462.11L5232/174

The German Embassy to the Department of State 45

The Motion of the American Agent to reopen the Black Tom Case is, among others, based upon the contention that “the decision was [Page 324] irregularly rendered”. The American Agent argues that the Umpire should not have “participated in the joint deliberations of the two Commissioners, or join with them, as he did, in their judgment of first instance”. “The United States”, he says, “was entitled to an independent deliberation of the case by the National Commissioners”. (Motion p. 69).46 The American Agent concludes (p. 70): “The United States never agreed to the procedure followed, nor knew that it was to be followed—and the United States submits that the irregularity of the procedure should be held to vitiate the decision, and render it null and void”.

If this argument were sound it would follow that the vast majority of all the Commission’s decisions rendered in the course of its proceedings are null and void, that thousands of American claimants have been deprived of their right to a regular procedure and that all these cases have—as a matter of right—to be reopened, reconsidered and redecided. For—in more than 5000 cases the Umpire, Judge Parker,47 has joined in the deliberations of the two Commissioners and in their judgment in exactly the same way as the present Umpire joined with them in the sabotage-cases.

It is the German Government’s opinion that this method of procedure was absolutely regular and in accordance with the Agreement of August 10, 192248 and with the Rules of the Commission. The Agreement provides in Article II as follows: “The two Governments shall by agreement select an umpire to decide upon any cases concerning which the commissioners may disagree, or upon any points of difference that may arise in the course of their proceedings”. This provision does not limit the activities of the umpire to passing upon cases certified to him after the commissioners have reached a disagreement, but permits him also to cooperate with them “in the course of their proceedings”, i. e. while a case is still pending before them, by deciding any points of difference arising at this stage of the proceedings.

The Rules of the Commission, apparently prompted by this proviso, provide, among others, that the decisions of the Commission may be signed “by the Umpire and the two National Commissioners” (Art. VIII sec. (d)).

The practice adopted in the sabotage-cases has been followed by the Commission in thousands of instances. All dismissals, with the exception of two, have been signed by the Umpire and the two Commissioners [Page 325] after joint deliberation and the same method has been observed in a number of cases where awards were rendered. Neither Agent has ever objected to this practice which was, of course, known to both of them.

It is certain, that the American Agent will raise the identical objection in the impending motion to reopen the Kingsland Plant-case.

  1. Notation on original: “Left with me by the German Ambassador January 15, 1931. G[reen] H. H[ackworth].”
  2. Mixed Claims Commission, United States and Germany, The United States on behalf of Lehigh Valley Railroad and Underwriters of the Black Tom Disaster against Germany: Docket nos. 8103, et al., Petition for Rehearing, Washington, D. C. January 12, 1931 (New York, 1931), p. 69.
  3. Edwin B. Parker, Umpire, died October 30, 1929. He was succeeded by Roland W. Boyden, appointed January 9, 1930.
  4. Foreign Relations, 1922, vol. ii, p. 262.