462.11L 5232/175
Memorandum by the Solicitor for the Department of State (Hackworth)
Doctor Kiep49 called at the Department this afternoon in connection with the petition which has been filed by the American Agent with the Mixed Claims Commission for a rehearing in the so-called sabotage cases. He stated that the Ambassador had an appointment to see the Secretary tomorrow and he wanted to indicate in advance some of the matters which the Embassy has in mind.
He stated that Doctor von Lewinski, the German Agent, is compelled to leave the United States not later than January 21; that he is the only representative of the German Government familiar with these cases and in a position to present the German Government’s point of view to the arbitrators. He stated that his Government, therefore, is very desirous of disposing of the petition, as far as possible, before the departure of Doctor von Lewinski. He understands that Colonel Boyden is coming to Washington the middle of the coming week, probably January 21, and thinks that it would be very helpful if arrangements could be made for him to come a little earlier than contemplated, namely, the 19th or 20th of January, in order that such hearing as the Commission may desire to hold may be held before Doctor von Lewinski sails for Europe.
Doctor Kiep also stated that there had been suggestions in certain quarters (not emanating from the German Government) to the effect that the decision on the point of procedure raised by the petition filed by the American Agent might be facilitated by a declaration of the two Governments on their interpretation of the claims agreement. The part of the agreement in question is contained in Article 2 and provides that:
“The Government of the United States and the Government of Germany shall each appoint one Commissioner. 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.
The American Agent in his petition for a new hearing contends, among other things, that it was improper for the Umpire to participate in the joint discussions of the case by the two Commissioners in the absence of a disagreement between them; also that it was improper for him to join with them in the decision which was rendered.
Doctor Kiep stated that it was his personal opinion that an interpretation of the agreement by the two Governments could not well be given without a request from the Commission; that if a declaration by the two Governments should be requested he believed that the German Government would have no objection to cooperating.
I told Doctor Kiep that I would inform the Secretary of his call and of the information which he had given me. I attach a memorandum on the same subject which the German Ambassador left with me yesterday.50
It is my feeling that if we could accommodate the German Government by inducing Colonel Boyden to come to Washington the early part of the coming week, it might facilitate an early settlement of the matter which, of course, would be to the mutual interest of the two Governments…
I do not, however, feel that the two Governments should undertake an interpretation of the Convention since the Commission has authority to do this and any action by the two Governments, whether rightly or wrongly, would open the way to greater criticism by dissatisfied parties than would action by the Commission. I think the Commission should dispose of this case in its own way but that we might use our good offices in bringing about an early hearing.