In
pursuance of this recommendation, an act of Congress, approved March 3,
1859, was passed, and the President appointed two citizens of the United
States, resident in China, viz., Charles W. Bradley, L.L.D., and Oliver
E. Roberts, as commissioners. They commenced their sittings at Macao,
November 14, 1859, and closed them January 13, 1860, having given
general satisfaction to the claimants. Claims to the amount of
$1,513,797 53 came before them, for which they awarded $489,694 78,
leaving an unexpended balance of nearly $200,000.
Among the claims adjudicated was that of the Caldera, being a claim of
citizens of the United States for piratical depredations alleged to have
been committed on the cargo of a Chilian vessel of that name. The
commissioners differed in opinion as to its merits, and wrote out their
views in two elaborate and able papers, which may be found in the
records of the commission in the State Department. Dr. Bradley resisted
the claim in toto. Mr. Roberts favored it to the actual extent of loss
by the sufferers, which he, as the supporter in principle of the claim,
estimated at 40 per cent., with 12 per cent, interest for five years.
The whole claim was for $89,727 09. This award was approved by the
minister, Mr. Ward. The above is a brief history of the case as found on
the records.
[Page 407]
I now come to the complaints of the parties dissatisfied with the award.
They are compounded of law and facts, and range themselves under three
principal heads:
First. That the instructions of Mr. Marcy and Mr. Cass, in 1855 and 1859,
respectively, had settled the legal principle on which the claim was to
be adjudicated; that the schedule made out by Mr. Reed determined the
amount of the same, and that the Chinese government had recognized its
validity.
Second. That the claimants had not sufficient notice of the sittings of
the commission, and consequently had no time to prepare and present
their case.
Third. That the proceedings were ex parte and were
improperly conducted, in so far that evidence was withheld by Mr. Ward,
which, had it been presented by him, would have led the commission to
make a more favorable award.
As to the first complaint, it appears from the archives and from Dr.
Williams’s letter that Mr. Reed in no sense considered that by
classifying the claims he was adjudicating them. If so, why did he not
require the Chinese government to pay the full amount of #1,211,895, as
stated in his schedule? In his despatch to the department he thought
600,000 taels would be sufficient, but when the convention was settled
he fixed it at 500,000 taels, and finally 498,694 proved adequate for
their payment. He suggested a commission, and drew the outline for an
act of Congress creating one. By this act the commission was authorized
to pass upon the claims according to the “principles of justice and
international law.” If the claims had been paid on the principle
suggested by the complainants, the pro rata sum
they would have received would have been $16,655; so that the principle
contended for by them goes too far, unless they would make their case an
exception.
There is even less ground for founding a claim on the instructions of Mr.
Marcy and Mr. Cass. These high officers, animated by a desire to secure
justice to our citizens, pressed the diplomatic representative of the
government in China in favor of the claimants; but they could not have
imagined that their instructions in this respect would be held to
override an act of Congress subsequently passed in reference to those
very claims. As to the assertion that the Chinese government had
recognized the validity of the claims, Dr. Williams and the archives
both show that no list was ever laid before them; but, on the contrary,
they expressly refused to enter into such questions, and paid a sum in
gross to be rid of them forever; and even went further, refusing to
complicate themselves, even remotely, in liquidating the claims, by
declining to receive back any surplus that might remain after payment.
The Caldera’s claim, therefore, came before the commission on its own
merits.
With regard to the second complaint, touching the want of time to prepare
their case, Dr. Williams shows that there was ample time. As early as
March, 1859, the act of Congress was passed directing where the
commission should sit; and besides that general intimation to all
interested parties, nearly a year before, in May 27, 1858, he had
addressed a notice to Messrs Russell & Co. and Nye Brothers &
Co., agents in China for the insurance companies, asking them to prepare
their evidence in this case. To this the claimants had responded by
attorney, and documents were handed in on their side to the extent of
nearly thirty papers, to which were added as many more furnished by the
legation.
As to the protest alleged to have been made by Russell & Co., there
is no evidence in the legation that any such protest was ever made. Dr.
Williams distinctly states that when he paid the first dividend on this
claim no protest was made, and he has no recollection of hearing of it
subsequently.
With regard to the third complaint against Mr. Ward and the reference to
the conduct of the case, I have also to say that the intimations that he
withheld the instructions of his government does that gentleman great
injustice. He did not make his decision until after reading them, and
Dr. Williams, who was cognizant of the circumstances, states that they
were spoken of at the time to the [Page 408] commissioners; and, moreover, the copy of the
award quoting them is partly in the handwriting of Mr. Roberts. Dr.
Williams bears his most earnest testimony to the carefulness and
integrity of all Mr. Ward’s proceedings in the case. He did all he could
for the claimants, as did every member of the legation; and in the
Caldera’s case there was more evidence adduced than in any other before
the commission.
From these facts it appears that this claim was fully considered and
decided under the most favorable circumstances for the complainants, who
received two-thirds of the sum originally claimed, when it seems to me
they were not entitled to one farthing. I agree entirely with the able
opinion of Dr. Bradley against the whole claim; and also with the
antecedent opinion of Mr. McLane, in November, 1854, in the same sense.
To both these opinions I most respectfully refer you.
I am informed that Mr. Ward held views coincident with theirs, but that
he felt constrained by the instructions from the State Department to
decide in favor of the parties to the extent of their actual losses by
the alleged laches of the Chinese government. After this award, to learn
that a still further claim should be put forward fills me with
amazement, and makes me certain that my distin guished friend, Mr.
Grinnell, has been misinformed as to the facts of the case.
I have the honor to be, sir, your obedient servant,
Hon. William H. Seward, Secretary of State) Washington, D. C.
[Enclosure A.]
Mr. Grinnell to Mr. Burlingame.
Sir: We beg leave to address you on the
subject of the Caldera, one of the claims embraced by the agreement
or convention dated Shanghai, November 8, 1858, supplementary to the
treaty of Tientsin, and in which we are interested to a considerable
amount.
You are well aware that the payment which the Chinese government, by
that agreement, promised to make, and did in fact make, for the
satisfaction of private claims of citizens of the United States, was
of a sum in gross intended to cover all such private claims to the
date of the treaty.
It appears to have been based upon a schedule presented by the
American minister, Mr. Reed, but the terms of the agreement and the
accompanying correspondence serve to show that the payments of China
were to be a full satisfaction, not of the specified claims only,
but of all others, if any, which might then exist, transferring to
the government of the United States the sole power and duty of
distributing the indemnity money among the claimants, in accordance
with its own views of justice and right, and relieving the Chinese
government of all further reclamation or responsibility in the
premises. That is to say, the sum paid was a fund for the
satisfaction of all just and reasonable claims, committed to the
United States in trust, to be distributed among the parties
beneficially intended in the fund. To this end, the United States
proceeded, by act of Congress of March 3, 1853, to establish an ex parte commission of two citizens of the
United States to pass upon the claims in question, subject to the
approbation of the American minister in China. Of the claims allowed
by the commissioners, and which have been discharged as the
stipulated payments on debentures of the Chinese government were
made, the total amount is $498,694, leaving a surplus of indemnity
paid or payable of about $200,000 in the hands of the United
States.
Much of the surplus, it would appear, is the result of the
commissioners having rejected, in whole or in part, claims which had
been considered valid by Mr. Reed, which were noted on his schedule
of claims, and the validity of which was thus, in a certain sense,
recognized by the Chinese government. Such a case was that of the
Caldera, being the claim of citizens of the United States for
piratical depredations on the cargo of the vessel of that name. This
claim was admitted in principle and allowed in part, but was
disallowed in part on objections which we feel assured we could have
met but for the fact that on account of the sessions of the
commissioners being held in China, and of the brief time allowed by
the act of Congress for the hearing of the cases, we had no
sufficient opportunity of presenting our views, either to the
commissioners or to the minister, (Mr. Ward.) We confidently believe
that injustice has been done to us, and that this would fully appear
to the commissioners and the minister, if the case could be fully
and properly heard.
[Page 409]
In this conviction we are petitioners to Congress for relief in the
premises, which relief, in a form perfectly unexceptionable, we
should obtain but for the obstacle interposed “of an unfavorable
opinion of the American legation in China.” What we ask of the
government is to afford us the opportunity (which we have not yet
enjoyed) of being fully heard in the facts and merits of our whole
claim, either before the commission revived or before the Secretary
of State.
This we respectfully but earnestly pray you to favor, not only as an
act of justice to ourselves, but also to the intention and end of
the Chinese government.
We have, &c, &c,
M. H. GRINNELL, President Sun Insurance
Company, and for Other Companies.
His Excellency Anson Burlingame,
&c.,&c.,&c.
Memorandum.—Award of
the Caldera claim, of the Sun Mutual Insurance Company,
represented by Messrs. Russell & Co., in China.
| Sun Mutual Insurance Company: |
| Claim—834,970 08, at 40 per cent., is. |
$13,988 03 |
|
|
| Five years’ interest, at 12 or 60 per cent., is. |
8,392
82 |
|
|
22,380 85 |
|
| Due on the principal and unpaid |
|
$20,982 05 |
| Five years’ interest, 60 per cent., to be added |
|
12,589
20 |
|
|
33,571
25 |
| New York Mutual Insurance Company, represented by
Messrs. Russell & Co.: |
|
| Claim—$22,000, at 40 per cent., is |
8,800 00 |
|
| Five years’ interest, at 12 or 60 per cent., is |
5,280
00 |
|
|
14,080 00 |
|
| Due on the principal and unpaid |
|
13,220 00 |
| Five years’ interest, 60 per cent., to be added |
|
7,932
00 |
|
|
21,152
00 |
| Mercantile Insurance Company: |
| Claim—$13,912, at 40 per cent., is. |
5,564 80 |
|
| Five years’ interest, at 60 per cent., is |
3,338
88 |
|
|
8,903
68 |
|
| Due on the principal and unpaid |
|
8,347 20 |
| Five years’ interest to be added, 60 per cent |
|
5,008
22 |
|
|
13,355
42 |
[Enclosure B.]
Mr. Grinnell to Mr. Burlingame
My Dear Sir: Under my official signature,
dared the 15th instant, I have already had the honor to address you
with reference to the Caldrra’s claims, which were partially
adjudicated and forty per cent, awarded: which award, however, was
received under protest by Messrs. Russell & Co., advising the
claimants Lad recourse to Washington for further redress.
’Tis well for me, perhaps, to state, in order to familiarize yourself
at once with the Caldera case, that a claim was set up by the
government of the United States, decided by Mr. Marcy, then
Secretary of State, to be a valid one, to hold the Chinese
government responsible for indemnity. Instructions were then given
to the resident minister in China, the Rev. Dr Parker, to present
the claims, which he did without a successful result.
[Page 410]
Subsequently, however, the Rev. Mr. Reed, occupying the position of
minister, negotiated a treaty, in which provision for the payment of
the Caldera’s claims was made and guaranteed through the customs of
Canton, Shanghai, and Fuhchau, and as received applied by
instalments to the liquidation of adjudicated claims. The Caldera’s
claims, among others, were submitted to a board of commissioners in
China, appointed by the government at Washington, for adjudication
of claims—the American minister, the Hon. Mr. Ward, acting as
umpire.
Meanwhile it became necessary to bring the Caldera’s claims before
the government at Washington for decision upon the legality of the
claims under the American treaty with China, and also under the law
of nations. Mr. Cass, then Secretary of State, lost no time in
deciding the claims to be valid, not only under the treaty with
China, but also under the law of nations, and instructions were sent
to the resident minister,. Mr. John E. Ward, to so consider it. This
settled the principle and disposed of the case, so far as the
government was concerned.
The case then, among others, came up before the two commissioners;
Mr. Roberts decided in favor, and Mr. Bradley against it; the Hon.
Mr. Ward, meanwhile, unaccountably and strangely
withholding the decision of the government from the
commissioners. Mr. Roberts awarded 40 per cent., with
interest.
Under the instructions Mr. Ward received from the Secretary of State,
he of course confirmed Mr. Roberts’s award; the latter, however, was
kept in total ignorance of the instructions of the government to Mr.
Ward, which undoubtedly would have aided the commissioners in
reaching a very different result.
We now complain of the amount adjudicated for the reason that time
was not allowed, through notice from the commissioners, to prepare
an argument to cover the case when under their examination; and
owing to the board not being conversant with insurance, did not
consider the merits of the marine loss through the protest, with
full evidence and testimony before them; thus the interest of the
claimants suffered in the absence of any protection. The claimants
now petition and pray of the government to reopen the commission at
Washington for a hearing upon their case, on the ground that twelve
months’ notice at least should have been given to the parties in the
distance, and afforded them time to have placed before the
commissioners a full argument upon the equitable and legal amount to
which they were entitled. If it could be adjudicated at Washington,
it would be the shortest mode of settlement; it would also seem as
if, with all the testimony in the United States for a
reconsideration before commissioners at Washington, or before the
Secretary of State, who may be authorized to act through an act of
Congress, it might be speedily settled here.
Mr. Robert S. Sturges and D. N. Spooner, in China at the time of the
destruction of the Caldera, and latter then United States consul,
both of whom were partners of Russell & Co. at the time, and
sided strongly in favor of the claims without abatement, still
declare the full amount with interest should be collected.
Now, you will pardon me for asking if it is right and just for these
claims to be debarred a hearing, when such injustice has been so
monstrously made apparent, particularly so when considered with the
fact that the minister, Mr. Ward, withheld from the commissioners
his instructions to require indemnity—at the same time provision
already made by the Chinese government to indemnify the claims in
full, leaving no adjudication really necessary, as the underwriters
had paid the assured in full, for the face of the policies. It would
seem a hard case indeed, if, ample funds still existing and provided
to pay these very identical claims, under a special decision of the
government at Washington, equity and right should fail to correct
the oversight and errors of the commissioners under Mr. Ward’s
administration; and I cannot, under the facts and circumstances set
forth, for a moment doubt you will withhold your kind offices in
recommending the case to Washington, which will readily settle the
matter. Indeed, it was in a favorable train for such an end when
your despatch of the 19th of May, 1862, reached the Secretary of
State and frustrated, for the time being, the steps already taken,
through the Committee on Foreign Relations. Here the matter rests at
present to afford the claimants time to address you, with the hope
you may reconsider the matter, and report to the government favoring
their petition for a hearing at Washington.
Giving the case immediate attention, and report, by an early mail to
enable the claimants to renew their efforts in December next, you
will confer a very great favor on, dear sir, yours very truly,
His Excellency A. Burlingame,
United States Minister,
&c.,&c.,&c.
[Enclosure C]
Mr. Williams to Mr. Burlingame.
Sir: I have carefully read the two letters
of Mr. Grinnell, dated June 15th and 16th ultimo, which you placed
in my hands, and in compliance with your request, I now make a few
remarks upon them, explanatory of the claim of the underwriters of
the Caldera, and its decision by the commissioners of claims in
January, I860.
[Page 411]
In the letter of June 15 Mr. Grinnell remarks, in reference to the
convention of claims, signed November 8, 1858, that the sum given by
the Chinese government was intended to coverall private claims of
American citizens to that date, estimated from a schedule presented
to their officers by Mr. Reed; and, to quote his words, “was a fund
for the satisfaction of all just and reasonable claims committed to
the United States in trust to be distributed among the parties
beneficially interested in the fund.” This explanation of the
principle of the convention is no doubt a just one; and yet if he
means thereby to convey the impression that the Chinese negotiators
granted so much money out of the duties on American commerce to the
United States minister with which to pay a certain number of claims
of American citizens presented to them, Mr. Grinnell has been
misinformed as to the details of the negotiations. No schedule was
ever presented to the Chinese officers, nor did they ever ask for a
list of the claims; and when questioned as to a participation in
their adjudication, declined to have anything to do with the
decisions. The amount inserted in the convention was reduced by
$140,000 from the sum first demanded, in consequence of further
information obtained by Mr. Reed respecting the claims, and not at
the request of the Chinese. The United States government was made
the sole judge of the justice of the claims, and the Chinese have
never made any inquiry as to the disposal of the money.
It is incorrect, therefore, to infer, that by presenting the schedule
of claims to the Chinese officers they accepted them; and that by
the same act Mr. Reed considered them all to be valid; for, in fact,
no schedule was ever laid before them, nor did Mr. Reed examine them
judicially in reference to their accuracy or validity. He merely
submitted them to the State Department, with such explanations and
classifications as seemed desirable for understanding the whole
subject. In no sense can it be said, therefore, as Mr. Grinnell
remarks, “that the validity of the claims was ever recognized by the
Chinese government.” On the contrary, when this particular case was
presented to them, in 18,56 and 1857, they rejected it peremptorily
as not coming under the treaty. In reality, they paid the demands
made upon them by the English and French ministers as well as the
American, under pressure; and never admitted that there was any
justice in any of them, nor would they voluntarily have ever paid a
single claim.
The case of the Caldera, consequently, came before the board of
commissioners of claims, as all the others did, entirely upon its
own merits; and the members of that board never had an idea that
their awards on it or any other claim were to be influenced by what
the Chinese thought of them. It had been put out of their power to
offer even an opinion of the justice of the award in a single
instance.
In his letter Mr. Grinnell complains that the claimants for the
Caldera suffered injustice because they were not heard before the
commissioners or minister; but in truth this case was illustrated by
more evidence, direct and collateral, than any other one
presented—not only as to the condition of the ship and cargo after
the storm, the circumstances of the several attacks of the pirates,
and the disposal of the cargo after she had been pillaged, but by
full arguments in regard to the legal and international features
involved in the transaction. All the evidence obtained at Hong Kong,
Macao, Kulan, and Canton, in 1854, at the time the casualty
occurred, was before the board, showing all the known facts; and so,
too, were all the arguments contained in the correspondence of Mr.
McLane and Mr. Parker with Chinese officials, and of the former with
the agents in China of the underwriters, and the elaborate argument
of Mr. F. B. Cutting, of December 3, 1855, in behalf of the case.
All the vouchers, accounts, policies and affidavits pertaining to it
were on hand and spread before them; and it is nearly certain that
no new fact could have been discovered if the case had been argued
in the United States, for the actors in the transaction were not
there; nor can I imagine what new arguments the claimants would have
brought forward. It is difficult to perceive wherein they have lost
any advantage by having their case decided in China.
Complaint is also made in these letters of want of time to prepare
the case for a hearing by the commissioners, owing to the distance,
the limited period of their session, and inadequate notice. The fact
of distance could not have been a hardship, for the claimants knew
as early as March, 1859, when the act of Congress was passed, that
the board was directed to sit in China, and that their case was to
come before it; and, consequently, that no time need be lost to
prepare their proof. But nearly a year before, on the 27th of May,
1858, I addressed a note to Messrs. Russell & Co., and Nye
Brothers & Co., as agents for the insurance companies, asking
them to prepare and furnish evidence respecting the ownership of the
property, and circumstances of the loss of the Caldera, that it
might be deposited in the archives, to be used in case the claims
were adjusted with the Chinese government. In reply to this note,
apparently, Mr. Cutting, their attorney, sent three documents,
September 10, 3858, to Mr. Reed, explanatory of the case, and after
the board commenced its sittings at Macao, Russell & Co., in
December 5, 1859, added many more vouchers and accounts, making in
all about thirty separate papers and pleadings, touching upon this
one claim. There were nearly as many more besides, scattered through
the archives of the legation, which were accessible to the
commissioners.
It is always difficult to disprove negative assertions, but in this
case I cannot see how the distance, or the limited session of the
commission, operated against the claimants, for they had a longer
notice than they now say would have sufficed, and seem to have fully
availed [Page 412] themselves of it.
If oral pleading was desirable to secure a successful issue, as Mr.
Grinnell intimates, why did not the agents in China come before the
board and plead the case? There can be little ground for supposing
that either the commissioners or minister lacked any evidence or
argument to enable them to come to an intelligent decision.
Among the papers now on file relating to the Caldera, there is no
copy of a protest or appeal from Messrs. Russell &, Co. when
they received the award; nor when I paid them the first dividend of
$21,950 62 in January, 1860, did I receive a protest, and I have no
recollection of hearing of it at any time after that date. Messrs.
Alvord & Co., whose claim for losses at the same time was
decided on the same principle, made no appeal against their
award.
The remarks in Mr. Grinnell’s letter relating to the decision of the
Caldera’s case need some correction, for he seems to have been
misinformed. As soon as the board commenced its sittings, November
14, 1859, all the documents relating to it, as well as others, were
handed to the commissioners out of the archives, and, as appears by
their journal, those concerning this case were discussed on two or
three occasions. Their views concerning it finally differed so
entirely that they deemed it best to write out their reasons at
length and submit them to Mr. Ward as umpire. The two documents
number forty-six folio pages, and recite the particulars connected
with the piracy and collusion of the officiais, and enter at length
into the question as to the liability of the Chinese government to
make compensation for the injury done by its lawless subjects, the
whole drawn up so carefully as to render it almost unnecessary to
refer elsewhere for information or argument.
Mr. Ward was at first inclined to take Dr. Bradley’s view of the
case; but when the despatch of Mr. Marcy, of October 5, 1855, was
referred to, and its subsequent confirmation by Mr. Cass, in May,
1859, he remarked with some degree of satisfaction that the decision
was thereby taken out of his hands, and, as he observes in his
written award, “his duty will be discharged by ascertaining as near
as possible what have been the actual losses of our citizens.” Mr.
Grinnell seems to lay so much stress on the words actual losses in Mr. Marcy’s despatch, as to overlook the
principle that they should be construed by the context of
circumstances, and to be defined and to include and mean only those
losses caused by the pirates, Mr. Marcy could hardly have intended
that the Emperor of China should be made responsible for damages by
tempests and leakage, even if intimately connected with these by
pirates in time and place. But Mr. G. almost assumes that the
commissioners or Mr. Ward had no option left as to their decision,
but must pay the whole claim of $89,727 09, because it was all an
actual loss. This idea he derives from the postulate, on the one
hand, that the Chinese government had accepted the schedule of
claims presented to them by Mr. Reed, and had paid a sum of money to
liquidate them, which were thereby supposed to have been declared
valid; and, on the other hand, because the Secretary of State
acknowledged this one in particular to be a just claim. He then
concludes that as these two principal parties had thus acted, there
was no real authority left with the board of claims to adjudicate it
and no occasion for them to interfere.
But it has been shown that no list was presented to the Chinese by
Mr. Reed, nor did he decide on the validity of one of them, and that
the commissioners were made by the act of Congress the sole judges
of all claims presented to them. Mr. Ward made his decision after
reading his instructions, which I know were spoken of to them at the
time, for I was cognizant of all the circumstances; and, moreover,
the copy of this decision now on file is partly in the handwriting
of Mr. Roberts.
What advantage Mr. Ward proposed to himself or any one else by
withholding Mr. Marcy’s despatch I cannot conceive, for he could not
take the case out of the commissioners’ hands, and their written
statements prove that they decided it on its own merits. Mr.
Roberts’s favorable award is based on broad grounds of international
law, and implied protection and fulfilment of treaty rights by the
Chinese government, which obliged them to act more energetically to
remedy the piracies common along their coasts, and the pleading
concludes with the admission that the claimants “are entitled to all
equity which the facts of the case can possibly give. Their loss has
been absolute and without contingency or construction.”
He then indicates the basis for an award: “Equity, however, requires
that the allowance of the claim should be made with a deduction. The
underwriters and others should not be placed in a better position
than if no piracy had occurred. The ship suffered heavily in the
hurricane, and a large claim on the insurance offices would have
been made. The vessel had four feet of water in the hold, and had
been much strained; the masts, sails, and rigging had been nearly
lost before the pirates came alongside. It is impossible now to say
what the exact amount of repairs, salvage or general average would
have been, or what portion of the cargo was damaged by the water in
the hold or other leakage. After considering all the circumstances
and taking testimony, I deem it fit to allow but forty per cent, of
the claim on the policy covering the hull, and the same on the
policies covering the cargo, with five years’ interest at twelve per
cent, to the underwriters in the United States.
“The rejection of this claim in 1854 (on grounds which, in my
opinion, overlook the distinguishing features of it) has
necessitated a careful review. I have endeavored to view the subject
as if it was now presented for the first time. I have regarded it
merely as a legal, question, which requires a judicial solution
according to the best of my ability.”
[Page 413]
This award was accepted in principle and amount by Mr. Ward, but I
think that neither of the commissioners would have at any time
regarded Mr. Marcy’s despatch as superior, or contravening the act
of Congress which authorized the board of claims. They would rather
have explained it according to the act, that being the highest
authority. I do not know when they first learned the purport of the
despatch, but the charge brought against Mr. Ward of withholding it
seems to be both unfounded and unnecessary.
He assisted them whenever it was requested, but as the Caldera was
the only claim on which they differed, that assistance amounted
merely to furnishing-documents. There was no oversight or error on
the part of any one in deciding the claims such as these letters
describe, and particularly this one. Mr. Ward regarded himself as
appointed by the act merely to approve their finding when it was
unanimous, or decide which was just when it differed, not at all
authorized to reject or modify it, or make one of his own. I may
perhaps be allowed to add, that I know how much he endeavored to act
impartially; also, that the commissioners took all possible
precautions in forming their decisions. I heard several Americans in
China, claimants and non-claimants, and some, too, whose claims had
been cut down, express their approval of the carefulness and
diligence exhibited in investigating the claims and the fairness of
the awards. There was no end to be gained by the examiners in
withholding money which seemed to be justly due the claimants, for
neither of them would be benefited, and Mr. Ward, especially, could
have no object in withholding his instructions.
There were several claimants whose cases were rejected entirely, as
not coming within the letter of the act, because they were not
American citizens, or for other reasons, to whom this rejection was
a great hardship. They were all included in the first schedule made
out by Mr. Reed, and their losses were as actual as those of the
insurers of the Caldera, and perhaps more serious to them. Some of
these rejected claims were those of native employes, who stood by
their masters in circumstances of great danger, and confided their
property to them on the assurance of its safety, only to see it
consumed without remedy, while, too, a number of their countrymen in
English employ, and sufferers in like manner, have been compensated.
All these claims were (according to Mr. G.) considered alike valid
by Mr. Reed; and if the commissioners had allowed them as they were
claimed, the pro rata sum which the Caldera’s claimants would have
been entitled to by this distribution was only $16,655. Moreover,
Mr. Marcy’s despatch said nothing about interest, but the five
years’ interest at twelve per cent, paid on the award made the
payment altogether nearly two-thirds of the claim.
The point of the case in which Mr. Grinnell’s opinion seems to be
that the despatch was to be considered absolute in regard to this
claim, irrespective of all investigation as to its merits by the
commissioners, and that as the Chinese government gave a sum of
money to the United States government through Mr. Reed, after
accepting the schedule of claims, all of it was to be divided among
the claimants, more or less, but in the Caldera’s case apparently
not pro rata.
I have endeavored to show his errors as to facts, and that the case
was fully shown in the evidence and argument before the board, that
the claimants had ample time granted them to prepare and present
their pleading, and that neither oversight nor injustice was done
them in the premises. There is, therefore, not a sufficient ground
to be found for reopening the case, nor for paying the additional
sum now asked.
I am, sir, your obedient servant,
Hon. Anson Burlingame, &c.,&c.,&c.
