This draft includes, as you will observe, the minor corrections of the
original language which have been accepted by the Imperial minister for
foreign affairs, as well as the qualifying clause added to the phrase:
“And the spirit of international agreements applicable to the
subject.”
As soon as I shall have been instructed by you of your assent to this
form of the protocol, I shall notify the Russian Government accordingly
and request that the negotiations may further proceed.
I understand that, after the signing of the protocol in due form, it is
the desire of the Russian minister for foreign affairs that a note shall
be addressed by each Government through its representative at The Hague,
upon the same day, to Mr. Asser requesting him to act as arbitrator in
these cases.
I await your further instructions in regard to that.
[Inclosure.]
The Imperial Government of Russia and the Government of the United
States of America, having agreed to invite Mr. Asser, member of the
council of state of the Netherlands, to act as arbitrator in
connection with the claim of the schooners James
Hamilton Lewis, C. H. White, Kate and Anna, their owners,
officers, and crews, arising out of their detention or seizure by
Russian cruisers on the charge of having been illegally engaged in
fur-seal fishing, and the claim of the whaling bark Cape Horn Pigeon, her owners, officers, and
crew, arising out of her detention or seizure by a Russian cruiser,
the undersigned minister for foreign affairs of His Majesty the
Emperor of Russia, having been duly authorized thereto, has the
honor to make hereby the following declaration in exchange with a
similar declaration upon the part of the Government of the United
States of America.
The arbitrator shall take cognizance of the claims for indemnity
which have been presented to the Imperial Government of Russia by
the Government of the United States on behalf of the parties in
interest.
The party claimant shall present to the arbitrator, within three
months from the date of the exchange of the present note with an
identical one of the United States Government, a memorandum in
support of its claim, and shall hand immediately a copy thereof to
the party defendant.
Within three months from the date of the receipt of the said copy,
the party defendant shall present to the arbitrator a
contramemorandum, of which it shall hand immediately a copy to the
party claimant.
Within three months after the receipt of such contramemorandum the
party claimant may, if it sees fit to do so, present to the
arbitrator a new memorandum, of which it shall hand immediately a
copy to the party defendant; and the latter may also, within three
months from the receipt thereof, present to the arbitrator a new
contramemorandum, of which it shall hand immediately a copy to the
party claimant.
The arbitrator shall be authorized, at the request of either of the
parties, to extend for a period of not longer than thirty days, any
of the intervals of time hereinabove provided for.
After the exchange of memoranda as herein aforesaid, no
communication, either written or verbal, shall be addressed to the
arbitrator, unless he shall request from the parties, or either of
them, supplementary information to be given in writing.
The party so giving information to the arbitrator shall hand
immediately a copy of its communication to the opponent, who may, if
he thinks fit to do so, present in writing to the arbitrator within
one month from the date of his receipt thereof comments relating to
the subject-matter of the said communication, and a copy of such
comments shall be sent immediately to the party opponent.
The arbitrator shall have authority to decide all questions that may
arise in regard to procedure in the course of the arbitration.
The arbitrator shall render his decisions in all the cases within six
months from the date of the delivery to him of the last memorandum
or contra memorandum provided for in this agreement.
In his decision, which shall be communicated by him to each of the
two Governments interested, the arbitrator following the general
principles of international law and the spirit of international
agreements applicable to the subject, shall determine as to each
claim brought against the Imperial Government of Russia whether such
claim is well founded; and, if he decides affirmatively, whether the
facts upon which each of the said claims is based have been proven.
It is understood and agreed that this stipulation shall have no
retroactive force, and that the arbitrator shall apply to the cases
now in litigation the principles of international law and of
international agreements which were in force and binding upon the
parties to this litigation at the moment when the seizures
aforementioned took place.
The arbitrator shall fix the amount of any indemnity to be paid by
the Russian Government in respect to the claims presented by the
parties in interest.
If he wishes to do so, without, however, lessening the obligation
incumbent upon the party claimant to prove the damage suffered, the
arbitrator may invite each Government to appoint a commercial expert
to aid him in this capacity in fixing the amount of the
indemnity.
The Imperial Government of Russia declares itself ready, in exchange
with a similar agreement upon the part of the Government of the
United States, to assume all expenses which may or shall be incurred
in the presentation of its side of the case in this matter, and to
pay one-half of the compensation of the arbitrator for his services;
also to accept as a final judgment the decision pronounced by the
arbitrator within the limits of the present agreement, and to submit
thereto without any reservation whatsoever.
Any amount awarded by the arbitrator in favor of the claimants, or
either of them, shall be paid by the Government of Russia within one
year from the date of the award.
