493.11/1699: Telegram

The Secretary of State to the Minister in China (Johnson)

124. Your 333, April 15, 2 p.m.96 Department is of the opinion that, in addition to cases involving confiscation or looting by Chinese military forces, with reference to which the present practice of demanding indemnity of the provincial authorities should be continued without change, there should also be included (a) cases concerning which there exists a reasonable basis for belief that the local authorities have been culpably negligent in failing to provide adequate protection prior to the commission of a crime, (b) cases in which such authorities fail to exercise proper diligence or efficiency in apprehending, prosecuting and punishing guilty parties subsequent to the commission of a crime, (c) cases arising in remote or semi-independent areas over which the Central Government exercises but slight control, and (d) cases other than the above in regard to which there would appear to exist reasonable grounds for believing that the local provincial authorities are culpably negligent and that they might be induced to indemnify American claimants.

[Page 636]

It should be borne in mind, however, that in cases of this general nature the question of legal liability is, strictly speaking, one between nation and nation and not between nation and local authorities and that the presentation to provincial authorities of such cases and the receipt in reply of the usual denial of liability does not constitute “exhaustion of remedies” by claimants as that term is generally understood in international law. This should be made clear to claimants who should not ignore their own obligations in the matter.

Department desires that the Legation and consular officers in China be guided by the above in determining the cases in which a demand shall be made of the provincial authorities for indemnification and the cases in which such demand shall be withheld.

  1. Not printed; it requested instructions regarding presentation of claims for losses arising out of looting or banditry.