Sir Julian Pauncefote to Mr. Wharton.
Washington, October 23, 1891.
Sir: I have the honor to acknowledge the receipt of your note of yesterday’s date in reply to mine of the 17th instant, in which I stated the grounds on which Her Majesty’s Government found themselves unable to accept the form of clause relating to damages proposed in your note of July 23 last, for insertion in the Behring Sea arbitration agreement. In that note I informed you that I had been authorized by the Marquis of Salisbury, with a view to a prompt settlement of the difficulty, to make the following suggestions, namely, 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.
In your note under acknowledgment, in which you reply to the above suggestion, you advert to the discussions and informal conferences which have taken place on the subject of the clause dealing with the question of damages, and you state that the President is unable to see how the seventh clause proposed in your note of the 23d of July last can be held to imply an admission on the part of Great Britain “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 international law.” Those are no doubt the terms in which I stated generally the objection of Her Majesty’s Government to the form of clause in question. But I am relieved from explaining their objection in greater detail by the proposal of the President, with which your note concludes, to substitute a new clause which substantially carries out Lord Salisbury’s suggestion.
You state that the President has thought it best to terminate the discussion by proposing to me 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 [Page 598] 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 glad to be able to announce to you that I have received by telegraph the authority of Lord Salisbury to accept the above clause on behalf of Her Majesty’s Government, and in doing so I beg to express my gratification at this satisfactory solution of the difficulty which has delayed the conclusion of the arbitration agreement.
I have, etc.,