493.11/2062
The Department of State to the British Embassy
Aide-Mémoire
With reference to the British Embassy’s aide-mémoire of September 3, 1937,31 regarding the preparation and presentation of claims growing out of the present Sino-Japanese hostilities, the Secretary of State expresses appreciation of the courtesy of the British Government in making known its views on the subject.
While the Government of the United States has not undertaken, in the instructions sent to its officials in China, to classify into categories the claims that may result from the present Sino-Japanese conflict as is done in the Embassy’s aide-mémoire, its views, from the standpoint of the legal liability of the Chinese and Japanese Governments, are in general accord with those stated by the British Government.
It is considered that legal liability clearly exists with respect to claims falling within the classes indicated under paragraph 2 (a) and (b) and paragraph 6 (b) of the Embassy’s aide-mémoire.
As to claims of the character indicated in paragraphs 2 (c) and 6 (a), it is felt that, while such claims would not be sustainable against belligerent governments, inasmuch as the Japanese and Chinese Governments have not seen fit to assume a role as belligerents, they as a matter of law are not entitled to the benefits of such a status. Although the Government of the United States has not had occasion to announce its position with respect to this category of claims, it is [Page 329] inclined to agree with the British Government that as a practical matter there will be little hope of recovery on such claims unless there should be a general lump sum settlement of all claims making it possible to include them in the settlement and distribution.
On August 26 the American Embassies at Nanking and Tokyo, respectively, were instructed to inform the Chinese and Japanese Governments that the Government of the United States reserved “all rights on its behalf and on behalf of American nationals in respect of damages to or loss of American property or on account of death or injuries sustained by American nationals as a result of the activities of …32 armed forces in the course of or incident to military operations now in progress in China”. On the same date the American Embassy at Nanking was instructed to notify American nationals and firms in China regarding the steps to be taken by them in obtaining and making of record evidence of losses and damages. They were to be informed that they should file with the American Consulate sworn inventories of property, and the best possible evidence as to the exact location, quantity, and value of destroyed, looted, abandoned, or occupied property for which they might desire indemnity; that they should obtain sworn statements of eye witnesses of the destruction, looting, or forced abandonment, or occupation of property, and that special effort should be made to identify the persons or forces occupying or responsible for the losses or damages; that where any property is taken over under requisition by either Japanese or Chinese authorities, requisition receipts should be obtained, if possible; and that, in personal injury or death cases, evidence should be obtained, if available, as to the identity of the persons or forces that caused the injury or death.
The Government of the United States is thoroughly in accord with the view of the British Government that protests should be made with respect to incidents falling under categories (a) and (b) of paragraph 2 and under paragraph 7 of the aide-mémoire.