811.24596/8–2746: Telegram
The Acting Secretary of State to the Ambassador in the Philippines (McNutt)
328. Bases Agreement: 1. All modifications urtels 242, Aug 26; 248, Aug 27; 307, Sept 5; 323, Sept 7; 339, Sept 1084 approved subject following suggestions:
2. Dept considers suggested addition urtel 339, Sept 10, par. 2, Art. 14 changes meaning of the provision. Change acceptable this Govt but in order avoid possible misunderstanding Dept desires make certain Phil Govt aware that national emergency now legally in existence in US and probability will continue exist some time. Similar considerations suggested connection par. 6, Art. 14, urtel 323, Sept 7 in view existence present time technical state of war between US and Japan and other countries which may continue sometime. Apprise Phil Govt foregoing situation. In event they object you are authorized alter phraseology to make it not applicable to present state of war and national emergency.
3. With reference Art. 22, War Dept not pleased with provision for 2-year period but full authority commit War Dept for whatever can be obtained in this Art. is delegated to CG AFWESPAC. War prefers 5-year period. With regard annexes, CG AFWESPAC has full authority give War Dept’s opinion.
4. With reference Art 24 Dept suggests advisability substituting for original draft the following: “For the purpose of promoting and maintaining friendly relations by the prompt settlement of meritorious claims, the Government of the United States shall pay just and reasonable compensation, when accepted by claimants in full satisfaction and in final settlement, for claims, including claims of insured but excluding claims of subrogees, on account of damage to or loss or destruction of private property, both real and personal or personal injury or death of inhabitants of the Philippine Islands, when such [Page 913] damage, loss, destruction or injury is caused by the Armed Forces of the United States, or individual members thereof, including military or civilian employees thereof, or otherwise incident to non-combat activities of such forces; provided that no claim shall be considered unless presented within one year after the occurrence of the accident or incident out of which such claim arises.”
5. If this substitution not agreeable Phil Govt you are authorized accept compromise provision on basis phraseology present Art 24 except that this Govt cannot obligate itself pay any compensation awarded under provisions any Phil law. Basis this inability pay any such compensation is Act of Cong approved January 2, 1942, c. 645 SS 1, 55 Stat. 880, as amended April 22, 1943, c. 67, SS 1, 57 Stat. 66; U.S.C. Feb. 31, SS 224d. This Act provides for establishment Claims Commissions by Sec War and Sec Navy to consider, ascertain, adjust, determine and make payment of meritorious claims on account damage to or loss or destruction private property or personal injury or death inhabitants of a foreign country, when “caused by Army, Navy, or Marine Corps forces, or individual members thereof, including military personnel and civilian employees thereof, or otherwise incident to non-combat activities of such forces” where amount of claim does not exceed $5,000. Secretaries are given authority, if they deem any claim in excess $5,000 to be meritorious, to certify “such amount as may be found to be just and reasonable thereon” to Cong as a legal claim for payment out of appropriations that may be made by Cong therefor. SS 2 of Act provides that payments under SS 1 shall be made out of certain definite appropriations pertaining Navy and Army.
6. An agreement to pay “full compensation in accordance with the laws of the Rep of the Phils” would not be consistent with American law and practice. Proposed substitution would in no way deprive Filipinos of right to obtain compensation for damages, but on other hand might even facilitate payment such claims.
7. Navy states Art 14 quoted urtel 323, Sept 7 is not in accord with traditional policy NavDept in that naval authorities deprived of exclusive jurisdiction over members of its forces and it would like you propose word “concurrent” be substituted for “exclusive” Para 2. Navy feels Para 2 will deprive commanding officer authority punish members his command for variety offenses. Nevertheless, Navy willing accept best solution obtainable and does not wish jeopardize signing agreement.
8. Dept shares War Navy Depts’ earnest desire that agreement be signed in ample time for ratification by Phil Cong.