411.93 C 44/1a

President Harding to the Senate and House of Representatives

To the Senate and House of Representatives:

I transmit herewith a report from the Acting Secretary of State in relation to four claims presented by the Government of China against the Government of the United States arising out of the negligent or unlawful acts in China of persons connected with the military and naval service of the United States, and I recommend that as an act of grace and without reference to the question of the legal liability of the United States, an appropriation in the amount of $5,913.79 be made to effect settlement of these claims in accordance with the recommendation of the Acting Secretary of State.99

[
Warren G. Harding
]
[Page 827]
[Enclosure]

The Acting Secretary of State to President Harding

The President: I have the honor to submit with a view to its transmission to the Congress the following report and recommendation relative to four claims presented by the Government of China against the Government of the United States arising out of the negligent and unlawful acts of persons connected with the military and naval service of the United States:—

(1) Hilton A. Williams (alias Carter) and John Rohrer (alias Cook), both deserters from the American military forces stationed at Tientsin, China, in 1915, committed a robbery near Jehol, China, and Rohrer shot and killed a Chinese policeman who in the course of his duty had attempted to arrest them. When taken into custody, both men claimed to be British subjects and were, therefore, turned over by the Chinese authorities to the British Consul General at Mukden for trial by the British authorities. From Mukden they were transferred to Shanghai, where it was discovered that they were American citizens. Upon being arraigned before the United States Court for China, both men pleaded guilty; Williams to the crime of robbery, and Rohrer to that of murder.

In connection with the trial of these men, certain Chinese witnesses (the number is not indicated) were sent from Jehol to Mukden and from Mukden to Shanghai at the request of the British authorities. They were required to wait several months before the trial took place, and as a consequence incurred considerable expense for travel, lodging, et cetera. The Chinese Government has presented a claim for Mexican $6,195, covering these expenses. The matter of expense of the witnesses was brought to the attention of the Judge of the United States Court for China, with the hope that some allowance for witness fees might be made by the court but it appears that the Judge has taken the position that inasmuch as the witnesses failed to make application for the payment of fees within the time prescribed by law, there is no legal method by which such fees may now be paid.

The Chinese Government in a communication dated April 14, 1919,1 and in a number of communications since that date, the last one bearing date of December 31, 1921,1 has requested that this Government reimburse the witnesses for the expenses incurred by them in attending the trials and that a compassionate allowance be given to the family (five dependents) of the Chinese policeman whom Rohrer killed. The American Minister at Peking has expressed the opinion that the claim for expense is exorbitant and [Page 828] that $1,000 would cover the amount. He has recommended an allowance of $1,000 for the expense incurred and $500 as a solatium for the family of the Chinese policeman who was killed.

(2) The U.S.S. Palos, in October, 1917, while convoying the Steamer Meitan up the Yangtze River, caused the sinking of a Chinese junk, with its cargo, and the drowning of two Chinese citizens. The accident is said to have been due to the failure of the American vessel to sound its whistle or otherwise give warning of its approach.

In a communication of December 14, 1917,2 and in a number of subsequent communications,2 the Chinese Government has requested that this Government reimburse the owners of the junk and cargo for the losses sustained by them, and pay a solatium to the families of the two Chinese who were drowned, who are said to be in extremely destitute circumstances. The Navy Department apparently admits liability for the sinking of the junk, and has recommended an appropriation for the payment of damages. Upon the recommendation of that Department, a bill was introduced in the House of Representatives on August 1, 1921, providing for the payment of the sum of $2,413.79 to the Chinese Government. This bill passed the House of Representatives on November 5, 1921, and it is understood that it is at present before the Senate Committee on Claims.

(3) Homer Merritt Darke, a Ship’s Cook of the Third Class, United States Navy, who was serving on the United States Steamship Elcano, while that vessel was anchored in the Yangtze River on September 4, 1920, seized a Chinese cobbler who had peaceably boarded the vessel apparently for the purpose of collecting a debt and without justifiable cause threw him overboard into the river. The man whose body was not recovered is said to have left a widow and four minor children. Darke was tried for the offense in the United States Court for China and was sentenced to a term of imprisonment for two years and to pay a fine of $500 and costs.

The Chinese Government in a communication of September 20 [13?], 1920,2 and subsequent communications,2 has requested that a monthly allowance for the maintenance of the widow be paid by this Government until a son, who at that time was stated to be ten years of age, reaches his majority. It is understood that the Navy Department has recommended that the sum of $1,000 be appropriated as an indemnity for the widow, but that the recommendation has not as yet been acted upon by Congress.

(4) The fourth case is that of Private Petticrew, of the Quartermaster Corps, assigned to the United States Army Transport Merritt, who, in September, 1920, while ashore on leave at Chinwangtao, [Page 829] China, entered a Chinese wine shop and, without provocation, shot and killed Li Shih Chi, a native employee therein. It is stated that the soldier, who was under the influence of intoxicants, upon entering the shop fired an automatic pistol at Li Shih Chi and killed him while he was in the act of escaping from the place; that he then turned and fired upon the proprietor but the shot did not take effect. Petticrew was tried for the offense by general court martial at Tientsin, China, and was sentenced to be dishonorably discharged from the service, to forfeit all pay and allowances, and to be confined at hard labor for the period of his natural life.

The Chinese Government has several times requested that some allowance be made for the benefit of the family (a wife and four children) of the Chinese citizen whom Private Petticrew killed.

The foregoing claims, with the possible exception of the first one which relates to the payment of witness fees, arise out of the negligent and unlawful acts committed in China by persons connected with the military and naval service of the United States. While under the generally accepted principles of international law there would appear to be no legal liability upon the part of this Government to settle these claims, the fact that the atrocities were committed on Chinese soil by members of our armed forces places upon this Government a degree of responsibility. Moreover, this Government has pressed to a satisfactory settlement with the Chinese Government claims of American citizens arising out of circumstances somewhat analogous to those here presented and the Department feels that it would be well for this Government to show its willingness to reciprocate when the situation is reversed.

One of the American claims which the Department has in mind arose on January 17, 1918, when the United States Steamship Monocacy, while proceeding up the Yangtze River, was fired upon, from the shore, by Chinese rebels. Chief Yeoman Howard Leroy O’Brien was killed and Seamen Donnolly and Ferguson sustained injuries as a consequence of the attack. As a result of representations which the Department made to the Chinese Government, that Government paid this Government as indemnity $25,000 (and interest) for Mrs. O’Brien and her children, and $500 (and interest) for each of the two seamen who had been injured. These payments were recently made through the Department of State.

I have the honor to suggest that you recommend to the Congress that as an act of grace and without reference to the question of the legal liability of the United States, an appropriation in the sum of $5,913.79 be made to effect settlement of these claims, distribution thereof to be made as follows:

For the reimbursement of witnesses for the expenses incurred by them while in attendance at the trial of Williams and Rohrer and [Page 830] indemnity for the relatives of the deceased Chinese policeman killed by Rohrer, $1,500.

For the reimbursement of the owners of the junk and cargo sunk by the United States Steamship Palos on the Yangtze River, including indemnity for the relatives of the two Chinese citizens who were drowned, $2,413.79.

As an indemnity for relatives of the Chinese cobbler who was thrown into the Yangtze River by Cook Darke, and of the Chinese shop assistant killed by Private Petticrew, $1,000 each,—$2,000.

Respectfully submitted,

Henry P. Fletcher

  1. Payment of these claims was authorized by the “Second Deficiency Act, Fiscal Year 1923”, approved Jan. 22, 1923 (42 Stat. 1154, 1161).
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