837.152H11/407
The Acting Secretary of State to the Minister in Cuba (Gonzales)
Sir: Referring to previous correspondence relative to negotiations for arbitration of the claims of the McGivney and Rokeby Construction Company against the Republic of Cuba arising out of the Company’s [Page 93] contract of June 23, 1908 for paving and sewering the City of Habana, the Department instructs you to present the enclosed draft of a protocol90 for arbitration of the Company’s claims to the Cuban Government for its consideration.
In presenting the draft protocol, you will call to the attention of the Cuban Government the following circumstances connected with the contract of June 23, 1908, which distinguish it from ordinary contracts entered into by the Cuban Government with American citizens and which give the Government of the United States a direct interest in its performance, and a right to procure arbitration of disputes arising under it:
By Article I of the Contract of June 23, 1908, the McGivney and Rokeby Construction Company undertook, with certain modifications, the performance of a contract of June [January] 10, 1902, for paving and sewering the City of Habana, made by Samuel P. McGivney and Ralph T. Rokeby with the City of Habana. The Government of Cuba had, in effect, by Article V of the Treaty of 1903 between the United States and Cuba,91 promised the Government of the United States to carry out this contract of 1902. The pertinent provision of the Treaty of 1903 is:
“The Government of Cuba will execute, and, as far as necessary, extend the plans already devised, or other plans to be mutually agreed upon, for the sanitation of the cities of the Island, etc.”
The phrase “plans already devised” etc., has been defined by Proclamation, dated May 20, 1902, of the Military Governor of Cuba upon relinquishing the government of the Island to the Republic of Cuba, as including the McGivney, Rokeby and Company Sewering and Paving Contract.92 The interpretation placed on the treaty provision by Military Governor Wood was in effect assented to by President Palma of Cuba, in a Proclamation accepting the Government of the Island.93 Moreover, in his message to the Cuban Congress of April 28, 1905, President Palma again recognized General Wood’s definition of this phrase of the Treaty and reaffirmed the obligation of the Cuban Government arising from the contract and the treaty provision.94
You are further instructed, in this connection, to remind the Cuban Government that the Convention between the United States and other powers for the Arbitration of Pecuniary Claims,95 to which both the United States and Cuba are signatory, provides that: [Page 94]
“The High Contracting Parties agree to submit to Arbitration all claims for pecuniary loss or damage which may be presented by their respective citizens and which can not be amicably adjusted through diplomatic channels, when said claims are of sufficient importance to warrant the expense of arbitration.”
I am [etc.]