Papers Relating to the Foreign Relations of the United States, 1926, Volume II

441.11 W 892/84

Mr. Spencer Phenix, Assistant to Assistant Secretary of State Olds, to the Secretary of State

[Washington,] November 13, 1926.

Sir: In the report which I submitted under date of November 9, 1926, on the subject of the claims and complaints against the British Government, which have been lodged with the Department of State since August 18, 1910, I pointed out that of the 2658 cases summarized by the Solicitor’s Office 2501 could be eliminated by the application of the provisional rules of exclusion described therein. Of the remaining 157 I pointed out that information had not been obtainable with respect to 62, but that none of these 62 seemed to present serious questions of principle or policy. I then listed in the report the residue of 95 cases which seemed to me to require further consideration by the Department of State, pointing out that in my opinion only 11 cases possessed conspicuous merit.

I realize that it will be difficult for any one who has not gone through the cases as carefully as I to accept the validity of any procedure which results in the survival of only 11 out of 2658 cases. The natural, and almost inevitable, conclusion of a thoughtful person confronted with so extraordinary a result is that there must be some underlying fallacy or error in a procedure permitting such an outcome. I must admit that even I am surprised by the smaller number of conspicuously meritorious cases. I have gone over the ground repeatedly, however, and I am satisfied that I have committed no substantial error in reaching the result set forth in my report of November 9, 1926. The only reservation that I feel that I must make is to the effect that my recommendations are based wholly upon the information contained in the memoranda prepared by the Solicitor’s Office. I have not personally examined the original documents in all the cases.

In view of the surprising nature of my conclusions, it seemed to me desirable to test them by approaching the problem from an entirely different point of view. Accordingly, I requested the British Claims Section of the Solicitor’s Office to furnish me with a list of all the formal claims against the British Government which had been filed with the Department. I received this list the day before yesterday. It covered 39 cases. The disproportion between 2658 cases, which were the subject matter of my inquiry, and the 39 cases which are the basis for formal complaint to the Department is almost as startling as that between the total number of cases and the 11 which I regard as meritorious. In the Department’s reply of last July to the Senate Resolution for information regarding the British Claims situation,^55b the statement was made that included in the mass of correspondence and papers dealing with these claims, “less than 100 represent claims that have been formally presented to the Department with the necessary supporting evidence”. This figure was given me by the Claims Section at the time the Department’s reply was prepared, but the difference between 39 and “less than 100” seemed so great that I made further inquiry, and was told that, in addition to the formal claims filed on the Department’s regular forms, there were other claims which had been presented in memorial form, a method permissible when the claim accrued, but no longer permissible now that the Department has adopted its regular claim form. Upon examination of the claims files it appeared that 96 cases had been submitted in memorial form, making a total of only 134 cases where the claimant has adopted the least formality in presenting his claim. These so-called memorials in numerous instances are no more than affidavits of fact, accompanied by supporting documents. Necessary proof of citizenship or title, and of other vital facts is frequently missing.

The 39 cases covered by formal claims are listed below, together with a brief statement of the disposition which my report of November 9, 1926, shows that I recommended in the light of the provisional rules of exclusion, which you orally approved prior to my departure for London, and in the light of the information which I obtained from the British records. This list shows that I have retained in my residue of 95 cases 11 of these 39 formal claims, that 2 of them fall within the group of cases concerning which I was unable to obtain information in London, and that the remaining 25 have been eliminated through the application of rules 1 to 7.

Case Nos.
10–I	This is a claim for loss of cotton on the S. S. Canadia. I have retained it as meritorious.
10–II	This is a claim on account of cotton shipped on the S. S. Maud to Gothenborg and purchased by the British Government. I have recommended the elimination of this claim because I have a copy of a receipt given by the claimants’ attorneys to the Board of Trade acknowledging full and final settlement of the claim.
50	This is a claim for the loss of 6 registered letters, each containing a check for $25, mailed from New York to Germany. I have recommended the elimination of this claim under rule 1, since the total amount involved is only $150, even admitting that the claimant suffered a total loss.
162	This is a claim for the sequestration by the Australian Government of a one-half interest in a saw mill company in New Guinea. I have recommended the elimination of this claim because it runs against Australia and not against the British Government. The operations of the Australian Government with respect to enemy property seized by it during the war are not subject to control by the London authorities.
188	This is a claim for the detention of the S. S. Seguranca. I have retained it in my residue of 95 cases for the Department’s further consideration. I stated in my report, however, that I recommend the elimination of such detention cases on the ground that the claimant should pursue his legal remedy before the Prize Court. In this case I was informed in London that the period of detention was from March 31, to April 19, that no detention damage claim was ever made in prize court, and that the detention took place pending the reconsignment of the cargo on this vessel to The Netherlands Overseas Trust.
447	This is a claim for $64,307 on account of claimant’s arrest and detention in Ireland and subsequent deportation to the United States. It appears that the deportation was in pursuance of an order issued on the recommendation of the Irish Government. I was told in London that the Irish Free State should be approached in a claim of this sort, rather than the British Government. Accordingly, I have recommended the elimination of this claim. Rule 3 is also applicable.
473–a	This is a claim on account of damage to property in Monastir, which was occupied by Bulgarian troops, and subjected to bombardment by the British, French and Italian warships. This claim, if valid, lies no more against the British Government than against the French and Italian, and I have recommended its elimination, for that reason, as well as for the reason that I do not believe it affords any basis for diplomatic reclamation.
539	This is a claim for $3175 for personal injuries suffered by the three claimants while visiting in the kitchen of the British Light Cruiser Curacao. It appears that the cook demonstrated an oil stove in such a manner as to cause a flame to shoot out and burn the claimants. This case is one concerning which I am expecting information from the Admiralty.
550	This is a claim for $50,000 compensation for the detention, of the claimant by the British authorities from September 12, 1914, to January 5, 1915. I have recommended its elimination under rule 3.
751	This is a claim for $400 on account of the loss of a shipment on the S. S. Santa Catharina. I have recommended its elimination under rule 1 as involving an amount less than $500.
766	This is a claim arising out of the S. S. Edna case. I have retained it as meritorious.
775	This is a claim for $30,481.33 on account of profits lost on contracts with British and other concerns, the fulfillment of which had been prevented or impeded by the war. I have recommended its elimination under rule 5 as a claim involving losses due to domestic British legislation. It also falls under rule 4 as a claim for speculative profits.
828–I	This is a claim arising out of the requisition of the British S. S. Rosalind under charter to the claimant. I have retained this case in the residue of 95 cases which seemed worthy of further consideration, but I have recommended that it, together with all other requisitioned vessel claims, be eliminated.
828–II	This is a claim arising out of the requisition of the British S. S. Georgian Prince under charter to the claimant. Otherwise the same observations apply as in Case No. 828–I.
833	This is a claim for the detention of the S. S. F. J. Lisman. I have retained it in the residue of 95 cases submitted for the further consideration of the Department. I have recommended, however, that it be eliminated, together with other detention cases, on the theory that the claimant should prosecute his legal remedy before the Prize Court, and the Privy Council.
834	This case involves the detention of the S. S. Seaconnet. The same observations apply as in Case No. 833.
835	This is a claim for $5400 on account of the claimant’s detention by the British authorities when a passenger on the S. S. Carpathia. I have recommended its elimination under rule 3.
916	This is a claim for $105,134.50 on account of the arrest of the claimant in England and his detention for 9 days. I have recommended its elimination under rule 3.
1052	This is a claim for £5,000,000 sterling, in which the claimant alleges that the British Government got possession of his death ray apparatus and refused to return the papers. I have recommended the elimination of this case on the ground that it is too fantastic for serious consideration. I might add that the War Office has absolutely no information regarding the claimant or his alleged apparatus.
1088	This is a claim for $2019.20 on account of the sale by the Prize Court of property allegedly owned by the claimant. I have retained it in the residue of 95 cases submitted for further consideration. I am not impressed with its conspicuous merit, but it certainly is entitled to examination.
1183	This is a claim for $1492.92 on account of the loss of personal property through fire in British East Africa. It is a case concerning which no information is obtainable in London.
1314–I	This claim is on account of the sale by the Prize Court of goods consigned to the claimant by a German firm. I learned in London that the proceeds from this sale have been transferred to the Custodian of Enemy Property and are available to the claimant upon proof of title. Accordingly, I have recommended the elimination of this case.
1314–II	This case presents the same facts as Case No. 1314–I, except that the proceeds of the sale are still in Prize Court, where they are available to the claimant upon proof of title. It should be noted, however, that the claimant claims $9736.50, whereas the proceeds of both shipments of goods aggregated only £43 4s. 8d.
1387	This is a claim for $2210.83 representing losses on account of the sale of evaporated apples shipped by the claimant to Sweden and detained at Liverpool. I learned in London that these goods had been sold and that the proceeds, £86 19s. 11d. had been released to the consignees’ representative. Accordingly, I have recommended the elimination of this case, believing that title to the shipment was in the Swedish consignee and not in the American shipper.
1388	This is a claim for $2064.94 on account of losses due to the seizure of a shipment of apples to a Swedish consignee. I learned in London that this shipment was condemned in November, 1920, and that the claimant made no appearance in the Prize Court. As his claim to the Department was submitted March 6, 1920, I have recommended the elimination of this case on the ground that he made no complaint to the Department after the adjudication of his case. Included in this case is a claim for $267.51 on account of another shipment which was released. This claim is covered by rule 1.
1427	This is a claim for $3337.40, representing a loss alleged to have been incurred by the claimant, whose business of shipping balsam from Prague to the United States was interfered with by the British authorities, who are said to have detained such shipments in Rotterdam. I have recommended the elimination of this case because I see no ground for claim against the British authorities, since the latter certainly had no official jurisdiction over the port of Rotterdam.
1447	This is a claim for $10,000 on account of the detention of the claimant for three days at Suez and Port Said. I have recommended its elimination under rule 3.
1470	This is a claim for loss on account of the condemnation of a shipment found by the Prize Court to be the property of a firm with a commercial domicile in enemy territory. The claimant is the Robert College in Constantinople. I have retained this case in the residue of 95 cases submitted for further consideration by the Department, but on the facts as stated I do not see how the claimant could succeed. The goods in question were claimed in Prize Court by the consignor.
1522	This is a claim for $101.76 on account of the non-receipt by the addressee in Germany of 2 drafts mailed by the claimant. I have recommended its elimination under rule 1, since the amount involved is less than $500.
1628	This is a claim for $585.04, representing extra charges on account of a shipment from Germany which was detained in England but subsequently released. I have recommended its elimination under rule 6.
1640	This is a claim for $53,000 on account of the arrest and detention of the claimant in England, and subsequent deportation. I have recommended its elimination under rule 3.
1709	This is a claim for $851.67, representing loss of household goods during the claimant’s banishment from Jerusalem by the Turkish military authorities, under suspicion of having acted in the British interests. I have recommended the elimination of the case because in my opinion it affords no ground for any claim against Great Britain.
1753	This is a claim for $2992 on account of the condemnation of a shipment of oil. I have retained this in the residue of 95 cases submitted for further consideration, but I am not impressed with its merit. The fact of the seizure was notified to the claimant’s manager in Greece in 1916. The shipment was condemned in 1918. No claim was made before the Prize Court by the claimant, or by any other party, and no representations regarding the matter have ever been made to the Procurator General.
1873	This is a claim for loss on account of a shipment of goods to England which were seized and sold by the British authorities because no import license had been obtained. I have recommended its elimination under rule 5.
1951	This is a claim for $850.45 on account of the seizure and sale by the British authorities of a shipment of goods to Germany. I learned in London that these goods had been sold and the proceeds condemned May 10, 1915. I have retained the case in the residue of 95 cases submitted for further consideration.
2011	This is a claim for $12 on account of the loss of a package of harmonicas. I have recommended its elimination under rule 1 as involving less than $500.

I have also made an examination of the 96 memorials, and I find that the cases referred to therein are disposed of under my report of November 9, 1926, as follows:

34 cases are retained by me in the residue of 95 cases submitted for the Department’s further consideration.

2 fall within the group concerning which information was not obtainable in London.

The other 60 were provisionally eliminated under the 7 rules. The number falling within each rule is shown below:

Rule 1	4	Rule 4	3
Rule 2	1	Rule 6	15
Rule 3	20	Rule 7	17

I have not taken the time to treat in this report these 96 cases in the same detail as I have treated the 39 formal claims, but I can do so if you wish me to. For the purpose of the record I am, however, listing below the case numbers of each, together with the disposition thereof which would follow from the acceptance of the recommendations in my report of November 9:

[Here is omitted the list of cases and their disposition.]

The only case in the foregoing list which is not included in the residue of 95 cases submitted for the further consideration of the Department, and which, in my opinion, may possibly have merit, is No. 295, where £1428 18s. 2d. is claimed on account of losses alleged to have been sustained by the claimant through the detention in Ireland and ultimate sale in England of a shipment of rosin and turpentine consigned on a British vessel to Germany. I am not, however, satisfied that there is ground for a valid claim against Great Britain, in the absence of a showing of negligence, and of this there is no evidence. The shipment was made from the United States on July 29, 1914, before the outbreak of war. After the outbreak of war it would have been illegal for a British vessel to have carried a cargo to Rotterdam for a German consignee, as that would have been trading with the enemy. The interruption of the voyage, therefore, was not unreasonable and subsequent losses due to the failure of the consignee to accept drafts covering the shipment, as well as losses through leakage, pending the disposition of the cargo, are scarcely attributable to the British Government.

The result of the foregoing study serves to confirm me in my opinions expressed in my report of November 9, 1926. I am still of the impression that the 11 cases listed therein as possessing conspicuous merit are substantially all, if not all, of such a character.

I am [etc.]

Spencer Phenix

1. For text of the Secretary’s report, see S. Doc. 155, 69th Cong., 1st. sess.