411.12/2327
The Secretary of State to
the Ambassador in Mexico (
Daniels
)
No. 1109
Washington
, May 29, 1936.
Sir: As you are aware, the work of the two
Agencies on the General Claims Arbitration, so far as concerns the
filing of Memorials, is drawing to a close. The last Memorial in support
of American claims will be filed on or about June 30, 1936, which date
marks the end of the period allowed by paragraph “Sixth (i)” of the Protocol of April 24, 1934,39 for the filing of such
Memorials, and the American Agent has received from the Mexican Agent
indications, although not a specific agreement, that the last Mexican
Memorial will be filed on the same date.
It is believed that it would be to the mutual advantage of the two
Governments if they were to reach an agreement at the present time with
respect to the procedure to be observed by the two Agents in the matter
of disposing, for all time, of the claims intended, by the Convention of
September 8, 1923,40 to be
barred, after the conclusion of the present arbitral proceedings. With
that objective in view, there is, therefore, attached hereto for your
convenience a draft of a proposed note to the Foreign Office suggesting
such an agreement. That draft note is self-explanatory. It is desired
that you address a note to the Foreign Office,40a in the general terms indicated, using the
suggested text as far as possible, and that you endeavor to obtain its
concurrence in the course of action proposed therein, at the earliest
practicable time, since the proposed action will doubtless involve a
considerable amount of work on the part of each Agency, which work must
be completed before June 30.
Your earliest possible advices, by telegraph, that the proposal has been
formally agreed to will be appreciated.
Very truly yours,
For the Secretary of State:
Wilbur
J. Carr
[Enclosure]
Draft of Note To Be Presented to the Mexican
Ministry for Foreign Affairs
In the pending General Claims Arbitration, the present American
Agency has proceeded on the theory that it would be a futile waste
of [Page 732] time, of effort and of
the funds of the two Governments to submit for the consideration of
the Commissioners, or the Umpire, all claims filed, regardless of
their merits, and has consequently segregated from the mass of the
claims and presented for adjudication only those in which the
evidence filed, up to present time, appears to establish prima facie
bases of liability, having held in abeyance those in which the
evidence already filed by the respective claimants does not appear
to measure up to that standard.
It is understood that the present Mexican Agency has proceeded along
the same general lines.
It would appear to be in the interest of both Governments to take the
necessary steps at the present time to insure that the present
arbitral proceedings and those of the Umpire shall serve as a final
disposition, for all time, of all claims of the nationals of either
Government for loss or damage sustained during the long period of
time covered by the barring clauses of the General Claims
Convention, namely, from July 4, 1868, to the date of the exchange
of ratifications of that Convention, March 1, 1924. Otherwise
questions may continue to arise, on the basis of newly discovered or
newly filed evidence, with respect to claims not memorialized at
this time. The terms of the Convention of September 8, 1923 are such
that the accomplishment of that desirable purpose would appear to
necessitate an understanding between the two Governments at this
time concerning a uniform course of action on the part of the two
Agents with respect to the unmemorialized claims. Article VIII of
that Convention seems to contemplate the barring of the claims here
in question only in the event of their having been “heard and
decided” by the Commission and, yet, it is for the precise purpose
of avoiding the unnecessary expenditure of the time and funds
necessarily incident to such hearings and decisions on the basis of
unsatisfactory evidence that the American Agent (and also the
Mexican Agent, it is understood) has withheld those claims from the
consideration of the Commission, on the merits. In this situation,
it would appear that the only practicable manner in which the
desired purpose might be served, from the standpoint of a proper
interpretation of the Convention, would be the presentation to the
Commission by the Agent of each Government, on or before June 30,
1936, of an omnibus memorial in which would be listed, by name and
docket number, all those cases not specifically memorialized for
consideration on the merits, with the request that the Commissioners
“hear and decide” the respective ctses on the basis of the
memoranda-notices alone. That action, coupled with an agreement of
the two Governments at this time to interpret the Convention, in
future, in such a manner as to consider that the claims so presented
have been properly brought within the purview of the barring clauses
of the Convention of September [Page 733] 8, 1923, would seem to serve the purpose of
definitely placing the two Governments in the position of knowing
that all questions concerning claims for losses or damages
originating during that long period of time comprehended by the
barring clauses of the General Claims Convention had been definitely
disposed of upon the conclusion of the arbitral work in those cases
presented to the Commissioners on or before June 30, 1936.
It is, therefore, hereby proposed to the Mexican Government that the
two Agents be instructed by their respective Governments to file, on
or before the date above indicated, such an omnibus memorial as
above described, including therein all claims not memorialized for
adjudication on the merits, each such omnibus memorial to contain,
if deemed necessary, a provision reserving the right of the
respective Government to withdraw the memorial in question in the
unforeseeable event that the corresponding Memorial of the other
Agent should not, for some reason, be filed on or before the date
indicated, or should not include all the corresponding claims of his
Government.
The Government of the United States would desire to have it
understood in this connection, however, that those claims of
American nationals which are based on obligations of States or
Municipalities of the Mexican Government and which have not been
prosecuted because of the recognition of the general principle of
non-responsibility of national Governments for the contractual
obligations of its subdivisions shall be considered as barred only
insofar as concerns the question of liability of the National
Government for the consequences of its own acts during the period in
question and not as claims against the respective States or
Municipalities for possible delinquencies on their part during the
Convention period. The Government of the United States is prepared
to concede that the same understanding shall apply to the same class
of Mexican claims, if any.
Moreover, inasmuch as it was agreed by the two Governments, by
communications exchanged on July 8–11, 1925,41 that those claims of
American nationals which were based upon bonds falling within the
scope of the agreement of June 16, 192242
(otherwise known as the Bankers’ Agreement concerning the refunding
of Mexican obligations), did not come within the purview of the
General Claims Convention of September 8, 1923, regardless of
whether or not the bonds on which those claims were based had been
deposited in accordance with the terms of the Bankers’ Agreement, it
will be understood, of course, that the proposed omnibus memorial of
the United States will not include those claims, and that such
claims are unaffected by this arrangement.
