462.11L5232/796½

The American Agent, Mixed Claims Commission (Bonynge), to the Secretary of State

Sir: There is transmitted herewith a letter dated December 1, 1936, at Berlin, Germany, in the German language, received at the Office of the Mixed Claims Commission on December 11, 1936, from Hauptmann von Pfeffer, the Representative of Germany, in the negotiations for a settlement of the sabotage claims before the Mixed Claims Commission United States and Germany, together with an English translation thereof, and also an envelope containing, as I am advised, a letter from Hauptmann von Pfeffer to the Secretary of State,95 which [Page 283]I am requested to deliver to you. When Hauptmann von Pfeffer’s letter in German to me has served its purpose, kindly return same to me for the files of the American Agency.

It appears from Hauptmann von Pfeffer’s letter to me that the German Government now seeks to attach subsequent conditions to the Munich Agreement which were not discussed and upon which the agreement was in no way based. Such subsequent conditions form no part of the agreement.

In the letter of Hauptmann von Pfeffer to me he states that the settlement of the sabotage cases was “to be the first step on the part of Germany for an energetic effort to improve the mutual relations between our countries (Munich protocol of July 6, 1936, page 1, Article II.)”. If by this statement Hauptmann von Pfeffer seeks to create the impression that there was an understanding or agreement to that effect between the Representative of Germany and the Agent of the United States and his counsel, it is definitely negatived by the English translation approved by him, of his letter to me dated July 6, 1936, to which he refers. I call your attention to the fact (referring to the settlement of the sabotage cases) that Hauptmann von Pfeffer points out that the settlement of those cases was intended to be the first step on “the part of Germany” in an effort to improve the relations between the two countries. With that I was not concerned. I certainly could not object to Germany making any efforts it desired to accomplish the result mentioned. That was a matter that rested entirely with Germany. What other efforts, if any, Germany intended to take was at no time mentioned or discussed between us.

It was distinctly understood by the Representative of Germany as disclosed by his letter to me, dated December 1, 1936, that the settlement of the sabotage claims must be unconditional and not based upon the consideration of any other matter pending between the two governments.

As you are aware, it was the government of Germany that requested representatives of the United States to proceed to Germany for a discussion of the settlement of the sabotage claims, and it was only after you became satisfied that the invitation was an official invitation from Germany and that Hauptmann von Pfeffer was authorized to act for his government in the matter, that you authorized me and my counsel to proceed to Germany for the purpose indicated. I also understand that before I left it was made perfectly clear to the German Government through diplomatic channels, that any settlement of the sabotage claims must be unconditional and not based upon the consideration or discussion of any other matter.

At the first conference I had with the Representative of Germany, I advised him that my position and that of my counsel was as agent [Page 284]and counsel of the United States before the Mixed Claims Commission United States and Germany, and that we were not authorized or privileged to discuss any other matter with him or any representative of Germany.

At the meeting of July 10, 1936, when the settlement was formally ratified and confirmed and a record thereof duly made, I read to the Representative of Germany the letter of instructions to me and my counsel contained in the letter of the Secretary of State to me dated June 19, 1936. The Minutes of that meeting record the fact that I read that letter at that time to the Representative of Germany. I did so in order that there might not be any possibility for a claim to be made at any time by anyone that the settlement of the sabotage claims was not an unconditional settlement of those claims and not related to or dependent upon the discussion or settlement of any other matter pending between the two governments.

The agreement entered into was a solemn agreement on the part of the German Government by its duly authorized Representative, and I respectfully submit that Germany cannot evade it by endeavoring to attach subsequent conditions to it.

In accordance with the practice heretofore prevailing the Representative of Germany was asked to have the German Agent before the Mixed Claims Commission authorized and directed to execute the necessary documents in conformity to the prevailing practice regarding the entry of compromise settlements. The agreement, however, was not conditioned upon the issuance of such instructions.

In my opinion, after a careful and painstaking consideration and study of the terms of the agreement, particularly paragraphs 2, 3 and 4 of the protocol of July 6, 1936, the Commission is authorized to enter awards in accordance with its terms and provisions. The Agreement specifically provides for the entry of awards by the Commission.

A legal question is thus presented involving the power and jurisdiction of the Commission to enter awards in these cases in accordance with the terms of the agreement and without further action on the part of Germany. This question, in my opinion, should, pursuant to the policy heretofore adopted, be presented to the Commission for its consideration and determination.

It is accordingly my purpose to submit, prior to the meeting of the Commission to be held on January 6, 1937, a motion based upon my report of December 8, 1936,96 presenting this question to the Commission for its determination which procedure I trust will meet with your approval and result in a speedy disposition of these cases.

Yours very truly,

Robert W. Bonynge
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