837.30/74
The Secretary of State to the Chargé in Cuba (Briggs)
Sir: The Department again refers to the draft supplementary agreement for military and naval cooperation between the United States and Cuba submitted with the Embassy’s despatch no. 2314 of February 26, 1943.27 With the exception of Article IV which relates to military jurisdiction and was covered by its instruction no. 1574 [1754] of June 5, 1943,28 the Department approves the agreement. It also has the approval of the War and Navy Departments.
It is suggested that there be substituted for the article on military jurisdiction an article relating to claims reading as follows:
Article IV
Claims
All claims for damages to persons or property of Cuban nationals resulting from acts of members of the armed forces of the United States in Cuba shall be submitted to a Claims Commission established in accordance with the Act of Congress of the United States approved January 2, 1942 (Public Law 393—Seventy-seventh Congress), as amended by the Act approved April 22, 1943 (Public Law 39—Seventy-eighth Congress29). This article shall supersede Article XII of the Agreement for Military and Naval Cooperation, signed at Habana June 19, 1942.
Article XII of the 1942 agreement is objectionable because it is confined to claims of a particular category instead of including all claims arising out of acts of members of the armed forces and because the Department cannot by executive agreement clothe a joint commission with jurisdiction to settle definitively claims against the United States of the kind referred to. Provision for the settlement [Page 144] of claims for injury to persons or property of inhabitants of foreign countries by members of the armed forces of the United States has been made in the Act of Congress approved January 2, 1942, as amended by the Act approved April 22, 1943. These Acts provide for the establishment of military claims commissions to adjudicate and settle such claims. Some time ago the War Department suggested that we endeavor to have the Cuban Government consent to the abrogation of Article XII because it did not feel that it could legally appoint persons to membership on the joint commission or make payment of its awards. Under the amended Act, claims up to $5,000 in amount can be settled without reference to Congress and the Secretaries of War and Navy are authorized to certify to Congress for payment claims in excess of that amount.
It would seem that these Acts of Congress provide a more expeditious and satisfactory method of settling claims than the joint commission provided for in the 1942 agreement. It would, of course, be open to Cuba to decline to accept offers of settlement by the military claims commissions or by the Secretaries of War or Navy and to present the claims through diplomatic channels. In view of the experience of the claims commissions in other countries, however, it is believed that there will be no occasion for presenting diplomatic claims. Individual claimants are, of course, free to accept or reject the commission’s awards and any legal remedies open to them in the courts are not interfered with.
Since the proposed Article IV is broader in scope than the article in the 1942 agreement and awards made under it in cases under:$5,000 can be promptly paid from available funds without reference to Congress, it is believed that the Cuban Government will have no difficulty in appreciating the superior merits of such an arrangement.
It is suggested that the form of the supplementary agreement be changed. The Department sees no necessity for an exchange of full powers and feels that the arrangement might appropriately take the form of a note addressed by the Embassy to the Minister of State setting forth the several articles and concluding with a statement that if these articles are acceptable to the Cuban Government, a note from that Government so stating would be regarded as placing the agreement in effect. An alternative method would be to incorporate the agreement in a single document to be signed by the Ambassador and the Minister of State on behalf of their respective Governments. Whichever procedure is preferred by the Cuban Government might be followed.
The following changes in the text of the proposed agreement are suggested. Replace “Agreement of September 7, 1942” in Article I [Page 145] by “Agreement for Military and Naval Cooperation between the Government of the United States of America and the Government of the Republic of Cuba signed at Habana, September 7, 1942”. Replace “Government of Cuba” or “Cuban Government” wherever used by “Government of the Republic of Cuba”. Replace “United States Government” wherever used by “Government of the United States of America”. Replace “United States” and “Cuba” wherever used by “United States of America” and “The Republic of Cuba”. In Article V after “cooperation” insert “between the United States of America and the Republic of Cuba”.
Very truly yours,