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Mixed Claims Commission, United States and Germany *
Published online by Cambridge University Press: 04 May 2017
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- Type
- Judicial Decisions Involving Questions of International Law
- Information
- Copyright
- Copyright © American Society of International Law 1924
Footnotes
*
For the personnel of the Commission, see the last number of the Journal (Jan.1924)'p. 175.
References
1 Reference is made to Administrative Decision No. I for the definition of the terms used herein. See this Journal, January,1924, p. 175.
We are here dealing with a group of cases all growing out of a single catastrophe. As it is manifestly of paramount importance that the same rules of decision shall govern the disposition of each and all of them, whether disposed of by agreement between the two Commissioners or in the event of their disagreement by the Umpire, this opinion announcing such rules is, at the request of the two Commissioners, prepared by the Umpire, both Commissioners concurring in the conclusions. The principles and rules here laid down will, where applicable, govern the American and German Agents and their respective counsel in the preparation and presentation of all claims.
2 Section823. See also Huebner's History of Germanic Private Law, 1918, pages 578-579,and Schuster's Principles of German Civil Law, 1907, sections 284-286
3 Nohrdenv. Northeastern Railroad Co., 1900, 59 South Carolina Reports 87,105-108,37 Southeastern Reporter 228,238-240; Stuckey v. Atlantic Coast Line Railroad Co., 1901,60 South Carolina Reports 237, 252-253; Parker v. Crowell ¡ Spencer Lumber Co.,1905, 115 Louisiana Reports 463, 468, 39 Southern Reporter445, 446; Bourg v. Brownell-Drews Lumber Co., 1908, 120 Louisiana Reports 1009, 1022-1027,45 Southern Reporter 972, 977-979; Seaboard Air Line Railway v. Moseley, 1910, 60 Florida Reports 186, 189;Peters t. Southern Pacific Co., 1911, 160 California Reports 48, 69-71; Underwood v. Gulf Refining Co., 1911, 128 Louisiana Reports 968, 987-1003, 55 Southern Reporter 641, 646653;Johnson v. Industrial Lumber Co., 1912, 131 Louisiana Reports 897, 910, 60 Southern Reporter 608, 612
4 Mynning . The Detroit, Lansing ¡ Northern Railroad Co., 1886, 59 Michigan Reports 257, 261-262, 26 Northwestern Reporter 514, 516-517; Simmons v. McConnell, 1890, 86 Virginia Reports 494,496-497,10 Southeastern Reporter 838, 839; The Ohio and Mississippi Railway Co. v. Waagelin, 1894, 152 Illinois Reports138, 142, 38 Northeastern Reporter 760, 761; Turner v. Norfolk ¡ W. R. Co., 1895, 40 West Virginia Reports 675, 688-689, 693-695, 22 Southeastern Reporter 83, 87, 89; Strother v. South Carolina ¡ Georgia Railroad Co., 1896,47 South Carolina Reports 375,383-384,25 Southeastern Reporter, 272,274; Mason v. Southern Railway Co., 1900, 58 South Carolina Reports 70, 77, 36 Southeastern Reporter 440, 442; Parker v. Crowell ¡ Spencer Lumber Co., 1905, 115 Louisiana Reporta 463, 468, 39 Southern Reporter 445, 446; Norfolk ¡ Western Railway Co. v. Cheatwood's Administratrix, 1905,103 Virginia Reports 356, 364-365, 49 Southeastern Reporter 489, 491-492; Butte Electric Ry. Co. v. Jones, 1908, C. C. A., 164 Federal Reporter 308, 311,18 Lawyers' Reports Annotated (New Series) 1205, 1208; Brennen v. Chicago ¡ Carterville Coal Co., 1909, 147 Illinois Appellate Court Reports 263, 270-273; Chesapeake ¡ O. Ry. Co. v, Hawkins (West Virginia), 1909, C. C. A., 174 FederalReporter 597,601-602,98 Circuit Court of Appeals 443, 447-448.
5 The Rights of War and Peace, by Grotius, HugoWhewell translation, 1853(hereinafter cited as “ Grotius” ), Book II, Chapter XVII, Section XXII; Sedgwick on Damages, 9 th (1912) edition (hereinafter cited as “ Sedgwick” ), section 30Google Scholar
6 Nohrden v. Northeastern Railroad Co., 1900, 59 South Carolina Reports 87,105-108, 37 Southeastern Reporter 228, 238-240; Stuckey v. Atlantic Coast Line RailroadCo., 1901, 60 South Carolina Reports 237,253; Bourgv. Brownell-Drews Lumber Co., 1908,120 Louisiana Reports 1009, 1022-1026, 45 Southern Reporter 972, 977-978; Seaboard Air Line Railway v. Moseley, 1910,60 Florida Reports 186, 189-190; Underwood v. Gulf Refining Co., 1911, 128 Louisiana Reports 869, 986,990-1003; Johnson v. Industrial Lumber Co., 1912, 131 Louisiana Reports 897, 908-909
7 Sedgwick, sec. 46a
8 Fay v. Parker, 1873, 53 New Hampshire Reports 342; Sedgwick, sec. 354; Greenleaf on Evidence, 15th (1892) edition, Volume II, section 253, 254, 266, and 267
9 Lake Shore ¡ Michigan Southern Railway Co. v. Prentice, 1893, 147 United States Reports 101, 107
10 Wilkes v. Wood, 1763, 19 Howell's State Trials (1816) 1153, 1167, Lofft' Reports(1790), pages 1 and 19 of first case
11 Sedgwick, sec. 360
12 Cook v. Ellis, 1844, 6 Hills (New York) Reports 466, 467
13 Sedgwick, sec.- 571a
14 Grotius, Book II, Chapter XVII, section X ; Blackstone's Commentaries, Book II, Chapter 29, section VII, paragraph 2 (*page 438); Sedgwick, section 29Google Scholar
15 Schippel v. Norton, 1888,38 Kansas Reports 567, 572; Meighan v. Birmingham Terminal Co., 1910, 165 Alabama Reports 591, 599
16 Vattel's Law of Nations, Chitty edition with notes by Ingraham, 1852 (1857), (hereinafter cited as “ Vattel”) Book I, section 169, where it is said: “ Now, when men unite in society-as the society is thenceforward charged with the duty of providing forthe safety of its members, the individuals all resign to it their private right of punishing. To the whole body, therefore, it belongs to avenge private injuries, while it protects the citizens at large. And as it is a moral person, capable also of being injured, it has a right to provide for its own safety, by punishing those who trespass against it;-thatis to say, it has a right to punish public delinquents. Hence arises the right of the sword, which belongs to a nation, or to itsconductor. When the society use it against another nation, they make war; when they exert it in punishing an individual, they exercise vindictive justice.”
17 Wilkesv. Wood, note 10, supra
18 Boydan v. Haberstumpf, 1901,129 Michigan Reports 137, where it was held (page 140; italics ours) that the term “ exemplary damages,” as employed in Michigan, “ has generally been understood to mean an increased award of damages in view of the supposed aggravation of the injury to the feelings by the wanton or reckless act of the defendant,” and that “ It has never been the policy of the court to permit juries to award captiously any sum which may appear just to them, by way of punishment to the offender, but rather to award a sum in addition to the actual proven damages as what, in their judgment, constitutes a, just measure of compensation for injury to feelings, in view of the circumstances of each particular case.” Pegram v. Stortz, 1888, 31 West Virginia Reports, 229, 242-242; Gillingham v. Ohio River Railroad Co., 1891, 35 West Virginia Reports 588,599-599; Levy v. Fleischner, Mayer ¡ Co., 1895, 12 Washington Reports 15, 17-17
19 See the cases cited in note 6 above. In the case cited from 128 Louisiana Reports the court said, at page 992, “ the idea that damages allowed for mental suffering are exemplary, punitory, or vindictive in their character has been very generally abandoned, and they are now recognized by this court and other courts as actual and compensatory.”
20 International Arbitral Law and Procedure, by Ralston, Jackson H. 1910,Google Scholar section 369, where he says: “ While there is little doubt that in many cases the idea of punishment has influenced the amount of the award, yet we axe not prepared to state that any commission has accepted the view that it possessed the power to grant anything save compensation. . . .”
Borchard's, The Diplomatic Protection of Citizens Abroad, 1915 (1922)Google Scholar, section 174, makes substantially the same statement in these words: “ Arbitral commissions, while often apparently taking into consideration the seriousness of the offense and the idea of punishment in fixing the amount of an award, have generally regarded theirpowers as limited to the granting of compensatory, rather than exemplary, damages.”
Dr.Lieber, Umpire of the Commission under theconvention of July 4,1868, between the United States and Mexico, in awarding the sum of $4,000 on an 185,000 claim, said (page 4311, Volume IV, of Moor's Histary and Digest of the International Arbitrations to which the United States has been a Party, 1898,Google Scholar hereinafter cited as “ Moore's Arbitrations''):“Nor can these high damages be explained as exemplary damages. Our commission has no punitive mission, nor is there any offense to be punished.”
See also opinion of Umpire Bertinatti in the case of Ogden, Administrator of the estate of Isaac Harrington, in which an award of $1,000 was made on an original demand of $160,000 where the claim was made that an American citizen was treatedoppressively and with great indignity by Costa Rica. II Moore's Arbitrations, page 1566.
21 IV Moore's Arbitrations, 3411
Counsel also lays much stress on the language used by Umpire Duffield of the German-Venezuelan Mixed Claims Commission in the Metzger Case (pages 578-580, “ Venezuelan Arbitrations of 1903,” report by Ralston, Jackson H. 1904, hereinaftercited as “ Venezuelan Arbitrations 1903” ), where it is said (page 580;Google Scholar italics ours): “ Neither can anything be allowed in the way of punitive or exemplary damages againstVenezuela, because it appears, as above stated, that the general commanding the army promptly took action against the offender and punished him by imprisonment.” Clearly this is dictum. The case was apparently correctly decided and there was no reason for giving anycareful consideration to the right of the commission to go further than award compensatory damages.
22 Oppenheim, on International Law, 3rd (1920) edition (hereinafter cited as “ Oppenheim”), Vol. II, sec. 259a, page 353 Google Scholar, where it is said (italics ours): “ There is no doubt that,if a belligerent can be made to pay compensation for all damage done by him in violating the laws of war, this will be an indirect means of securing legitimate warfare.”
23 Articles 231 and 232 and Annex I to Section I of Part VIII of the Treaty of Versailles
24 See Note 11 to this Commission's Administrative Decision No. II handed dovm this day
25 Vattel, , Book II, Chapter XVIII, Sec. 329Google Scholar
26 Vattel, , Book II, Chapter XVII, Sec. 263.Google Scholar
27 Vattel, , Book II, Chapter XVII, Sec. 264; Digest of Justinian, Book II, Title XIV, paragraph 39, Monro translation, 1904 Google Scholar; Treaties—Their Making and Enforcement, by Crandall, Samuel B. 2nd (1916) edition (hereinafter cited as “ Crandall” ), sec. 171, page 401; Pothier on Obligations Google Scholar ( Evans, , 1806), Vol. I, page 58 (7th rule, Article VII, Chapter I, Part I);Google Scholar Woolsey, on International Law, 6th (1891)Google Scholar edition, sec. 113; opinion of Ralston, Umpire, Italian-Venezuelan Mixed Claims Commission, Sambiaggio Case, Venezuelan Arbitrations 1903, pages 666 and 688-689.Google Scholar
28 Opinion of Plumley, Umpire, in Arao Mines (Limited) Case,British-Venezuelan Mixed Claims Commission, pages 344 and 386-387; Venezuelan Arbitrations 1903,Google Scholar reference to Sambiaggio Case in note 27 above; Vilas v. Manila, 1911, 220 United States 345, 358-359; Crandall, sec. 170.
29 Vattel, , Book II, Chapter XVII, sections 301-303;Google Scholar Grotius, ,Book II, Chapter XVI, Seo. X and paragraph 3 of Sec. XII.Google Scholar