Sir Julian Pauncefote to Mr. Wharton.
Washington, October 17, 1891.
Sir: Immediately on the receipt of your note of the 23d of July last, relative to the form of compensation clause to be inserted in the Behring Sea arbitration agreement, I transmitted a copy of it to the Marquis of Salisbury.
[Page 595]Since then I have been in correspondence with his lordship respecting the new form of clause on that subject proposed in your note as article 7.
I regret to inform you that Her Majesty’s Government, after the fullest consideration, have arrived at the conclusion that this new clause could not properly be assented to by them. In their opinion it implies an admission of a doctrine respecting the liability of governments for the acts of their nationals or other persons sailing under their flag on the high seas, for which there is no warrant in the law of nations. Thus it contains the following words:
The Government of the United States having presented on its own behalf, as well as of the lessees of the privilege of taking seals on the Pribyloff Islands, claims for compensation by reason of the killing of seals in Behring’s Sea by persons acting under, the protection of the British flag, the arbitrators shall consider and decide upon such claims, etc.
These words involve the proposition that Her Majesty’s Government are liable to make good losses resulting from the wrongful action of persons sailing outside their jurisdiction under the British flag.
Her Majesty’s Government could not accept such a doctrine. The article dealing with the question of compensation is therefore likely to give occasion for lengthy negotiations, which must retard indefinitely the decision of the main questions of law, on which the validity of the claims of either Government entirely depend.
Both Governments being equally desirous to find a prompt solution of the difficulty which now impedes the conclusion of the arbitration agreement, Lord Salisbury has authorized me to make the following proposal: His lordship suggests that the six articles of the arbitration agreement already accepted by both Governments should be signed now, and also an article providing for the reference to the arbitrators of any question of fact which either Government may desire to submit to them regarding the claims for compensation to which it considers itself to be entitled. The application of international law to those facts would be left as a matter for future negotiation after they shall have been ascertained, and might be subsequently referred to the arbitrators, in whole or in part, if the two Governments should agree to do so.
The above proposal presents so logical and practical an issue out of the difficulty that I can not but think that it will commend itself to the favorable consideration of the President, and I hope it will meet with, his acceptance.
I have, etc.,