The Department did not fail to give careful and detailed consideration to
the proposal of the Mexican Government to pay thirteen and one-half
millions of dollars, over a period of thirty years, without interest on
deferred payments, in settlement of all General and Special Claims of
the United States against that Government. Although such an en bloc
agreement would have the desirable effect of removing this entire claims
matter from the field of international relations, it would involve
domestic considerations of great importance. It is not believed that any
amount which Mexico would, at the present time, be willing to agree to
pay would be sufficient to cover the just claims of the American
citizens whose rights are involved and the proposed method of payment,
i. e., without interest on deferred installments, reduces the present
valuation of the proposed payment by approximately fifty percent.
Moreover, such an en bloc settlement would merely amount to the transfer
from the international to the domestic field of the judicial proceedings
necessary to the proper appraisal of the individual claims with the
consequent assumption, by this Government, of many additional
difficulties in that connection. It is felt that this Government could
not properly undertake the responsibility for such domestic
adjudications in the absence of an en bloc agreement which would insure
the payment by Mexico of a sufficient amount fully to meet the ends of
justice. There is enclosed for your information in this connection an
unofficial office memorandum34 in which many of the considerations bearing upon the
matter of such an en bloc settlement
[Page 815]
are referred to. This memorandum is sent for your
own confidential information and is not to be taken as committing the
Department officially to its contents.
Since the above-mentioned proposal of the Mexican Government came too
late to make it possible to continue en bloc negotiations with any
reasonable prospect of a successful conclusion of a convention during
the present session of the Mexican Congress and since it is desirable to
avoid the lapse of any additional unnecessary time before finally
disposing of this claims matter, it would apparently be most
advantageous to both Governments promptly to conclude a protocol along
the lines of the attached draft. Under such a protocol, the disposition
of the claims can be progressed in a most harmonious, most inexpensive
and most expeditious manner.
In presenting this proposed protocol to the Mexican Foreign Office for
its consideration, it is desired that you emphasize the fact that it has
been drafted in its present form with several specific objectives in
view, among which are the following:
It is not perceived upon what bases the Mexican Government can offer
substantial objection to this method of procedure. It is therefore
confidently hoped and expected that you will be able to bring about the
prompt signature of this protocol. In this connection you may, if
occasion presents, emphasize to the appropriate authorities of the
Mexican Government that this proposal represents a sincere wish to meet
every reasonable expectation of that Government in a spirit of frank and
cordial cooperation…
Inasmuch as the conclusion of this protocol would involve the
appropriation by Congress of the money necessary to make possible
[Page 816]
the organization of an
American Agency before the preparation of pleadings could be initiated,
it is desired that agreement be brought about as soon as practicable. It
has been necessary in this connection to include in the protocol a
provision authorizing the two Governments to fix, by exchange of notes,
the beginning of the two-year pleading period. If this period were to
begin with the signature of the protocol, this Government would
doubtless have to forfeit, for lack of appropriation, the benefits of a
considerable portion of the pleading period.
The enclosed draft, as will be observed, relates to General Claims only.
It is thought that it might be advisable to suggest to the Mexican
Government that it draft a similar protocol with reference to Special
Claims. There appear to be no good reasons why such a Special Claims
protocol should differ fundamentally from that relating to General
Claims, and it may be that if the Mexican Government were itself to
sponsor one of the protocols that would create a greater feeling of
mutuality in the matter of the subsequent procedure and perhaps incline
the Mexican Government to be less disposed to offer objection, at a
later date, to the provisions or general effect of either protocol.
It is desired, however, that you do all possible to avoid impeding the
conclusion of the protocol covering General Claims because of any delay
in connection with the Special Claims protocol.
[Enclosure]
Draft Protocol Between the United States and
Mexico Regarding General Claims
Josephus Daniels, Ambassador Extraordinary and Plenipotentiary of the
United States of America to the Government of Mexico, and Secretary
for Foreign Affairs of the Republic of Mexico, having communicated
to each other their respective full powers, found in good and due
form, have agreed on behalf of their two Governments to conclude the
following protocol:
Whereas, It is the desire of the two
Governments to liquidate and settle as promptly as possible those
claims of each Government against the other which are comprehended
by, and which have been filed in pursuance of, the General Claims
Convention between the two Governments, concluded on September 8,
1923;
Whereas, It is not considered expedient to
proceed, at the present time, to the formal arbitration of the said
claims in the manner provided in that Convention;
[Page 817]
Whereas, It is considered to be conducive
to the best interests of the two Governments, to preserve the status quo of the General Claims Convention
above mentioned and the Convention extending the duration thereof,
which latter was concluded on June 18, 1932, but to endeavor to
effect a more expeditious and more economical disposition of the
claims, either by means of an en bloc settlement or a more
simplified method of adjudication, and
Whereas, In the present state of
development of the numerous claims the available information is not
such as to permit the two Governments to appraise their true value
with sufficient accuracy to permit of the successful negotiation of
an en bloc settlement thereof at the present time;
Therefore, It is agreed that:
First, the two Governments shall proceed, in
accordance with the provisions of paragraph “Fifth” below, promptly to complete the written pleadings
in such of the remaining unpleaded and incompletely pleaded cases as
appear to them, respectively, to warrant such a course of
action;
Second, as soon as the pleading of the cases
shall have been resumed, each Government shall promptly designate,
from among its own nationals, a Commissioner, who shall be an
outstanding jurist and whose function it shall be to appraise, on
their merits, as rapidly as possible, the claims of both Governments
which have already been fully pleaded and those in which the
pleadings shall be completed in accordance herewith.
Third, six months before the termination of
the period herein agreed upon for the completion of such pleadings,
or at an earlier time should they so agree, the said national
Commissioners shall meet, at a place to be agreed upon by them, for
the purpose of reconciling their appraisals. They shall, as soon as
possible, and not later than six months from the date of the
completion of the pleadings, submit to the two Governments a joint
report of the results of their conferences, indicating those cases
in which agreement has been reached by them with respect to the
merits and the amount of liability, if any, in the individual cases
and also those cases in which they shall have been unable to agree
with respect to the merits or the amount of liability, or both.
Fourth, the two Governments shall, upon the
basis of such joint report, and with the least possible delay,
conclude a convention for the final disposition of the claims, which
convention shall take one or the other of the two following forms,
namely, first, an agreement for an en bloc
settlement of the claims wherein there shall be stipulated the net
amount to be paid by either Government and the terms upon which
payment shall be made; or, second, an
agreement for the disposition
[Page 818]
of the claims upon their individual merits. In
this latter event, the two above-mentioned Commissioners shall be
required to record their agreements with respect to individual
claims and the bases upon which their conclusions shall have been
reached, in the respective cases, which report shall be accepted, by
the convention to be concluded by the two Governments, as final and
conclusive dispositions of those cases; and, with respect to those
cases in which the Commissioners shall not have been able to reach
agreements, the two Governments shall, by the said convention, agree
that the pleadings in such cases, together with the written views of
the two Commissioners concerning the merits of the respective
claims, be referred to an Umpire, whose written decisions thereon
shall also be accepted by the two Governments as final and binding.
The Umpire shall be chosen by joint action of the President of the
Permanent Administrative Council of the Permanent Court of
Arbitration at The Hague, the President of the Permanent Court of
International Justice and the President of the Federal Supreme Court
of the Confederation of Switzerland.
Fifth, the procedure to be followed in the
development of the pleadings, which procedure shall be scrupulously
observed by the Agents of the two Governments, shall be the
following:
(a) The time allowed for the completion of the
pleadings shall be two years counting from a date hereafter to be
agreed upon by the two Governments by an exchange of notes.
(b) The pleadings of each Government shall be
filed at the Embassy of the other Government.
(c) The pleadings to be filed shall be limited
in number to four, namely, Memorial, Answer, Brief and Reply Brief.
Only three copies of each need be presented to the other Agent, but
four additional copies shall be retained by the filing Agency for
possible use in future adjudication. Each copy of Memorial, Answer
and Brief shall be accompanied by a copy of all evidence filed with
the original thereof. The pleadings, which may be in either language
at the option of the filing Government, shall be signed by the
respective Agents or properly designated substitutes.
(d) With the Memorial the plaintiff Government
shall file all the evidence upon which it intends to rely. With the
Answer the defendant Government shall file all the evidence upon
which it intends to rely. No further evidence shall be filed by
either side except such evidence, with the Brief, as rebuts evidence
filed with the Answer.
(e) In view of the desire to reduce the number
of pleadings to a minimum in the interest of economy of time and
expense, it shall be the obligation of both Agents fully and clearly
to state in their Memorials the contention of the plaintiff
Government with respect to both the factual bases of the claim in
question and the legal principles upon which the claim is predicated
and, in the Answer, the contentions
[Page 819]
of the defendant Government with regard to the
existence and significance of the facts which it considers to be
established by the evidence and the principles of law upon which the
defense of the case rests. In cases in which Answers already filed
or hereafter filed do not sufficiently meet this provision so as to
afford the plaintiff Government an adequate basis for preparing its
legal Brief with full general knowledge of the factual and legal
defenses of the defendant Government, it shall have the right to
file a Counter Brief within thirty days following the date of filing
the Reply Brief.
(f) For the purposes of the above pleadings,
as well as the appraisals and decisions of the two Commissioners and
the decisions of the Umpire, above mentioned, the provisions of the
General Claims Convention of September 8, 1923, shall be considered
as fully effective and binding upon the two Governments.
(g) Whenever practicable, cases of a
particular class shall be grouped for memorializing and/or for
briefing.
(h) In order that the two Agents may organize
their work in the most advantageous manner possible and in order
that the two-year period allowed for pleadings may be utilized in a
manner which shall be most equitable to both sides, each Agent
shall, within thirty days from the beginning of the two-year
pleading period, submit to the other Agent a tentative statement
showing the total number of Memorials and Briefs such Agent intends
to file. Six months after the beginning of the two-year pleading
period, the two Agents shall respectively submit in the same manner
statements setting out definitely by name and docket number the
claims in which it is proposed to complete the pleadings indicating
those in which they intend to combine cases in the manner indicated
in paragraph (g) above. The number of
pleadings so indicated shall not, except by later agreement between
the two Governments, be exceeded by more than ten percent.
(i) In order to enable the Agencies to
distribute their work equally over the two-year pleading period,
each Agency shall be under the obligation to file its Memorials at
approximately equal intervals during the first seventeen months of
the two-year period, thus allowing the remaining seven months of the
period for the completion of the pleadings in the last case
memorialized.
The same obligation shall attach with respect to the filing of the
pleadings referred to in paragraph (k)
below.
(j) The time to be allowed for filing Answers
shall be seventy days from the day of filing Memorials. The time to
be allowed for filing Briefs shall be seventy days from the date of
filing the Answers. The time to be allowed for filing Reply Briefs
shall be seventy days from the date of filing the Briefs.
(k) In those cases in which some pleadings
were filed with the General Claims Commission before the date of
signature hereof, the
[Page 820]
Agency which has the right to file the next pleading shall be
allowed to determine when that pleading shall be filed, taking into
consideration the necessity of complying with the provisions of
paragraph (i) above.
(l) In counting the seventy-day periods
mentioned in paragraph (j) above, no
deductions shall be made for either Sundays or holidays. The date of
filing the above described pleadings shall be considered to be the
date upon which they shall be delivered at the Embassy of the other
Government. If the due date shall fall on Sunday or a legal holiday,
the pleading shall be filed upon the next succeeding business day.
The two Governments shall, for this purpose, instruct their
respective Embassies to receive and give receipts for such pleadings
any week-day between the hours of . . . . . and . . . . . except on
the following legal holidays:
| In Mexico |
In the United States |
|
January 1 |
|
February 22 |
|
May 30 |
|
July 4 |
|
The first Monday in September |
|
The last Thursday in November |
|
December 25 |
(m) The periods for filing Answers, Briefs,
and Counter Briefs, as indicated above, shall not be exceeded by
more than ten days with respect to any particular pleading. In cases
in which such period shall be exceeded by ten days or less, in any
particular case, such exceeded period shall, at the option of the
filing Government, be made up on one or more of the next five
pleadings of the same kind. Any tardy pleading which shall not be
filed in accordance with this schedule and the delay in which shall
not be made up by succeeding pleadings in the manner just indicated,
shall be excluded from consideration by the Commissioners or Umpire,
unless by agreement of the two Governments they shall be accepted
for such consideration.
(n) It shall not be necessary to attach
original evidence to the pleadings but all documents submitted as
evidence shall be certified as true and correct copies of the
original, or, in the event that any particular document filed is not
a true and correct copy, the nature of the difference between it and
the original copy shall be stated in the certificate. The complete
original of any document filed, either in whole or in part, shall be
retained in the Agency filing the document and shall be made
available for inspection by any authorized representative of the
Agent of the other side and, at the request and expense of the
latter, a photostat copy of such document shall be provided for use
in connection with the next pleadings in the particular case, but
not otherwise.
