XII.—Reply on the part of the United States to the argument of Her Britannic Majesty’s counsel on the allowance of interest in the computation of indemnity under the Treaty of Washington.
The question upon which the Tribunal is understood to have admitted argument on the part of Her Britannic Majesty’s Government is, “Whether, supposing a capital sum as an adequate measure of injury, in the judgment of the Tribunal, has been arrived at, the proper indemnity for that injury involves the allowance of interest as a part of that indemnity from the date when the losses accrued to the sufferers (and as of which the capital of the losses has been computed) until the indemnity is paid?” We have had an opportunity to read the argument of Her Britannic Majesty’s Counsel submitted to the Tribunal upon this question, and now avail ourselves of the right under the Treaty to reply to it, so far as such reply seems to us suitable.
I. It is important in reference to this question, as we have heretofore had occasion to suggest in respect to other questions opened for discussion by the Tribunal, to confine the argument within proper limits. By doing this in the present case, we may very briefly dispose of much that occupies a good deal of space in the learned Counsel’s argument.
(a) The question assumes that a method of measuring the injury to the United States, and the indemnity therefor from Great Britain, has been adopted, which takes account of the losses suffered as of the dates (actual or average) when they were suffered, and fixes an amount in money which, if then paid to the sufferers, would, in the judgment of the Tribunal, be an adequate, and no more than an adequate, indemnity for such losses to the sufferers. Upon this view of the capital sum, in respect of which the allowance or refusal of interest thereon is in question, (and no other view seems admissible,) it is impossible to raise any other points for debate than the following:
First. Is the delayed payment of a sum which, if paid at an earlier date, would then be only an adequate payment, still an adequate payment without compensation for the delay?
There can be but one answer to this question. The earlier and the later payments cannot both be adequate, and not more than adequate, to the same obligation, unless they are equivalent to each other. But common sense rejects the proposition that a present payment of money and a delayed payment of the same sum are equivalent. They are not the same to the creditor or sufferer who receives the payment, nor to the debtor or wrong doer who makes the payment.
Compensation for the delay of payment is necessary to make present and delayed payments equivalent to each other, and each equal to the same obligation.
It thus being clearly impossible that earlier and later payment should be equivalent, whenever, in fact, only the later payment can be, and is to be, made, it must draw with it the compensation for the delay in the nature of interest, provided it is intended that the parties should stand after the delayed payment as they would have stood after an earlier payment.
[Page 569]Second. It will be readily admitted that this necessary compensation for delay in payment of a sum, which has been computed as a just payment, if made without any delay therein, cannot be justly withheld, unless there shall have been some fault on the part of the creditor or sufferer whereby the delay of the adequate payment is imputable to him.
We imagine that the principles of private law governing this question and justifying the refusal of interest for delay of payment all turn upon this, viz: that the debtor was ready to pay and the creditor was unwilling to receive.
It is true, in addition, that the jurisprudence of Great Britain and of the United States permits nothing but an actual tender of the sufficient sum, and a continued keeping of the sum good for payment on the part of the debtor, and a refusal to receive on the part of the creditor, to stop the running of interest on the debt.
The other class of cases, in which the debt is frequently spoken of as not drawing interest, more accurately should be described as a situation wherein the transactions between the parties do not culminate in any obligation of one party to pay, or right of the other party to demand, until, as a part of those transactions, there has been an ascertainment of amounts, and a demand of payment.
These are cases of mutual accounts, or of open demands, as yet unliquidated. Until the eventual creditor strikes his balance, or computes and demands his debt, there is no delay of payment, requiring compensation between the parties.
Third. There seems to be no other possible reason in the nature of things for refusing to add interest for delayed payment to a sum which was a mere indemnity, had it been promptly paid, other than a disposition not to give full indemnity, that is, an intention to apportion the loss.
But this disposition, if it should be just, can hardly be said to raise any question of the allowance of interest any more than of the allowance of principal. It will be all the same to the American sufferer who fails to receive the full indemnity which delayed payment involves, whether the sum which is actually paid him is computed by the Tribunal as half his principal loss with interest added, or the whole of his principal loss without interest. It is all the same to Great Britain in making the payment, whether the reduction from a full indemnity is computed by refusing the full capital, and calculating interest on the part allowed, or by allowing the full capital and refusing all interest upon it. The fact that full indemnity is or is not given cannot be disguised. It will not be more than given because interest is allowed. It will not be any less withheld because the part withheld is withheld by the refusal of interest.
II. If these views are correct it will be seen that, notwithstanding the very extended discussion of Her Britannic Majesty’s Counsel, the real considerations which should affect the allowance or disallowance of interest in the computation of the award of the Tribunal lie within a very narrow compass.
(a) We may lay aside all the suggestions that interest on the capital sum, as it has been adopted or shall be adopted by the Tribunal, should not be allowed, because the capital is or is like to be excessive, and interest would be an additional injustice.
These ideas are put forth in sections 14, 17, and 18 of the learned Counsel’s argument under two heads, (1) that the computation by the Tribunal of the capital will be excessive per se, and (2) that it will be excessive by adopting in coin values that are stated in paper currency.
[Page 570]In the first place, all this is not a reason for refusing interest, but for correcting the computation of capital on which the interest should be computed. We cannot enter into any such rude judgment as this. We are not invited to criticise the Tribunal’s computation of the capital of the losses. We are not advised what that computation is or is to be. We have exhibited to the Tribunal evidence and computations bearing upon the just measure of the capital of the losses. If those should be adopted by the Tribunal, there is no danger of excessive indemnity to the sufferers. We have also exhibited to the Tribunal the evidence and the reasons upon which we insist that the valuations given to property in the “Claims” as presented are to be paid in coin. We do not repeat them here. But we protest against an attack, in the dark, upon the Tribunal’s measure of the capital of the losses, under the form of an argument against the allowance of interest.
(b) We may also lay aside the suggestions prejudicial to the allowance of interest on the claims which, by subrogation or assignment, have been presented by the insurers who have indemnified the original sufferers. So far as Great Britain and this Tribunal are concerned, who the private sufferers, and who represent them, and whether they were insured or not, and have been paid their insurance, are questions of no importance. But it is worth while to look this argument in the face for a moment. Some of the sufferers by the depredations of the Alabama, the Florida, and the Shenandoah were insured by American underwriters. These sufferers have collected their indemnity from the underwriters, and have assigned to them their claims.
The enhanced premiums of insurance on general American commerce have, presumptively, enriched the insurance companies. Great Britain should have the benefits of these profits, and the underwriters, at least, should lose interest on their claims! It is difficult to say whether the private or the public considerations which enter into this syllogism are most illogical. Certainly we did not expect that “the enhanced payments of insurance,” which Great Britain could not tolerate, and the Tribunal has excluded as too indirect consequences of the acts of the cruisers to be entertained when presented by the merchants who had paid them, were to be brought into play by Great Britain itself as direct enough in the general business of underwriting, to reduce the indemnity on insured losses, which, if uninsured, they would have been entitled to.
(c) Equally irrelevant to this particular question of interest are the considerations embraced in section 11 of the learned Counsel’s argument. These relate (1) to the fact that the belligerent aid given by Great Britain, for which it is now to be charged as responsible, were given in aid of the rebels against the Government of the United States in their attempt to overthrow it, and that by the triumph of the Government these rebels have been merged in the mass of the population of the United States. This idea, as intimated in the principal discussions of the British Case and Counter Case, has been responded to by us already, so far as it seemed to us to require response. (Argument, p. 479.) It certainly has no special application to the question of interest. The notion seems more whimsical than serious, but whatever weight it possesses should have been insisted upon before or while making the Treaty of Washington. The terms of that Treaty have relieved the Tribunal from any occasion to weigh this argument.
But (2) in section 11 of the learned Counsel’s argument it is insisted that the allowance of interest, as a part of the indemnity, should be affected by the circumstances of the failure of the United States sooner to cut short the career of the cruisers, for whose depredations Great [Page 571] Britain is now held responsible. A plea to this effect, based upon efforts of Great Britain to arrest, disarm or confine these cruisers, and thus reduce the mischiefs for which it is held responsible, would have had some merit. But, alas! the Proofs furnish no support for such a plea.
As to the action of the United States, however unsuccessful, it will be time enough for Great Britain to criticise it as inefficient when its Navy has attempted the chase of these light-footed vagabonds, which found their protection in neutral ports from blockade or attack, and sought remote seas for their operations against peaceful commerce. But this consideration has no special application to the question of interest.
III. We now come to an examination of some suggestions which purport to bear upon the question, whether there may not be found in the relations between the parties in respect to, and their dealings with, these claims, some reasons why interest should, for affirmative cause, be withheld.
(a) It is said that Great Britain is not in a position of having had value to herself, and so the reasons for adding interest against one who withholds a debt representing money that he has had and, actually or presumptively, keeps and enjoys, or detains property whose profits he actually or presumptively receives and enjoys, do not apply.
It is true, these precise reasons do not apply, and they do not any more in a multitude of private cases, where, nevertheless, the indemnity exacted for wrong-doing, or the payment required to make whole the creditor, involves the payment of interest.
It has never been suggested that, when the injury consisted in an actual destruction of property, the wrong-doer was less liable for interest as a part of a delayed indemnity than when he had applied it to his own use, and reaped the advantages thereof. So, too, in matter of contract, the surety being liable for the debt, is just as liable for the interest as if he had received and was enjoying the money. So, too, where one is made responsible for the injury which his dog has done to his neighbor’s sheep, he pays interest for delayed indemnity just as much as if he wore their wool or had eaten their mutton.
In fine, the question in respect of contracts is, whether the contract expresses or imports interest, and, in respect of torts, whether indemnity is demandable or is to be mitigated. If indemnity is demandable, it has never been held to be complete unless it included compensation for delay. Besides, in this actual case, suppose that twenty millions of dollars are a measure of the indemnity that Great Britain should pay for the capital of the losses suffered for which it is responsible. This means that, if that sum had been paid when the loss happened, the sufferer would have been made whole and the wrong satisfied. Instead of that adjustment having been made, instead of that sum of money having then passed from the wealth of Great Britain into the hands of the sufferers, they have been kept out of it, and Great Britain has retained it. It is in vain to say then that the delay of payment has not left Great Britain in the possession of the money during the interval, for the contrary is true. The lapse of time has all the while been to the gain of the indemnifier and to the loss of the sufferer, unless interest added corrects the injustice of delay.
(b) But it is said that the indeterminate or unascertained amount of these injuries precludes the allowance of interest on the capital that shall be finally ascertained. To us this seems no more sensible than to say that interest should not be allowed, because the date from which or to which [Page 572] it was to run, also needed to be ascertained before it could be computed. The problem before the Tribunal, as bearing upon this question of interest, may be very simply stated.
The injuries for which Great Britain is to make indemnity, happened in the years 1863 to 1865. The Treaty of Washington provides that the sum for their indemnity, as fixed by the Tribunal, shall be paid within one year after the award.
What sum, payable as of this date, will be an indemnity for destruction of property occurring seven, eight, and nine years ago?
Manifestly, the question whether Great Britain should pay interest is an inseparable part of the question whether it is to make indemnity.
(c) But it is said that for a certain period of time the United States are responsible for the delay of payment by Great Britain, and for that period Great Britain should be exempted from interest. This period is put as from the failure of the Johnson-Clarendon Convention, negotiated in London January, 1869, but not ratified by the United States. If this means anything, it means that Great Britain, in January, 1869, was ready then to pay to the United States the sum that this Tribunal shall find reason to fix under the Rules of the Treaty of Washington, and so notified the United States. The intervening delay, consequently, in the receipt of the money is chargeable to the United States. Thus put, the proposition is intelligible, but utterly unsupported by the facts of the case.
Great Britain has never admitted its liability to the United States in the premises for a single ship destroyed by any one of the cruisers, nor is it pretended to the contrary. Of what value is it then to say, that if Great Britain and the United States had been able to agree upon different and earlier arbitration there might have been an earlier award, and so interest should cease from a date when Great Britain was ready to accede to an arbitration upon certain terms which the United States rejected? Certainly the efficacy of this novel limitation on the running of interest must date from the probable period of the award under the failing arbitration. Upon no reasonable conjecture could the commission of claims arranged by that convention have produced its award at all in advance of what may be expected from this Tribunal.
We leave out of consideration, as wholly irrelevant, the suggestions that it was to the non-concurrence of the Senate of the United States that the failure of the previous attempt at arbitration was due. That arbitration failed because the United States did not ratify the convention. But to give any force to this argument, it should appear that the United States in the present Treaty have simply, at a later date, concurred in what they then refused. This is not pretended. Indeed, it is to the presence of the Three Rules of the Treaty of Washington as the law of this Arbitration that Great Britain seems disposed to attribute its responsibility to the United States, if, in the judgment of this Tribunal, it shall be held responsible. We respectfully submit that there is no support, in fact or in reason, for this attempted limitation on the period of interest to the date of the Johnson-Clarendon Convention.
(d) The argument of the learned Counsel concludes with a criticism upon the cases under the Jay Treaty, and under the Treaty of Ghent, and the case of the Canada, as decided by Sir Edward Thornton, all of which were adduced by us in our principal argument as pertinent on the question of interest, (p. 220.) We must think, with great respect to the observations of the learned Counsel upon these cases, that their authority remains unshaken. We respectfully submit herewith a [Page 573] statement, showing what computation of interest we suppose would rightly satisfy the demands of the United States in this behalf.
In conclusion, we may be permitted to repeat, in reference to this element of computation of a just indemnity, what we have said on the general measure of indemnity:
This principal question having been determined, if Great Britain is held responsible for these injuries, the people of the United States expect a just and reasonable measure of compensation for the injuries as thus adjudicated, in the sense that belongs to this question of compensation, as one between nation and nation. (American Argument, p. 225.)
It is a matter of the greatest interest to both nations that the actual injuries to private sufferers from the depredations of the cruisers, for which Great Britain shall be held responsible, shall be fairly covered and satisfied by that portion of the award what shall be applicable to and based upon them. That this cannot be expected without an allowance of interest, is obvious.
A recognized right to indemnity, and a deficient provision of such indemnity, should be the last thing to be desired as a solution of this great controversy between these nations.