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The Orinoco Steampship Company Case Before the Hague Tribunal

Published online by Cambridge University Press:  04 May 2017

William Cullen Dennis
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Extract

On the 9th of April, 1911, the Hague court will celebrate its first decennial. The first decade of the court was opened by the submission on the part of the United States and Mexico of the Pious Fund case to the tribunal for its decision, and of the eight cases so far submitted to the court and brought to trial during the first decade, the United States has been a party in four, and in a fifth, the Japanese House Tax case, the United States agreed to abide by the result. The last case to be tried was the Orinoco Steamship Company case submitted by the United States and Venezuela.

Both the Pious Fund and the Orinoco Steamship Company case raised important questions vitally affecting the future of international arbitration. Both cases were peculiar in that they dealt with a question which had already been once before decided by an arbitral tribunal. In both cases the effect of the previous arbitral decision was submitted as a preliminary question to the Hague court. In the Pious Fund case the preliminary question submitted was as to whether the claim, as a consequence of the former decision of Sir Edward Thornton, umpire under the convention between the United States and Mexico of 1868, was within the principle of res judicata. The court sustained the contention of the United States, by holding that the rule of res judicata applies to international arbitral sentences “ rendered within the limits of the jurisdiction fixed by the compromise,” and accordingly rendered judgment in favor of the United States, without considering the merits of the claim.

Type
Research Article
Information
American Journal of International Law , Volume 5 , Issue 1 , January 1911 , pp. 35 - 64
Copyright
Copyright © American Society of International Law 1911

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References

1 On the ninth of April, 1901, the Minister of Foreign Affairs of the Netherlands, as President of the Administrative Council of the Permanent Court, sent out a formal note enclosing a list of the judges and embodying the decision of the Council that in view of the impossibility of assembling the members of the Tribunal, the installation of the court should be deemed to have taken place from the mere fact of its constitution.

2 These eases were as follows: United States vs. Mexico — the Pious Fund Case, decided Oct. 14, 1902; Germany, Great Britain and Italy vs. Venezuela, the United States of America, Belgium, France, Mexico, The Netherlands, Sweden and Norway — the Preferential Treatment Case, decided February 22, 1904; Great Britain, France and Germany vs. Japan — The Japanese House Tax Case, decided May 22, 1905; Great Britain vs. France — the Muscat Dhows Case, decided August 8, 1905; France vs. Germany — the Casablanca Case, decided May 2, 1909; Norway vs. Sweden — the Maritime Boundary Case, decided October 22, 1909 ; The United States of America vs. Great Britain — The Atlantic Coast Fisheries Case, decided September 6, 1910; United States of America vs. Venezuela— The Orinoco Steamship Company Case, decided October 25, 1910. One or two of the other cases now pending will probably be brought to trial before the ten year period ends.

3 For text of the decision in the Pious Fund case, see this Journal, 2:898; see also Foreign Relations, United States, 1902, Appendix II., pp. 15-18.

4 U. S. Case, Appendix, II: 1062.

5 U. S. Case, Appendix, II: 1063-4.

6 For the full text of this protocol, see Supplement to this Journal, 3:224. See also Treaties, Conventions, etc., 1776-1909, Vol. II., p. 1881.

7 See editorial in this Journal, 3 :985.

8 Appendix to U. S. Case, I:5.

9 Dr. Rodriguez was first appointed secretary at the opening session, Sept. 28th, but withdrew, in order to act as secretary of the Venezuelan Agency, at the session of Oct. 6th. He was replaced by Dr. Rivas, who acted as secretary of the tribunal on behalf of Venezuela during the remainder of the trial.

10 Printed in this Journal, p. 230.

11 Argument of the U. S., p. 221.

12 Venezuelan reply Argument, p. 1.

13 Opinion of Dr. Barge, U. S. Case, Appendix, 1:691-2; see Ralston’s Report, p. 87.

14 Claimant’s Memorial, United States Case, Appendix, 1:128-9; see Ralston’s Report, p. 99.

15 See Senate Document No. 413, 60th Congress, 1st Session, pp. 65, 58, etc.

16 Venezuelan Argument, p. 65.

17 Argument of the U. S., p. 18.

18 Venezuelan Argument, pp. 18, 30, 32.

19 U. S. Argument, pp. 121, 218, 220.

20 U. S. Argument, p. 122. See Senate Exec. Doc. 79, 52d Cong., 1st session.

21 U. S. Case, Appendix, II:1139.

22 U. S. Argument, pp. 175-81, 220-26.

23 The Venezuelan Agent, invoking Article 82 of the Hague convention, addressed a letter to the President of the Tribunal, requesting an interpretation of the award on these points.

24 Letter of Venezuelan Agent to Tribunal, Oct. 21, 1910.

25 This does not apply to the $28,224.93 originally allowed by Dr. Barge, which is being paid in instalments in accordance with the protocol of 1903. The balance, $64,412.59 (including interest to date of payment), was duly paid by Venezuela within the period specified by the court.

26 Venezuelan Case, pp. 28-9; Venezuelan Counter Case, p. 37. 27 U. S. Argument, pp. 82-91.

27 U. S. Counter Case, p. 4.

28 U. S. Case, p. 6.

29 U. S. Counter Case, p. 5.

31 Protocol of October 6th.

32 Ibid.

33 See U. S. Case, p. 5; Counter Case, p. 5; Argument, pp. 12-16.

34 Argument of the U. S., p. 16.

35 Venezuelan Counter Case, pp. 1-13.

36 Report of the Agent of the United States, Hon. Jackson H. Ralston, in the Pious Fund Case, Appendix II, Foreign Relations of the United States, 1902, p. 12.

37 See Supplement, p. 74, where this letter is reproduced in full.

38 Report of Judge Penfield, Agent of the United States, in the Venezuelan Arbitration before the Hague Tribunal, 1903, p. 18.

39 Ibid, p. 20.

40 The representatives of the United States were, however, at all times careful to maintain that the French translation was furnished as a matter of courtesy and could not be demanded as of right.

41 See Judge Penfield’s report (cited supra), p. 131, at p. 134.

41a The terms of submission in the Pious Fund and Venezuela Preferential cases contain a similar proviso.

42 See address of Honorable John W. Foster, Proceedings of the American Society of International Law, 1909, p. 29, in which he quotes from Mr. Carter’s letter.

43 General Harrison’s Argument in the British-Venezuelan Boundary Dispute, Proceedings, 11:29-82. Cited by General Foster, see supra.

44 “Thus peace is maintained by justice which is the fruit of government as government is from society and society from consent.” Penn: Essay toward the Present and Future Peace of Europe.