Mr. Tower to Mr.
Hay.
Embassy
of the United States,
St.
Petersburg, August 29,
1899.
No. 84.]
Sir: In compliance with the instructions
contained in your dispatch No. 531 of the 22d of May, 1899, in relation to the proposed
arbitration between the Government of the United States and the
Government of Russia of the claims arising out of the seizure and
detention by Russian cruisers of the American vessels James Hamilton Lewis, C, H. White, Kate and Anna, and Cape Morn Pigeon, I presented last June to the
Count Mouravieff, Imperial minister of foreign affairs, a form of
protocol upon which the proceedings of such arbitration should be
established. This form, of which I have the honor to inclose to you a
copy herewith, is made, in a general sense, to agree with those of
former arbitrations of claims in America. It provides for the submission
to the arbitrator of all the questions of law and fact brought into
issue between the two Governments, together with copies of the
correspondence, documents, and proofs which have already been submitted
for the consideration of either Government in respect of these claims,
and also for the appearance before the arbitrator of counsel for all the
parties in interest, with authority to make oral arguments, at the
discretion of the arbitrator, in addition to those written or printed,
which were provided for.
The Russian Government, however, after having considered that method of
procedure, has sent me a different form, which it prefers, a copy of
which, and of Count Mouravieff’s note of the 12th (24th) of ‘August,
which accompanied it, is respectfully submitted to you herewith.
This method provides only for written arguments before the arbitrator, in
the form of memoranda and counter memoranda, by means of which each
party shall set forth its case within limits as to time, which are
specifically determined.
It is the same as that which is about to be employed for establishing the
procedure in an arbitration of a similar case, soon to be held between
Great Britain and Russia, and was originally proposed by the British
Government to that of Russia for the purpose named.
The plan itself seems eminently a fair one for both parties. But I beg
leave to suggest that, if it were accepted by the Government of the
United States in the matter now under consideration, some modifications
[Page 851]
might be made in respect
of certain details, as, for example, the compensation to be paid to the
arbitrator ought to be fixed and an agreement established between the
two Governments as to the share of it which each should pay. There
should also be a limit of time within which the arbitrator should engage
to render his final decision (the term of one year proposed by me was
merely intended as a suggestion open to argument), and a limit of time
within which the Government of Russia should engage itself to pay any
indemnity awarded by the arbitrator.
It may, perhaps, be considered advisable also to inquire what the precise
meaning is of the phrase relating to the arbitrator’s decision which
provides that, besides following the general principles of international
law, he shall also follow “the spirit of international agreements
bearing upon the subject.” I understand that this provision is one that
was suggested by Russia as a modification of the original plan presented
by Great Britain, but has not as yet been accepted by the British
foreign office.
I have, etc.,
[Inclosure 1.]
Memorandum for a protocol.
Protocol of an agreement between
the Imperial Russian, minister of foreign affairs and the
ambassador extraordinary and plenipotentiary of the United
States of America, for submission to an arbitrator of the claims
arising out of the seizure and detention of the American vessels
C. H. White, James Hamilton Lewis, Kate and Anna, and Cape Horn
Pigeon.
The Government of His Majesty Nicholas II, Emperor of all the
Russias, and the United States of America, through their
representatives, the Count Mouravieff, Imperial Russian minister of
foreign affairs, and Charlemagne Tower, ambassador extraordinary and
plenipotentiary of the United States of America, have agreed upon
and signed the following protocol:
Whereas the United States of America, having claimed indemnity from
the Imperial Russian Government on behalf, respectively, of the
owners, master, and crew of the schooner C. H.
White, seized by the Imperial Russian cruiser Zabiaca in 1892; of the owners, master, and
crew of the schooner James Hamilton Lewis,
seized by the Imperial Russian cruiser Aleute
in 1891; of the owners, master, and crew of the schooner Kate and Anna, seized by the Imperial Russian
cruiser Zabiaca in 1892, and of the owners,
master, and crew of the bark Cape Horn
Pigeon, seized by an Imperial Russian armed vessel in 1892, it
is agreed between the two Governments, with the consent of the said
several parties in interest, given through their respective
attorneys of record:
- I.
- That the questions of law and of fact brought into issue
between the two Governments in respect of each of these said
several claims shall be referred to the decision of Monsieur
T. M. C. Asser, doctor of laws, member of the Royal Council
of State of the Netherlands, who is hereby fully authorized
thereto as arbitrator.
- II.
- That each Government shall submit to the arbitrator within
three months from the day on which both Governments shall
receive official notice from Monsieur T. M. C. Asser that he
accepts the office of arbitrator by permission of his
Government, copies of the correspondence, documents, and
proofs which it has already submitted for the consideration
of the other Government in respect of the said several
claims.
- III.
- That each Government may submit with the documents above
described a separate argument, either written, typewritten,
or printed, setting forth its own Views in each of the said
several cases respectively.
- IV.
- The case of each of the said vessels shall be submitted
separately to the consideration of the arbitrator, and each
of the said cases shall be decided by him singly and
separately upon its own merits as to the questions of law
and of fact brought into
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issue between the two Governments by
the seizure and detention of the vessel to which it
relates.
- V.
- Each of the said several cases may be presented to the
consideration of the arbitrator by separate counsel duly
authorized thereto and empowered by either Government to act
for it as counsel in such case, or the same counsel may be
duly authorized and empowered by either Government to act
for it in presenting two or more of the said several cases
successively. And the arbitrator may, in his discretion,
hear oral arguments of counsel in any or all of the said
several cases in addition to the written or printed
arguments above provided for. He may also call for evidence
or arguments elucidating particular points not made clear to
him if he shall deem it necessary to do so after having
examined the documents submitted to him.
- VI.
- The arbitrator shall render his decision as to all the
said cases within one year from the date of the submission
to him of the proofs, documents, and evidence by both
parties. He shall decide whether, upon the proofs,
documents, evidence, and arguments submitted to him, the
owners, master, and crews, respectively, or any of them, of
the said vessels, the C. H. White, James
Hamilton Lewis, Kate and Anna, and the Cape Horn Pigeon, are or are not
entitled to indemnification on the part of the Imperial
Russian Government, and in the event that he shall decide
this point affirmatively with respect to any or all of the
said claimants, he will fix the amount of the indemnity to
which each or either is entitled.
- VII.
- Reasonable compensation to the arbitrator, and the other
common expenses occasioned by the arbitration, shall be paid
in equal moieties by the two Governments.
- VIII.
- Any award made by the arbitrator shall be final and
conclusive, and if in favor of the claimants or of either or
any of them and of the contention of the United States of
America, the amount or amounts so awarded shall be paid by
the Imperial Russian Government not later than one year from
the date of such award.
Done in duplicate at St. Petersburg this ----- day of ------,
1899.
[Inclosure 2.]
Count Mouravieff to Mr. Tower.
[Translation.]
Ministry of Foreign Affairs,
First Department, August 12, 1899.
No. 4131.]
In supplement to the communication No. 3227, of the 26th of June,
1899, the imperial ministry of foreign affairs has the honor to
announce to the embassy of the United States that the form of
protocol to establish rules of procedure in the arbitration of
claims arising out of the seizure by Russian cruisers of the
American schooners James Hamilton Lewis, C. H.
White, Kate and Anna, and Cape Horn
Pigeon has been carefully examined by the ministry of
foreign affairs and the ministry of marine.
In view of the fact that in the form submitted by the embassy the
limit of expenses does not appear to be sufficiently defined, and
since in a similar case the ministry has recently proposed to the
British Government another plan of arbitration which seems better to
serve the interests of both parties to the litigation, the ministry
of foreign affairs, with the concurrence of the ministry of marine,
has the honor to submit herewith a copy in French, with the request
that the embassy will communicate to it the opinion of the
Government of the United States in regard to that plan.
[Subinclosure—Translation.]
The Imperial Government of Russia and the Government of the United
States of America having agreed to invite M. Asser, member of the
council of state of the Netherlands, to act as arbitrator in
connection with the claims of the schooners James
Hamilton Lewis, C. H. White, Kate and Anna, and Cape Horn Pigeon, arising out of their
detention or seizure by Russian cruisers on the charge of having
been illegally engaged in fur-seal fishing, the undersigned minister
of foreign affairs of His Majesty the Emperor of Russia having been
duly authorized thereto, has the honor to make
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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 in the said schooners.
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.
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 bearing upon 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.
In that event the arbitrator shall fix the amount of the indemnity to
be paid by the Russian Government in respect to the claims presented
by the parties in interest in the said vessels.
If he wishes to do so without, however, lessening the obligation
incumbent upon the party claimant to prove the damages suffered, the
arbitrator may invite each Government to appoint a commercial expert
to aid him in that 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; 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.