Mr. Wharton to Sir Julian Pauncefote.
Washington, October 22, 1891.
Sir: I have laid before the President your note of the 17th instant, and he directs me to express his regret that your Government has not seen fit to accept the modified form of the seventh clause which was proposed in my note of July 23 last.
This modification of the clause in question was made with a view to obviate the objection urged in your note of July 13, and the President is unable to see how it can be held to imply an admission on the part of Great Britain “of a doctrine respecting the liability of governments [Page 596] for the acts of their nationals or other persons sailing under their flag on the high seas, for which there is no warrant in international law.” The proposition was expressly framed so as to submit to the arbitrators the question of the liability of each Government for specified acts complained of by the other, and its language no more implies an admission of liability on the part of one Government than on the part of the other. It is precisely because the two Governments can not agree as to the question of liability that arbitration becomes necessary. The facts upon which the respective claims for compensation rest are not seriously in dispute, to wit, the seizure of vessels and the, killing of seals in Behring Sea, and it would probably not require the aid of arbitrators for their ascertainment. But it is the more important and difficult question of liability respecting which the two Governments find it necessary to invoke the interposition of impartial arbitration.
It was not the intention of this Government to require of Great Britain any admission of liability for the acts complained of, but it has felt that, if the arbitration was to result in a full settlement of the differences between the two Governments, the question of respective liability for these acts should go to the arbitrators tor decision.
In the informal conferences which have taken place between us since the date of my note of July 25, you will remember that I have solicited from you any suggestions in support of the objection that the modified clause assumes a liability on the part of your Government, having in view on my part an amendment of the phraseology to overcome the objection; and I have to express disappointment that no such suggestions were found in your note of the 17th instant. It was for this reason, and in the hope that the clause might be made acceptable to your Government, that after the receipt of your note I submitted to you informally the following amendment to be added to the seventh clause as proposed in my note of July 23:
The above provision for the submission to the arbitrators by the United States of claims for compensation by reason of the killing of seals by persons acting under the protection of the British flag shall not be considered as implying any admission on the part of the Government of Great Britain of its liability for the acts of its nationals or other persons sailing under its flag.
We have now been informed by you that your Government is unwilling to accept the clause even with this addition by way of amendment.
When in your note of February 21 last you communicated the desire of Lord Salisbury for a “reference to the arbitrator of the question of damages due to persons who have been injured, in case it should be determined by him that the action of the United States in seizing British vessels has been without warrant in international law,” the President cheerfully accepted the suggestion, and coupling with it the claim of damages preferred by the United States, proposed to submit both questions, as presented by the respective Governments, to arbitration, thus making a complete and final settlement of all differences between the two Governments connected with the seal fisheries. To withdraw this comprehensive submission of specified claims and substitute for it a mere reference to the arbitrator of questions of fact touching the same claims which are not to be held binding upon either Government, as you propose, is, in the opinion of the President, an imperfect, and he fears may prove an ineffectual, disposition of the question of claims. But, having failed in his efforts by modification and amendment to secure the acceptance by your Government of the clause for a full adjustment of these claims, and heartily participating in the desire expressed [Page 597] in your note for a prompt solution of the difficulty which impedes the conclusion of the arbitration, he has thought it best to terminate the discussion by proposing to you the following, to constitute the text of clause 7:
The respective Governments having found themselves unable to agree upon a reference which shall include the question of the liability of each for the injuries alleged to have been sustained by the other or by its citizens, in connection with the claims presented and urged by it, and being solicitous that this subordinate question should not interrupt or longer delay the submission and determination of the main questions, do agree that either may submit to the arbitrators any question of fact involved in said claims and ask for a finding thereon, the question of the liability of either Government upon the facts found to be the subject of further negotiation.
I am, etc.,
Acting Secretary.