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Mixed Claims Commission—United States and Germany*: Opinions Dealing with Claims for Loss of Earnings or Profits and for Loss or Damage in Respect of Intangible Property and Administrative Decision No. VII
Published online by Cambridge University Press: 04 May 2017
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- Type
- Judicial Decisions Involving Questions of International Law
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- Copyright © American Society of International Law 1926
Footnotes
*
Established in pursuance of the agreement between the United States and Germany of August 10, 1922. Edwin B. Parker, Umpire; Chandler P. Anderson, Ameriean Commissioner; Wilhelm Kiesselbach, German Commissioner; Robert W. Bonynge, American Agent; Karl von Lewinski, German Agent. Headnotes and references in brackets inserted by the Editor of the Journal . Lack of space prevents the publication of the disagreeing opinions of the two National Commissioners.
References
1 Established in pursuance of the agreement between the United States and Germany of August 10, 1922. Edwin B. Parker, Umpire; Chandler P. Anderson, Ameriean Commissioner; Wilhelm Kiesselbach, German Commissioner; Robert W. Bonynge, American Agent; Karl von Lewinski, German Agent
Headnotes and references in brackets inserted by the Editor of the JOURNAL. Lack of space prevents the publication of the disagreeing opinions of the two National Commissioners.
2 Paragraph (i) of Article 297 provides that “Germany undertakes to compensate her nationals in respect of the sale or retention of their property, rights or interests in Allied or Associated States.”
3 See the formal declaration presented in writing to this Commission by the Government of Germany through the German Agent embodied in the minutes of the meeting of this Commission of May 15, 1923, wherein it was declared that “Germany is primarily liable with respect to all claims and debts coming within the jurisdiction of the Mixed Claims Commission under the Agreement of August 10, 1922.
4 ”oAccording to the pre-armistice negotiations.
5 According to the language of Articles 231 and 232 of the treaty.
6 This is the extent of Germany's obligation arising under the provisions of paragraph 4 of the Annex to Section IV of Part X with respect to making compensation for property of American nationals damaged or destroyed during the period of American neutrality.
7 Bernard M. Baruch's The Making of the Reparation and Economic Sections of the Treaty (1920), page 19.
8 ’ Thomas W. Lamont on “Reparations” in What Really Happened at Paris (1921), at page 271.
9 Administrative Decision No. Ill, Decisions and Opinions, at page 67. [This JOURNAL, Vol. 18, at p. 608.]
10 Reparation Commission (V), Report on the Work of the Reparation Commission from 1920 to 1922, page 47.
11 When the Treaty of Berlin was before the Senate of the United States, Senator Walsh of Montana moved to strike from it the provisions obligating Germany to reimburse the United States for pensions and separation allowances paid by the latter. He said, inter alia (page 6367, Volume 61, Congressional Record), “at the conference of Versailles an insistent demand was made by certain of the Allies to exact compensation of Germany for all damages occasioned by the war; and … after the debate progressed before the Versailles conference, the contention was finally abandoned by every one of them, and it was agreed that the compensation to be exacted of Germany should be limited to the damage which was done to the civilian population. ... I challenged anyone to attempt to defend pensions and separation allowances as damages done to the civilian population, and no one has attempted so to defend them.”At this point Senator Shortridge, of California, asked Senator Walsh in substance if he feared or thought that the United States, “by whomsoever guided or directed, will ever make” a demand on Germany for the payment of pensions and separation allowances, in effect expressing the opinion that such a contingency was so remote as to make of no consequence the objection of Senator Walsh to the treaty as it stood. This opinion expressed by Senator Shortridge, which was not challenged and which, as appears from the debates, expressed the view held by the Senate, was fully justified when the President of the United States authorized the statement that he had no intention of pressing against Germany or presenting to this Commission any claims falling within paragraphs 5, 6, and 7 of Annex I to Section I of Part VIII of the Treaty of Versailles (see exchange of notes between Chancellor Wirth and Ambassador Houghton on August 10, 1922, printed in connection with the agreement between the United States and Germany providing for the creation of this Commission, American Treaty Series, No. 665.)
12 See also Administrative Decision No. II, this Commission's Decisions and Opinions, at page 12. [This JOURNAL, Vol. 18, at p. 183.]
13 Brief submitted by counsel for the Huasteca Petroleum Company, claimant in the Mirlo case, List No. 10988.
14 Resolution of the Senate of the United States of October 18, 1921, ratifying the Treaty of Berlin, with the express understanding “that the rights and advantages which the United States is entitled to have and enjoy under this treaty embrace the rights and advantages of nationals of the United States specified in the Joint Resolution or in the provisions of the Treaty of Versailles to which this treaty refers.”
15 Paragraph 9 of Annex I to Section I of Part VIII of the Treaty of Versailles.
16 “ Administrative Decision No. II, Decisions and Opinions, page 12. [This JOURNAL, Vol. 18, p. 183.]
17 Paragraph 9 of Annex I to Section I of Part VIII (Reparation) of the Treaty of Versailles.
18 This rule is generally accepted by international and municipal tribunals. That it is firmly established in American jurisprudence there can be no doubt. See the recent case of Standard Oil Company of New Jersey v. Southern Pacific Company et al., decided by the Supreme Court of the United States April 20,1925. In that case Mr. Justice Butler, delivering the unanimous opinion of the court, said: “In case of total loss of a vessel, the measure of damages is its market value, if it has a market value, at the time of destruction… . Where there is no market value such as is established by contemporaneous sales of like property in the way of ordinary business, as in the case of merchandise bought and sold in the market, other evidence is resorted to. The value of the vessel lost properly may be taken to be the sum which, considering all the circumstances, probably could have been obtained for her on the date of the collision; that is, the sum that in all probability would result from fair negotiations between an owner willing to sell and a purchaser desiring to buy. ... It is to be borne in mind that value is the thing to be found. ... ‘ It is the market price which the court looks to, and nothing else, as the value of the property.’ … Value is the measure of compensation in case of total loss.” In this case it will be noted that the court held that the Director General of Railroads of the United States, who was in the lawful possession of and operating the lost ship, and who would have continued to operate her for a period of some 18 months had she not been lost, was a special owner of the ship and that the general owner, Southern Pacific Company, was the owner of the reversion and “Together they had full title.” The market value of the lost ship for which the Standard Oil Company was held liable embraced not only the compensation recoverable by the owner but also the compensation recoverable by the special owner. No issue of apportionment was made as between them, and the opinion does not deal with their relative rights.
19 Excerpt from the minutes of the meeting of the Commission, March 11, 1924: “The Umpire announced that the Commission had given very careful consideration to the brief of the German Agent filed herein February 26, 1924, dealing with the principles to be applied in assessing the value of American hulls lost during the period of belligerency, and, after careful reconsideration of this entire subject, is of the opinion that the principles announced in its Administrative Decision No. Ill handed down December 11, 1923, with respect to the measure of damages in all claims for property taken, should be here applied. It was, therefore,
20 Leary v. United States (1872), 14 Wallace (81 U. S.), 607, at 610. United States v. Shea (1894), 152 U. S. 178
21 De Mattos v. Gibson (1859), 4 De G. & J. 276, 8. W. R, 514, 45 English Reports Full Reprint, 108; Messageries Imperiales v. Baines (1863), 7 L. T. 763, 11 W. R. 322; Great Lakes and St. Lawrence Transportation Co., et al. v. Scranton Coal Co. (1917, C. C. A.), 239 Federal Reporter, 603; The Aquitania (1920, D. C.), 270 Federal Reporter, 239; The Bjomefjtrrd, Flint, Goering & Co., Ltd., v. Robins Dry Dock & Repair Co., 1924 American Maritime Cfises, 740.
22 Administrative Decision No. V, page 193. [This JOURNAL, Vol. 19, at p. 629.]
23 Administrative Decision No. V, page 193. [This JOURNAL, Vol. 19, at p. 629.]
24 In the case of The Bjornefjord, Flint, Goering & Co., Ltd., v. Robins Dry Dock & Repair Company, in the United States District Court, Southern District of New York, 1924 American Maritime Cases, 740, the court held, “The charterer had a right to the use of the vessel, which had a value and could have been disposed of in the open market.
25 Paragraph 9 of Annex I to Section I of Part VIII of the Treaty of Versailles.
26 Judge Hough in The Santona (D. C., 1907), 152 Federal Reporter, 516, at page 518. Cited with approval by Mayer, D. J., in The Aquitania (1920), 270 Federal Reporter, 239, at page 244, and by Goddard, D. J., in The Bjomefjord, Flint, Goering & Company, Ltd., v. Robins Dry Dock & Repair Co., 1924 American Maritime Cases, 740.
27 See Administrative Decision No. II, pages 8 to 10, inclusive. [This JOURNAL, Vol. 18, pp. 180-182.]
28 Administrative Decision No. V deals with “Germany's obligations and the jurisdiction of this Commission as determined by the nationality of claims.” [This JOURNAL, Vol. 19, p. 612.
29 The Owners of the S. S. Seaham Harbour, Claimants, v. German Government, (1922) I Decisions of Mixed Arbitral Tribunals, 550 (1924) IV, ibid.