Papers relating to the foreign relations of the United States, 1929, Volume II

493.11N15/316

The American Commissioners on the Sino-American Joint Commission to the Secretary of State

Shanghai, March 15, 1929.
[Received April 15.]

Sir: The American Commissioners on the Sino-American Joint Commission for the assessment of damages for American losses at Nanking have the honor to enclose the final awards of the Commission as signed and sealed on March 15th [13th], and to submit this final report on the work of the Commission. Details of the Commission’s previous activities have already been reported to the Department in the Commissioners’ confidential communications of October 12, 1928, November 19, 1928, December 27, 1928, February 6, 1929, and March 9, 1929,⁶⁵ and in a number of telegrams transmitted through the Legation at Peking.

In assessing the claims for American losses at Nanking, the American Commissioners were in general guided by the Department’s telegraphic instruction No. 315 of September 17, 4:00 p.m. to the Legation,⁶⁶ to the effect that:

“As to the value to be used as the measure of damages, … the Department’s view would be that generally the actual value of the property at the time of the loss, as nearly as ascertainable, should be used.”

The claims as filed were in general very reasonable in nature and in only a few instances were there encountered claims in which there appeared conclusive evidence of an overstatement of values, the Commission reducing such claims in accordance with the evidence. Seasonable amounts were written off for depreciation in certain of the large number of cases in which values were stated in terms of cost of goods purchased over a period of years, although in a number of these cases, the valuations were so modest in nature that the Chinese Commissioners agreed to the American Commissioners’ proposal that the claim be assessed in the full amount claimed. Of the 122 individual claims assessed, 45 were assessed as presented, while the bulk of the remainder were subject to comparatively slight reductions, each case being decided on its merits, so far as these merits could be determined from the claim as filed and from collateral evidence available to the Commissioners.

The Chinese Commissioners in the main evinced a spirit of conciliation and fairness in reference to the assessments, although in a number of cases they made most unreasonable attacks on claims which appeared entirely legitimate in every way. The American Commissioners, however, had an unfailing source of strength in such cases in the provision that the sworn statements of American citizens were to be accepted as ‘prima facie’ evidence which was to be questioned only upon proof of error. After their experiences in the matter, the American Commissioners are of the opinion that but for this provision in the exchange of notes, the assessment of damages at all commensurate with the losses suffered would have been out of the question.

In assessing damages to immovable property, the Chinese Commissioners agreed to the following scale of depreciation for buildings:

First five years after construction	No depreciation.
First ten years thereafter	2½ per cent per annum.
Second ten years thereafter	1½ per cent per annum on first depreciated valuation.
Third ten years thereafter	½ per cent per annum on second depreciated valuation.

This scale, as compared with those supplied to the American Commissioners by the local real estate and insurance companies, was a very favorable one and in most cases was liberally construed by the Commission, which was working with figures based on the appreciated cost of building materials and workmanship.

As reported in the American Commissioners’ telegram of November 23, 10:00 a.m. to the Legation,⁶⁷ only one of the claims presented to the Commission contained a specific claim for rental of the property (which had been forcibly occupied by Nationalist troops for a number of months). The Chinese Commissioners held that such claim was not a proper chargé against the National Government, the American Commissioners holding the opposite view. The matter was accordingly referred to the Legation, which in its telegram No. 298 of December 1, 4:00 p.m., quoted the Department’s instruction to the Legation of November 30, 6:00 p.m.,⁶⁸ reading in part as follows:

“One. Department considers that claim for rental as such cannot be supported on legal grounds but will leave to the discretion of the Commissioners to decide to what extent the argument of simple justice should be pressed.”

This original instruction was later modified by the Department’s telegraphic instruction of December 17, 5:00 p.m. to the Legation,⁶⁹ but the American Commissioners in the meantime had been pressing the claim as a matter of simple justice and the Chinese Commissioners on these grounds had agreed to a readjustment, without making any formal definite ruling on the matter of rental. This was possible because of a dispute concerning the exchange rate used in converting gold to Chinese currency, and the claim was assessed as a whole in accordance with the usual practice governing the assessment of organization claims.

The American Commissioners, as reported in each of their previous communications to the Department, experienced much difficulty in securing the attendance of the Chinese Commissioners at meetings, both Commissioners holding concurrent positions in the Government at Nanking, which necessitated frequent trips to that city. …

. . . . . . . . . . . . . .

As reported in the American Commissioners’ telegrams of January 30, 10:00 p.m. and January 31, 7:00 p.m. to the Legation,⁷⁰ the Commission on the latter date had assessed all claims other than the Hobart claim for personal injuries, the Department’s telegraphic advices as to the examining surgeon’s report on Mr. Hobart’s injuries not having been received until January 31st, too late for consideration at the Commission’s meeting held that morning.

In the same telegrams the American Commissioners requested instructions as to the action to be taken in reference to the American Government claims; and reported a deadlock between the American and Chinese Commissioners in reference to the matter of interest on claims and the admission of the claims of four American citizens of the Chinese race. Report was also made of certain difficulties encountered in reference to the negotiations looking to the replacement of American owned deeds lost as a result of the disturbances at Nanking.

The American Government’s claim⁷¹ as presented in the Legation’s telegram of March 4, 5:00 p.m. to the American Commissioners was accepted and approved by the Commission on March 13th, while the matter of the replacement of lost deeds was adjusted by the Commission’s formal recommendation which constitutes Section five of the final report signed by the American and Chinese Commissioners and enclosed herewith.

However, all efforts by the American Commissioners to break the deadlock which existed on January 31st in reference to interest on claims and the claims of four American citizens of the Chinese race, proved unavailing and the Commission in its final report of March 13, 1929, noted division in reference to these two questions as instructed in the Department’s telegram of February 27, 12:00 p.m. to the Legation, this instruction having been received by the American Commissioners on March 5th in the Legation’s telegram No. 43 of March 4, 5:00 p.m.

Detailed confidential memoranda as to the negotiations before and after January 31, 1929, in reference to interest and the four claims of Chinese-Americans are being submitted under cover of separate despatches of today’s date⁷² supplementing this final report, so will not be referred to at greater length here.

In accordance with the instructions contained in paragraph 2 of section 7 of the Department’s telegram of January 28th to the American Commissioners,⁷³ the original copies of all claims appearing on the final list of awards together with the original book of minutes and all other archives of the Commission are being handed over to the American Consul General at Shanghai for safekeeping. The file of claims consists of 117 individual claims and 14 group or organization claims, each claim being contained in a manila envelope with the name of the claimant written thereon, while the minutes and other archives are contained in nine Shipman binders duly indexed.

We have [etc.]

• C. J. Spiker
• V. G. Lyman

[Enclosure]

Final Report of the Sino-American Joint Commission

(Nanking Incident Claims)

The Sino-American Joint Commission having been instituted by the exchange of notes between the American and Chinese Governments in settlement of the Nanking Incident, “to verify the actual injuries and damages suffered by the American residents (at Nanking) at the hands of the Chinese concerned, and to assess the amount of compensation due in each case”, held its first meeting on August 27, 1928, and concluded its work this 13th day of March, 1929, having held forty formal meetings.

The assessments and findings of the Commission are embodied in the following report which is divided into five parts, namely:

I. American Government claims.

II. Private Claims;

A. Individual Claims,

B. Group or organization Claims.

III. Claims Waived and Withdrawn.

IV. Divided opinions of the Commission on the questions of interest and of nationality of Chinese-American claimants.

V. Recommendation for replacement of lost deeds.

I. American Government Claims

In accordance with the identic instructions to the Commissioners from their respective Governments “that all American Government claims, including those of the consular officials and staff of the consulate, should be accepted and approved as presented”, the Commission accepts and approves as presented, the American Government claims in the following sums:

A. Losses of American Government owned property U. S. Gold $8,321.97 (eight thousand three hundred twenty-one dollars and ninety-seven cents);

B. Property losses of officers and employees of the American Consulate at Nanking U. S. Gold $45,889.25 (forty-five thousand eight hundred eighty-nine dollars and twenty-five cents);

C. Property losses of United States Navy personnel U. S. Gold $339.30 (three hundred thirty-nine dollars and thirty cents), and Chinese Currency $97.00 (ninety-seven dollars);

making a total of U. S. Gold $54,550.52 (fifty-four thousand five hundred fifty dollars and fifty-two cents) and Chinese Currency $97.00 (ninety-seven dollars).

II. Private Claims

The Commission, having been instituted “to verify the actual injuries and damages suffered by the American residents at the hands of the Chinese concerned, and to assess the amount of compensation due in each case”, has carried out these instructions and made the following assessments of the claims of American individuals and organizations, the amount of the several claims and assessments thereon being set down in the following schedule:

[Here follows list of 116 individual claims totaling $755,285.96, with assessments of $639,963.75 and of 14 group or organization claims totaling $286,746.19, with assessments of $247,213.83, a grand total of individual and group claims of $1,042,032.15, with assessments of $887,177.58, all in Chinese currency.]

III. Claims Waived and Withdrawn

In addition to the claims listed in the foregoing sections of this report, the following claims were presented to the Commission for its consideration but were subsequently waived or withdrawn by the parties concerned:

[Here follows list of 7 individual claims totaling $45,658.77 and 2 group claims totaling $100,030.14, all in Chinese currency.]

IV. Divided Opinions of the Commission on the Questions of Interest and of Nationality of Chinese-American Claimants

Owing to the conflict of the nationality laws of China and of the United States of America, the American and Chinese Commissioners are divided in their opinions on the question of the nationality of Dr. John Y. Woo, Dr. Paul S. Woo, Mr. Timothy D. Woo and Mr. Francis Woo, four Chinese-Americans, whose claims are accordingly dismissed by the Commission without prejudice to the rights of the American Government or of the claimants elsewhere.

In reference to interest on claims, the American Commissioners hold that the National Government having undertaken in the agreement for the settlement of the Nanking claims “to make compensation in full for all personal injuries and material damages done to the American Consulate and to its officials and to American residents and their property at Nanking”, any settlement which does not take into account the lapse of time between the date the loss or injury was suffered and the date of payment of the assessments on claims cannot constitute “compensation in full” and does not conform to the agreement.

The Chinese Commissioners however hold that the Commission is limited in its power by the exchange of notes and by the identic instructions to the Commissioners from their respective Governments, and that the question of interest is therefore without the competence of the Commission to decide. Furthermore, they are of the opinion that, granting such decision is within the competence of the Commission, interest on claims is a matter of contract and, in the absence of explicit provision in the exchange of notes and/or the identic instructions to the Commissioners, cannot be allowed.

The Commission accordingly records its division on the question of interest on claims, which action however is without, prejudice to the rights of the American Government to negotiate for adjustment of the matter through another channel.

V. Recommendation for Replacement of Lost Deeds

In reference to the loss of certain deeds by the American Consulate and by American residents at Nanking, the Commission recognizes that they should be protected from possible damage arising from such loss, and the Commission accordingly makes formal recommendation to the National Government that, upon application by the American Consulate at Nanking, the National Government will take steps to replace, without cost to the American citizens concerned, any deeds lost as a result of the disturbances at Nanking. American claimants for such losses should comply so far as practicable and possible with the regulations governing the replacement of lost deeds. The Commission is of the opinion that as in the case of other claims for losses, the sworn statements of claimants for lost deeds, supported by a certificate from the American Consulate at Nanking based on its records and/or other knowledge, should be accepted as ‘prima facie’ evidence by the Chinese authorities concerned.

Done at Shanghai, China, March 13, 1929.

C. Kuangson Young

Chinese Commissioner

Wu Ching

Chinese Commissioner

Clarence J. Spiker

American Commissioner

Verner G. Lyman

American Commissioner

65. None printed.
66. Foreign Relations, 1928, vol. ii, p. 359.
67. See telegram No. 844, November 26, 1928, from the Minister in China, Foreign Relations, 1928, vol. ii, p. 366.
68. ibid., p. 367.
69. ibid., p. 368.
70. See extracts in telegram No. 83, February 2, from the Minister in China, p. 859.
71. See telegram No. 79, February 27, to the Minister in China, p. 862.
72. None printed.
73. See point 2 of telegram No. 57, February 9, to the Minister in China, p. 861.