Record of the proceedings of the tribunal of arbitration at the fifth conference held at Geneva, in Switzerland, on the 19th of June, 1872.
The conference was held pursuant to adjournment. All the arbitrators were present.
Arbitrators declare that indirect claims not a subject for computation of damages. Mr. J. C. Bancroft Davis and Lord Tenterden attended the conference as agents of the United States and Her Britannic Majesty, respectively.
The protocol of the last conference was read and approved, and was signed by the president and secretary of the tribunal and the agents of the two governments.
Count Sclopis, as president of the tribunal, inquired whether Mr. Bancroft Davis had yet received definitive instructions from his Government.
Mr. Bancroft Davis replied that he had not.
Count Sclopis then, on behalf of all the arbitrators, made the following statement:
The application of the agent of Her Britannic Majesty’s government being now before the arbitrators, the president of the tribunal (Count Sclopis) proposes to make the following communication on the part of the arbitrators to the parties interested:
The arbitrators wish it to be understood that in the observations which they are about to make they have in view solely the application of the agent of Her Britannic Majesty’s government, which is now before them, for an adjournment, which might be prolonged till the month of February in next year; and the motives for that application, viz, the difference of opinion which exists between Her Britannic Majesty’s government and the Government of the United States as to the competency of the tribunal, under the treaty of Washington, to deal with the claims advanced in the case of the United States in respect of losses under the several heads of—1st, “The losses in the transfer of the American commercial marine to the British flag;” 2d, “The enhanced payments of insurance;” and 3d, “The prolongation of the war, and the addition of a [Page 20] large sum to the cost of the war and the suppression of the rebellion;” and the hope which Her Britannic Majesty’s government does not abandon, that if sufficient time were given for that purpose, a solution of the difficulty which has thus arisen, by the negotiation of a supplementary convention between the two governments, might be found practicable.
The arbitrators do not propose to express or imply any opinion upon the point thus in difference between the two governments as to the interpretation or effect of the treaty; but it seems to them obvious that the substantial object of the adjournment must be to give the two governments an opportunity of determining whether the claims in question shall or shall not be submitted to the decision of the arbitrators, and that any difference between the two governments on this point may make the adjournment unproductive of any useful effect, and, after a delay of many months, during which both nations may be kept in a state of painful suspense, may end in a result which, it is to be presumed, both governments would equally deplore, that of making this arbitration wholly abortive. This being so, the arbitrators think it right to state that, after the most careful perusal of all that has been urged on the part of the Government of the United States in respect of these claims, they have arrived, individually and collectively, at the conclusion that these claims do not constitute, upon the principles of international law applicable to such cases, good foundation for an award of compensation or computation of damages between nations, and should, upon such principles, be wholly excluded from the consideration of the tribunal in making its award, even if there were no disagreement between the two governments as to the competency of the tribunal to decide thereon.
With a view to the settlement of the other claims to the consideration of which by the tribunal no exception has been taken on the part of Her Britannic Majesty’s government, the arbitrators have thought it desirable to lay before the parties this expression of the views they have formed upon the question of public law involved, in order that after this declaration by the tribunal it may be considered by the Government of the United States whether any course can be adopted respecting the first-mentioned claims which would relieve the tribunal from the necessity of deciding upon the present application of Her Britannic Majesty’s government.
Count Sclopis added that it was the intention of the tribunal that this statement should be considered for the present to be confidential.
Count Sclopis then asked whether the agents or either of them wished to say anything touching the declaration just made.
Mr. Bancroft Davis said that he was necessarily without instructions to meet the contingency which had arisen from the action thus taken by the arbitrators. He therefore left it with the tribunal to say whether, in view of this fact, it ought not of its own motion to make an adjournment sufficient to afford time for the proper consideration of the new position created by the announcement of the tribunal.
The tribunal then ordered this conference to adjourn until Wednesday the 20th instant, at 2 o’clock in the afternoon.
- FREDERICK SCLOPIS.
- J. C. BANCROFT DAVIS.
- TENTERDEN.
- ALEX. FAVROT, Secretary.