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THE FINAL REPORT
OF
G-EO.F.G.E. H. SHIELDS,
AgenT AND Counsel of THE UNITED STATES
BEFORE THE
United States and Chilean Claims
Commission,
HELD UNDER TREATY SIGNED AT SANTIAGO, CHILE,
AUGUST 7, 1892,
-------------- * < * * ~~~~~
WASHINGTON, D. C. :
GIBSON Bros., PRINTERS AND Bookbinders
1894.
United States and Chilean Claims Commission,
WASHINGTON, D. C.
Commissioners.
Hon. ALFRED DE CLAPAREDE,
Commissioner appointed by the President of the Swiss Confederation and
President of the Commission.
HoN. JOHN GOODE, of VIRGINIA,
Commissioner on the part of the United States.
HoN. DOMINGO GANA,
Commissioner on the part of the Republic of Chile.
Agents and Counsel.
HoN. GEORGE H. SHIELDS,
Agent and Counsel on the part of the United States.
HoN. J. FRANCISCO WERG ARA DONOSO,
Agent and Counsel on the part of Chile.
HoN. GEORGE S. BOUTWELL,
Assistant Counsel on the part of Chile.
Secretaries.
ARTHUR W. FERGUSSON,
Secretary on the part of the United States.
MARCIAL A. MARTINEZ,
Secretary on the part of Chile.
Stenographer.
E. H. MCDERMIOT,
|UNITED STATES AND CHILEAN CLAIMS COMMISSION,
No. 2 LAFAYETTE SQUARE,
WASHINGTON, D. C., April 30, 1894.
Hon. WALTER Q. GRESHAM,
Secretary of State of the United States,
Washing/on, D. C.
SIR: I now have the honor to submit a final report of the
proceedings of the United States and Chilean Claims Com-
mission, which completed its labors on the 9th day of April,
1894, as required by the treaty between Chile and the United
States, signed at Santiago August 7, 1892.
Unfortunately, the Commission was not able to arrive at a
result in many of the cases presented to it, on account of the
limitation of Article VIII of the treaty, which provides
that— -
“The Commissioners shall be bound to examine and de-
cide upon every claim within six months from the day of
their first meeting for business as aforesaid, which period shall
not be extended, except only in case the proceedings of
the Commission shall be interrupted by the death, inca-
pacity, retirement, or cessation of the functions of any one
of the Commissioners, in which event the period of six
months herein prescribed shall not be held to include the
time during which such interruption may actually exist.”
The members and officers of the Commission, in pursu-
ance of an earnest desire to dispose of as many cases as pos-
sible, were compelled to work up to the last day assiduously
and constantly. It was, therefore, not practicable for me to
make any special preparation for the report of the doings of
the Commission until it adjourned.
According to Article I of the treaty, “all claims on the part
of corporations, companies, or private individuals, citizens
of the United States, upon the Government of Chile, arising
out of acts committed against the persons or property of
6
citizens of the United States not in the service of the
enemies of Chile, or voluntarily giving aid and comfort to
the same, by the civil or military authorities of Chile ; and,
on the other hand, all claims on the part of corporations,
companies, or private individuals, citizens of Chile, upon the
Government of the United States, arising out of acts com-
mitted against the persons or property of the citizens of
Chile, not in the service of the enemies of the United States,
or voluntarily giving aid and comfort to the same by the civil
or military authorities of the Government of the United
States,”
were referred to three Commissioners to be named, re-
spectively, by the President of the United States, of Chile,
and of the Swiss Confederation.
The Commission was organized in Washington city on the
25th day of July, 1893, when the Honorable Alfred de Clap-
aréde, Commissioner named by the President of the Swiss
Confederation, the Honorable John Goode, Commissioner
named by the President of the United States, and the Hon-
orable Domingo Gana, Commissioner named by the Presi-
dent of Chile, met, and before the Honorable Alvey A. Adee,
Acting Secretary of State, made and subscribed the declara-
tion required by Article IV of the treaty.
The Honorable Alfred de Claparède was elected President
of the Commission by acclamation.
The Agents and Secretaries presented their commissions,
and were recognized as such. The Agents of the two coun-
tries were instructed to draft rules for the consideration of
the Commission, and the Commission adjourned until Au-
gust 15, 1893. .
On that date the Commission reassembled. A draft of the
rules for the regulation of the Commission was presented,
which was considered and amended and finally adopted, a copy
of which is annexed to this report.
During a discussion of the rules the Honorable Com-
missioner and Agent for Chile insisted that the day for the
first meeting for business should not be set at this time, be-
7
cause of the time-limit of the Treaty of six months, which
would not allow sufficient time to prepare the cases by taking
testimony in Chile or Peru, and suggested that the attention
of the Governments of the United States and Chile be called
to this insuperable difficulty, and they be asked to provide
for the extension of the treaty. The Commissioner on the
part of the United States, while expressing a willingness to rec-
ommend an extension of the treaty, thought the Commission
should proceed to do what it could in the way of disposing
of cases that might be ready. The Agent of the United
States stated that he expected to be ready to submit cases
soon enough after the first day for business to be disposed
of within the six months' limit, and allow reasonable time
for defence. After further discussion, Commissioners de
Claparède and Goode fixed October 9, 1893, as the first day
for business, and December 9, 1893, as the last day within
which claims could be filed under the treaty, unless for cause
shown. Commissioner de Claparède accompanied his affirma-
tive vote with the proviso that on the day of the first
meeting for business the first act of the Commission should
be to lay before the two Governments in interest the diffi-
culty referred to, together with a copy of the rules as
adopted, thus showing the manifest necessity of extending
the period within which the claims might be examined and
decided, and urging the extension. The Commissioner for
Chile refrained from voting, for the reasons he had stated.
Considerable discussion arose between the Agents of the
two Governments as to the time within which testimony
should be taken and cases closed by the respective Govern-
ments, the Agent for the United States insisting that in view
of the short limit of the treaty the very shortest possible
time should be adopted ; that most of the cases had long
been pending and both Governments had known their char-
acter and Ought to have made preparations in advance; that
he was not disposed to cut off time for defence and for the
taking of necessary testimony, but that the Commission
8
should act on the treaty as it is and not on the presumption
that it would be extended. The Agent on the part of Chile
maintained that the term of three months was the shortest
time that could be adopted on account of the mail facilities
between the United States and Chile. The Commission
unanimously adopted the three-months period.
After the adoption of the rules, the Agent for the United
States protested against the same extending the time for
completing the testimony beyond the limit mentioned in the
Convention, for the reasons he had already stated.
The Commission directed that the rules should be printed
in English and Spanish ; that notice should be given to the
two Governments that they had fixed the 9th day of Octo-
ber as the day of their first meeting for business, and that
the Secretaries publish notices in certain newspapers, to be
selected by the Agents, of the day of their first meeting, and
that claims should be presented within a period of two
months after such meeting, giving the addresses of the re-
spective Agents of the two Governments, to whom such
claims might be forwarded. These notices were published
in Washington, New York, Lima (Peru), and Santiago (Chile).
At the meeting of October 9, 1893, the Commission adop-
ted a memorial, addressed to the Secretaries of State of Chile
and of the United States, reciting its previous action, giving
its reasons for allowing three months for each Government
to close its cases, and showing that if the time necessary to
settle the pleadings and take testimony on both sides allowed
by the rules is consumed by the parties, the Commission
could not dispose of such claims within the limit of six
months prescribed by Article VIII of the Convention; that
the Agent for the United States had stated that while he ex-
pected to be ready to submit the larger part of the claims of
citizens of the United States early enough to be disposed of
within the limit of the treaty, yet he was advised that it
would be necessary in some cases to take testimony in Chile,
and it was doubtful if such claims could be disposed of
9
within the six months. Therefore the Commission deemed
it to be its duty “to lay these facts, together with a record
of our proceedings and a copy of the rules adopted, before
the respective Governments, recommending to them to extend
the time-limit of said treaty for an additional period of six
months from the 9th of April, 1894.” This memorial was
signed by the Commissioners and by the Agents of the re-
spective Governments, and was forwarded to the Honorable
Secretaries of State of the two Governments. It being ascer-
tained that the extension of the treaty was not likely to be
accomplished, the Agent of the United States, on October
21, 1893, moved the Commission to shorten the time for
pleadings to six days instead of ten, and for taking testimony
to seventy-five days instead of three months, which, after
discussion, was adopted on the 30th of October, 1893.
Every effort was made on the part of the Agent of the
United States to impress upon claimants the necessity of
filing their memorials as early as possible, both by letter to
the parties and counsel where their addresses were known, and
by sending copies of the rules to them, and to our ministers
at Chile and Peru, asking them to furnish copies to the
claimants whose addresses were known to them and re-
quest immediate compliance ; also by the press notices
hereinbefore mentioned.
One case was filed September 26, 1893. Seven were filed
in October, to wit: One on the 6th, one on the 11th, one
on the 12th, one on the 27th, one on the 28th, and one on
the 30th. Seven cases were filed in November, to wit: One
on the 1st, one on the 8th, one on the 14th, one on the 20th,
two on the 22d, and one on the 23d. Twenty-eight cases
were filed in December, to wit: Two on the 2d, nine on the
7th, sixteen on the 8th, and one by leave of the Commission
on the 16th, showing that the majority of the claims were
filed within a week of the last day allowed by the treaty for
filing such claims.
Of these claims, forty were presented by citizens of the
1()
United States against the Government of Chile, amounting
in the aggregate to about the sum of $26,042,976.96, includ-
ing interest. On the other hand, three claims were presented
on behalf of citizens of Chile against the Government of the
United States, amounting to about $264,740 inclusive of
interest. Two of the claims against the Government of the
United States arose out of the seizure of the steamer Itata,
and one was for services rendered by the claimant as a lawyer
to the United States Legation in Chile. The claims against
Chile cover a period beginning at 1816, during the first
struggle of Chile for independence, down to and including
the Congressional Revolution against Balmaceda in 1891.
Ten claims were disposed of on demurrer against the claim-
ants—nine against Chile decided in its favor, and one against
the United States decided in its favor. . Six claims—four
against Chile and two against the United States—were not
submitted by either Government. Twenty-eight claims were
submitted on the part of the United States. Nine of these
were not closed by Chile, eight were determined by the Com-
mission on the merits, six were dismissed on motion for giv-
ing aid and comfort to the enemies of Chile, in one a com-
promise award was entered, one was dismissed for want of
evidence and three were not passed on by the Commission.
The Commission found in favor of the United States claim-
ants in six cases, making awards amounting to $240,564.35,
and have left undetermined sixteen cases of the United States
claimants against Chile, and two of Chilean claimants against
the United States. Reference is made to the cases herein-
after mentioned for full particulars. *
It was necessary to take depositions on behalf of the
United States claimants, in many of the cases, in Chile and
Peru, and the respondent Government also took depositions
in many of the cases in those countries, so that the first case
was argued on the merits on the 13th day of February, 1894.
In all the cases against the United States the defence was
11
managed by the Agent and Counsel for the United States,
he making the briefs and arguments in person. In the cases
against Chile special counsel who represented the respective
claimants had charge of the several cases, attended to the
taking of the testimony, and prepared their briefs. In each
case, however, the Agent and Counsel for the United States
made oral arguments in behalf of the claimants, and replied
to the arguments of the Agent and Counsel for Chile and his
assistant. -
In giving an outline of the cases and the decisions rendered
by the Commission the serial number of the case will be
followed rather than the date at which it was disposed of.
As the decisions of the Commission and the minutes have
been separately printed, it will only be necessary to state
succinctly the nature of the case, the points involved, and
the substance of the decisions in the respective cases.
CENTRAL AND SOUTH AMERICAN )
TELEGRAPH COMPANY
Q) No. 1.
THE REPUBLIC OF CHILE. J
The claimant, a New York corporation, owner of a con-
cession from the Government of Chile to establish and
work a submarine telegraph cable from Valparaiso to some
one of the northern ports of the Republic of Chile, as might
be agreed upon, and alleging that they had complied with
the terms of said concession and caused the submarine cable
to be laid between Valparaiso and Iquique and Iquique
and Chorrillos, claimed damages against the Republic of Chile
as follows:
First. For the prevention by the Congressionalists, in
February, 1891, of the use of the cable between Iquique and
Chorrillos.
Second. For the prevention by the Congressionalists of the
12
use of the cable between 31st of May, 1891, and the 20th
of July, 1891. -
Third. Being required by the Government of Balmaceda
to make direct communication by its cable between Wal-
paraiso and Peru, and said Government agreeing to repay
the expense of so doing and to guarantee the claimant
against damage done to the cable by the Congressionalists;
and that in pursuance of said demand and agreement on the
part of the Balmaceda Government, on the 20th of July, it
made connection between the Chorrillos-Iguique and Iquique-
Valparaiso section of its cable, outside of the territorial
waters of Chile, and restored connection between Valparaiso
and points north of Chile, for the expense of which it asks
compensation.
Fourth. After the overthrow of Balmaceda the Congres-
sionalist Government being established, it granted permis-
sion to the claimant to re-establish the connection at Iquique,
claiming compensation therefor. -
Fifth. For loss of business between Iquique and points
north, by reason of the discontinuance of the connection of
the cable at Iquique by order of Balmaceda's Government,
from July 20, 1891, to the 22d of October, 1891.
Sinth. For money received by the Government of Chile
since the 22d day of October, 1891, to be paid to claimant
for messages transmitted over its lines, alleging that Chile
retained the sum, claiming that it had the right to retain'the
sum under certain provisions of a decree of October 22,
1891, imposing a payment upon, telegrams admitted to the
company's office which were alleged to be in violation of the
company's rights.
Eighth. For payment for messages sent by the Govern-
ment of Balmaceda. - - -
The amount of the claim, as stated in the memorial, in-
cluding interest, is $163,858.55. s -
Testimony was taken on both sides; briefs were filed by
the private counsel of the claimant and by the Agent for
13
Chile, and the case was argued in eactenso by the respective
Agents for the two Governments and the Assistant Counsel
for Chile.
There was a provision in the concession as follows:
“Minth. The Government reserves the right of suspend-
ing the service or use of the cable in case of danger to the
security of the State.”
The brief of the Agent for the respondent Government
raised a question of jurisdiction, citing the law of the 28th
of August, 1886, of Chile, providing:
“Whenever permission or concessions should be granted
for the construction of a public work, or for the enjoyment of
any right to a person or private company, these or those per-
sons who represent their rights, even if they be foreigners
not residing in Chile, shall be considered as if they had
their domicile in the Republic, and will remain subject to
the laws of the country, as if they were Chileans, for the de-
cision of all the questions which may arise from the work
for which the permission or concessions are granted "-
and claiming as the concession of claimant was granted
subsequently to the passage of said act the company must
be considered to have renounced its citizenship for all the
purposes of the concession ; and that as it “could have no
more rights than those corresponding to a Chilean citizen,
the jurisdiction " of the Commission does not extend to its
claims.
That so far as the acts complained of grew out of the
Provisional Government at Toluique, whether said Gov-
ernment be considered as insurgents, or a de facto Govern-
ment, Chile was not liable in either case. As to acts com-
mitted by mere insurgents a state was not bound to indemnify
them, save when it could prevent the acts and voluntarily
failed to do so. Citing the case of Lovett vs. Chile decided
by this Commission (hereinafter referred to) and the cases
therein cited. Citing, also, Bluntschli, Le Droit International
Codifié, art. 380; Wharton's International Digest, vol. 2,
§ 223, and other authorities. -
14
Further, that Balmaceda was not negligent in putting
down the so-called insurgents, and that he at no time had
power to do so.
On the point of the Provisional Government being a de
facto Government he claimed that residents in a country
subject to a de facto Government, be they citizens or aliens,
are bound to recognize and respect it the same as the au-
thority exercising sovereignty; this Government has full
scope of action and is invested with all the rights the law
confers on a Government de jure. Citing Wharton's Int.
Dig., vol. I, secs. 7 and 69; Lawrence's Wheaton (1863),
page 575 ; and 9th Opinions Attorney-General, page 140.
He further claimed that by reason of clause 9 of the con-
cession the Provisional Government of Iquique could sus-
pend the services or use of the cable to the same extent
as the Government of Balmaceda, for the reason that it
exercised sovereignty at Iquique, and had the right to cause
the laws of the Republic to be respected.
It was further contended that if the acts of the Provis-
ional Government are not accepted as legal it is “because its
authorities cannot be viewed as authorities of Chile, so far as
the United States are concerned.” That as the Commission
had jurisdiction of “those claims only ‘arising out of acts
committed by the civil or military authorities of Chile or of
the Government of the United States,’ it therefore had no
jurisdiction of claims arising out of acts of those authori-
ties.”
The Agent for Chile also objected to the basis on which
the damages of the claimant were estimated, contending that
in consequence of the measures adopted by the Government
of Balmaceda there was a complete paralyzation of trade
between the said ports.
As to the claims growing out of the action of the Govern-
ment of Balmaceda, it was contended that his order and
agreement to pay the expenses of cutting out the cable at
Iquique was contrary to the terms of the concession of the
15
act of 1887, which required that the telegraph should ter-
minate at Iquique and there unite with the cable laid be-
tween Iquique and Chorrillos. That to modify the stipula-
tions of the concession of 1887 it would have been necessary
to have had a similar decree or some evidence of the modi-
fication reduced to writing, claiming that the arrangement
between Mr. Patrick Egan, Minister of the United States in
Santiago, and Balmaceda was not sufficient evidence of au-
thority to cut out the cable at Iquique.
He also maintained that the company not having paid the
taxes imposed by Chile on its messages would not be enti-
tled to recover the money which Chile admittedly had in its
possession. -
These are the main points of the contention of Chile, al-
though other minor points were made in the brief.
It was claimed in the brief for claimants, and in the ar-
gument of the Agent of the United States:
First. That a State is bound in international law to per-
form its contract obligations to foreigners, and to respect and
protect the property of foreigners within its territory; and
that if a State fails in any one of those duties it is liable to
indemnify the sufferers by its wrongful acts or by its default
for all losses caused thereby. Citing Phillimore's Int. Law,
vol. II, p. 8; Marten's Droit des Gens, liv. 3, chap. 3, 299;
Wildman Int. Law, 193, 194; Woolsey Int. Law, 38–112 ;
Report of Venezuelan Commission, p. 297; Wattel, book 2,
chap. 8, sec. 104; Bluntschli Int. Law Codified, sec. 386,
also sec. 380; and Woolsey Int. Law, sec. 61.
Second. That the Balmaceda Government constituted the
legal and recognized Government of Chile, and that all of its
dealings with the claimant bound the Republic of Chile ;
that it had been recognized as the de facto and de jure Gov-
ernment by the United States and all other foreign States,
and that no other Government had at the time of the acts
complained of been recognized, and that the existence of the
civil war in no respect changed or impaired the status of the
16
Balmaceda Government so far as the citizens of the United
States were concerned. Citing Kennett v. Chambers, 14
How. 44; 1 Kent's Commentaries, 116; DeWutz v. Hen-
dricks, 9 Moore, C. B. Reports, 586; Yrisson v. Clement, 2
Carr and P., 223; Cheriot v. Faussat, 3 Binney, 252.
Therefore that the claims growing out of the contracts
made with the Balmaceda Government were valid and
enforceable against the Republic of Chile.
Third. That the claimants could only recognize the exer-
cise of the right of the Balmaceda Government to suspend
the cable in time of war under the 9th article of the conces-
sion ; and that the fact of the change of the sovereignty of
Chile does not affect its contractual obligations. Citing
Kent's Commentaries, vol. I, p. 28; Bluntschli, sec. 40;
Wheaton's Int. Taw, sec. 30 ; and also the case of Chile v.
Edwards et al., before Mr. Justice Kennedy, of England, re-
ported in the London Times of December 21, 1893.
On the point that a State is liable to indemnify injured
parties for its omission to protect neutral aliens from wrongs
by insurgents, citations were made from Wharton's Int. Law,
sec. 223, pp. 576, 579, and 581; also reference was made to
the treaty of September 10, 1857, between the United States
and New Granada, and the awards by the Commission under
that treaty in the Panama Railroad Company in the case of
Fretz. Caldera Case, 15 C. C. Repts. p. 546. Reference
was also made to the indemnity paid by China to the United
States for damages done by the Taeping rebellion, and the
indemnity paid to Italy by the United States on account of
the New Orleans riots, and that paid by Chile to the United
States on account of the crew of the Baltimore.
The principle of international law contended for was that
the rights and duties created by that law are reciprocal; that
a State in acquiring the right of non-intervention in its
affairs by foreign States assumes the reciprocal duty towards
those citizens of protecting their citizens within its territory
in their persons and property. Citing Calvo, sec. 282. And
17
that the Republic of Chile is liable for the acts of the Con-
gressionalists on the ground that they were insurgents against
the recognized Government of Chile, and that it was the
duty of the Republic towards foreign nations to protect the
citizens of the latter from injury from a body of its citizens
of that character; and that this principle applied whether
the Congressionalists were mere insurgents, or whether they
were a de facto Government at the time of the injuries com-
plained of. Citing Calvo, sec. 66; Bluntschli, sec. 99;
Wheaton's Int. Law, sec. 20; Calvo, vol. I, sec. 70; Sir
Henry Maine, Int. Law, p. 54; Wheaton's Int. Law, sec. 21;
Calvo, Le Droit International, 1, 120, 131; Bluntschli, sec.
39; Wharton's Digest, sec. 85; Phillimore, vol. II, c. 7, p.
126; Halleck, Int. Law, sec. 665; Wheaton's Int. Law, sec.
32; Wildman, 1–57; Wattel's Law of Nations, p. 639;
Wheaton's Int. Law, sec. 7. -
On the question of damages for the interruption of the
use of the cable, the only method of estimating the loss by
interference with business is to take as a measure of the
damages the profits of the business for a like period either
before or after the interruption. (Sedgwick on Damages,
secs. 182, 185, and 1169.) -
It was also contended that the Government intended by
the 9th paragraph of the concession was de jure Govern-
ment of Chile, a status which the Congressional Government
did not possess at the time of the injuries; and, second, that
the proper construction of the said 9th clause is that the de
jure Government should have, by the very terms of the con-
tract, the right to suspend the use of the cable, but that the
exercise of this right shall be coupled with the duty of mak-
ing compensation for such suspension. Citing Wharton's
Int. Law, p. 373, Dana's edition; Hall on Rights and Du-
ties of Neutrals, pp. 187, 188; Agent's Report of the Amer-
ican-British Claims Commission, pp. 52, 53, 54, and 55, and
other cases. Reference was also made to a Norwegian ves-
sel laden with coal, which was beached by Balmaceda to
18
prevent the ship from falling into the possession of the Con-
gressionalists, for which the present Government of Chile
indemnified the owners. Also to a German steamer laden
with nitrate in the Tarapacá country against the order of
the Balmacedist Government, which subsequently came into
the control of the Balmacedists and was detained, for which
the present Government of Chile paid indemnity. Cited in
a memorial of the Minister of Foreign Affairs of Chile and
presented to the National Congress in 1891.
The whole case was thus summed up : That the claimant,
relying upon the contract with the Republic of Chile, laid
its cable at a very large expense. Just as it had done so a
civil war broke out in Chile between two political parties.
The company was neutral between them, but conceived that
under principles of international law it could fulfil its duties
to the Republic only by dealing with its recognized
Government. It entered into a new contract with Chile
through that Government, and is seeking its enforcement.
During the disturbance of the civil war the company
suffered heavy pecuniary losses by being prevented from
using its cable. This interference with its property was the
act of a de facto Government, which then probably repre-
sented the majority of the population of Chile and became
the undisputed and recognized sovereign of the Republic.
The Government which inflicted this loss upon the company
did so without reaping, and without the prospect of reaping,
any corresponding advantage to itself by its action. It was
also shown that the present Government of Chile paid
indemnity to the West Coast American Telegraph Company
for the losses which it sustained by the cutting of the cable
at the ports of Arica, Iquique, and Caldera by the Con-
gressionalists' squadron, and also that the West Coast Tele-
graph Company was indemnified by the Balmacedan Govern-
ment for damages and losses which the company suffered
on account of the suppression of the telegraph service.
The majority of the Commission (Mr. Commissioner Gana
19
dissenting) decided that the party of the Congressionalists
had the character of a de facto Government, possessing in
the territory subject to its dominion the right to exercise
jurisdiction according to the laws enacted and engagements
accepted by and for the country, and recognized its right to
regulate its relations with the claimant conformably to the
general provisions of the Supreme Decree of February 28, 1887,
and more especially according to its Article IX, which reserves
to the Government the right of suspending the service of the
cable in case of danger to the security of the State. Conse-
quently they declared groundless the claims of the company
enumerated under items one and two, based on those acts of
the de facto Government which the Government of Chile
was authorized to do by the said article of the concession.
As to the other claims, the majority of the Commission
was of the opinion that the amount of the expenses ordered
or caused by President Balmaceda and the consequences
thereof have to be recognized, and rendered judgment for
the claimant for the expense of making connections between
the two sections at Iquique as ordered by President Balma-
ceda, for the expense of reconstruction of the cable at Iqui-
que, and for interruption of the cable between Iquique
and Chorrillos from July 20, 1891, to October 22, 1891; and
for the amount admitted by Chile to be due for cablegrams,
aggregating the sum of $40,725.89, United States gold coin,
without interest. -
As to the claim for money received by Chile as agent of
the claimants and not paid over to it, $5,850, the evidence
being insufficient to enable a satisfactory conclusion to be
reached as to the validity of this item, the Commission de-
clined to render any decision, without prejudice to the
claimant.
Commissioner Gana concurred with the majority in the
award for the expense of making the connections between
the two sections at Iquique and the reconstruction thereof
because the Government of Balmaceda had agreed to pay
20
the cost of establishing direct communication between Wal-
paraiso and Chorrillos, but dissented as to the award for the
interruption of the cable between Iquique and Chorrillos
from July 20, 1891, to October 22, 1891, on the grounds that
the de facto Government existing at Iquique exercised over
the territory subject to its jurisdiction the same authority
that the de jure and de facto Government did over the rest of
the Republic ; that as the decree of February 28, 1877, re-
served the right to the Government to suspend the com-
pany's operations, the de facto Government established in
the latter city (Iquique) could legitimately suspend there, as
it did in fact, telegraphic communication between Iquique
and Valparaiso ; that by cutting the cable at Iduique the
company sustained no damages except the expense thereof,
but on the contrary secured positive advantages, for if it lost
the business between Iquique and Chorrillos, it secured that
between Valparaiso, a city of much greater importance than
Iquique and Chorrillos, and could also utilize its connection
with Buenos Ayres by the trans-Andean lines; that there
was no proof showing that the Balmaceda Government made
any promises in regard to this item.”
EDWARD C. DU BOIS
U.S. No. 2.
THE REPUBLIC OF CHILE.
The facts alleged and proved in this case are as follows:
That claimant was a native-born citizen of the United States;
that in 1871 Peru made a contract with certain parties for
* NoTE.—Item 5 allowed by the majority “for interruption of the
cable between Iquique and Chorrillos from July 20, 1891, at the time the
cable was cut out at Iquique, to October 22, 1891, at the time the connec-
tion was restored, $29,294.11, was caused by the cutting out of Iquique by
I3almaceda's orders. As the company thus lost connection with Iquique
they could not get Iquique business north of Chorrillos. The majority of
the Commission evidently considered that compensation for this loss was
intended to be included within the agreement of Balmaceda to pay the ex-
penses of opening communication with Valparaíso, and a guarantee against
damages to the cable. -
21
the construction of the Chimbote, Huaraz and Recuay Rail-
road, which was assigned to Henry Meiggs, an American
citizen, and a contract executed between Peru and Meiggs
for the construction of said road; that Meiggs began the
construction of said road and completed part thereof, and on
the 18th of March, 1874, made a contract with the claimant,
as sub-contractor, for the completion thereof for 10,500,000
Peruvian dollars. -
The contract between Peru and Meiggs, among other things,
provided: That Peru should deposit in the hands of its
agents £950,000 sterling, to pay the amounts of all invoices
and bills for material bought intended for the construction
of the railroad, or for the use and consumption of its em-
ployees and laborers. The work was to be paid for in
monthly instalments, on the certificate of the inspecting
engineer, which should show the value of the work done,
excluding the amount for materials purchased abroad which
have been employed therein, so that the amount paid out by
the Government shall never exceed that represented by the
work done and the materials on hand for the work.
The contract further provided as follows:
“XX. In case the Government shall fail to pay three con-
secutive monthly instalments, thereby causing a paralyzation
of the work, the contractors are authorized either to suspend
the work without thereby losing their right to claim the pay-
ments, or to continue the railroad until fully completed and
to operate the same on their own account until they have
fully reimbursed themselves for the expenditures made in
this behalf; the Government for this purpose mortgaging
to them the line, with all its appurtenances, engines, rolling-
stock and equipments, stations, buildings and belongings, and
also all that may form a part of said railway line which
might have been purchased with funds of the State.”
The contract also provided:
“The contractors shall not assign to another person the
rights arising out of the contract without the approval of the
Supreme Government.”
22
In the contract between Meiggs and Du Bois (part of the
road having been constructed by Meiggs), Du Bois obligated
himself to construct, conclude, equip, and deliver the rail-
road from Chimbote to Huaraz and Recuay conformably to
the conditions and specifications established in the contract
of the 31st of October and transfer of the 10th of Novem-
ber, 1871, between the Supreme Government of Peru and
Mr. Henry Meiggs, acknowledging himself instructed and
informed of all stipulations of said contract, and binding
himself to fulfil them in all their parts as far as they affect
the contractor, Mr. Henry Meiggs, and to the entire satisfac-
tion of the latter. -
By Article XVI, “Mr. Henry Meiggs guarantees to the
subcontractor all the rights and privileges which the contract
celebrated with the Supreme Government gives to him.”
Under this contract Du Bois began the construction of the
road, and was recognized as such contractor by the Govern-
ment of Peru, the evidence showing that the agents of Peru,
both in the United States and Europe, bought and paid for
materials for the construction of the road on the order of
Du Bois in the same manner as they had previously bought
the same on the Order of Meiggs.
In 1877 the Government of Peru became financially em-
barrassed and failed to make monthly payments according
to the terms of the contract, and three months thereafter the
memorialist suspended the work thereon. At that time there
were thirty-five miles of the railroad in running order, well
stocked with engines, cars, machine shops, stations, and
buildings, and the grading and masonry of thirty-five miles
more were nearly completed, and there was a large quantity
of materials belonging to the railroad, and also belonging to
the claimant in his own right on hand.
Du Bois continued in the possession of the railroad, with
all its property, under the 20th article of the contract between
Meiggs and the Government of Peru, and the 16th article of
23
the contract between Du Bois and Meiggs, and continued in
the occupation and running thereof under said contracts until
the times hereinafter mentioned. -
In September, 1877, Meiggs died, leaving a will appoint-
ing a board of directors composed of Charles Watson and
others to carry out his said railroad contracts. This board
of directors gave Du Bois a full power of attorney to ad-
minister the part of the railroad that was built, and to con-
tinue the construction of the line, and guaranteed him prac-
tically the full power of the executors in connection there-
with. On May 21, 1878, these directors and heirs of Henry
Meiggs transferred the contract of Henry Meiggs with the
Government of Peru to Mr. Watson. Consent to this trans-
fer was made by the Government of Peru on the 22d of
September, 1881. On the 21st day of May, 1878, Charles
Watson ratified and affirmed the contract between Meiggs
and Du Bois, and Watson acknowledged that he owed Du
Bois 352,800.25 soles as subcontractor on said railroad.
Du Bois claimed that by virtue of these contracts and by
virtue of the laws of Peru he was in possession of the
railroad and property as a mortgagee to secure the amount
due him thereon, and also that he held the same as a con-
structor with a builder's lien on the property until the
amount due him was paid.
The evidence also shows that he had purchased a large
amount of machinery, tools, implements, and material for
the construction of the road, which he had paid for with his
own money, all of which was in his possession on the 10th
day of September, 1880, when Geml. Patricio Lynch of the
Chilean army entered the harbor of Chimbote with certain
Chilean ships and took possession of said town and said
railroad; that the town was not fortified nor was any re-
sistance made to his landing, nor were there any Peruvian
soldiers within hundreds of miles of said port; that the
soldiery under the command of Genl. Lynch began an indis-
criminate, unjustifiable, and unprovoked appropriation, de-
24
struction, and despoliation of the memorialist's property,
notwithstanding notice was given that he was an American
citizen ; and that Genl. Lynch on departing gave orders for
the destruction of the locomotives and rolling-stock of said
railroad, and a large amount of lumber and ties were by his
orders burned and destroyed. Claimant caused inventories
of the property destroyed and taken away, both of his indi-
vidual property and the railroad property, to be made out by
parties cognizant of the amount and value thereof, and duly
protested against the said illegal acts of said troops.
It also appears that afterwards, in December, 1881, the
Chilean forces, under command of Captain Jorge Montt,
again visited Chimbote and took possession and removed all
rails, cross-ties, and other railroad property left there; and
again, in January, 1882, the said Chilean forces took and
carried away all rails, plates, bolts, etc., belonging to the rail-
road and in the memorialist's possession, against all of
which claimant duly protested.
The evidence shows that on the 20th of July, 1882, the
memorialist, by reason of the losses and injuries done to his
property and that of the railroad, was compelled, and did,
enter into a contract with Watson, by which claimant's con-
tract with Meiggs was rescinded and cancelled upon the con-
ditions and stipulations contained therein, and the posses-
sion of the railroad surrendered to said Watson. In said
contract Watson ceded and passed over to Du Bois all his—
“rights to the indemnity to be exacted from the Chilean
Government for the materials seized or destroyed by au-
thority of its dependency, and for the damages they have
caused to the contractor of the Chimbote railroad.”
There was also evidence introduced by the claimant to
show that the destruction and carrying away of this prop-
erty was not necessary as a military operation, but was
wanton and without excuse.
Claimant asked judgment for the amount due him by the
Government of Peru on account of the construction of said
25
road, for the value of his individual property taken and de-
stroyed, and claimed under the laws and usages of Peru 15
per cent. profit on his contract to build said road, which he
would have made but for the destruction thereof by Chile,
the total claims and interest amounting to $2,451,155.58.
Chile offered evidence tending to show that claimant had
no individual property on this railroad, and that the destruc-
tion and carrying away of the property was a legitimate act
of war, as it belonged to Peru.
Briefs were filed by the private counsel for the claimant
and by the Agent for Chile, and the case was fully argued
by the Agents for the United States and Chile, and Assistant
Counsel for Chile. th
On the part of the United States it was contended :
First. That Du Bois was a subcontractor for the comple-
tion of the road.
Second. That under the contract between Meiggs and Peru
a mortgage was given on the road as security for the build-
ing of the same, and that the guaranty of Henry Meiggs was
that the mortgage should redound to the benefit of his sub-
contractor, E. C. Du Bois.
Third. That as claimant had possession and control of the
railroad in default of payment on the part of Peru and was
entitled under the contracts to hold it until reimbursed, he
is entitled to the benefit of the mortgage lien on said railroad
and property under the terms of said contracts for the work
that had been done by him thereon and for the materials
furnished by him for its construction.
Fourth. That under the laws of Peru claimant held a
builder's lien upon said railroad as evidenced by Article 2033
of the Civil Code of Peru, and Article 9 of the Preliminary
Title of said Code in accordance with the opinion of Mr.
Francisco García Calderón, ex-President of the Republic,
ex-Minister of State, Senator to the National Congress, and
author of the Dictionary of Peruvian Legislation; Mr.
Luciano Benjamin Cisneros, ex-Minister of State, senior
26
member of the Illustrious College of Lawyers; Mr. Cipriano
Coronel Zegarra, ex-Minister of Peru to the United States,
and ex-Minister of State, and Mr. Juan Francisco Pazos, ex-
Minister of Justice and Delegate Attorney-General of the
Supreme Court, four leading lawyers of Peru.
Section three of Article 2033 of the Code of Peru, in enu-
merating those that— - -
“acquire a lien by provision of law and without the necessity
of registering an indenture of debt,”
provides as follows:
“Third. Purveying creditors on the estate, vessel, or
industrial establishment whose preservation, repair, or defence
was due to the works, labor, materials, or money of the former.”
Fifth. That the ceding and passing over by Watson of
rights to indemnity from Chile to Du Bois was simply a quit-
claim to prevent any defence on the ground that the damages
were due to Watson and not to Du Bois. It was also claimed
that the damages resulting directly from the destruction of
this road were not only the loss of the property but a loss of
the profits which Du Bois could have made if permitted to
carry on the work under his contract, mortgage, and builder's
lien. In support of this proposition it was shown that it
was the usage and custom in Peru to allow fifteen per cent.
of the contract price for damages where the contract was
prevented from being fulfilled by the other party.
Siath. That as Peru knew all the facts and had paid esti-
mates on the road to Du Bois and recognized his order for
articles bought for the construction of the road Du Bois
was in possession with the consent of Peru and entitled to
the security of the mortgage and his builder's lien.
Seventh. That as neither Meiggs nor Peru could deny Du
Bois’ right to possession of the road and his right to a lien
thereon and his right to the mortgage in the contract, Chile
could not attack that right collaterally and defend on the
27
ground that the property was the property of Peru which
Chile, as a belligerent, had the right to destroy or confiscate.
Eighth. That as the report of Col. Lynch showed that—
“ the town of Chimbote made no resistance of any kind and
that he took possession of the place in the most perfect
order and quartered his troops in the spacious buildings of
the railroad station,” -
and as it was shown that there were no Peruvian troops
within hundreds of miles of Chimbote, and that the railroad
could not be used for any purposes of warfare by Peru, and
that as Chile had notice of the neutral character of the prop-
erty and of Du Bois’ claim thereto, the Government of Chile
is liable for its wanton and unnecessary destruction.
In regard to the damages, the claim was made that they
were not indirect nor consequential in the sense of indirect
damages, but that they were the direct and immediate result
of the illegal action on the part of Chile. Citing Sedgwick
on Damages, page 204, and the cases therein cited ; Wake-
man v. The Wheeler and Wilson Manufacturing Co., 101
N. Y. Reports, p. 205, and Article 1999 of the Chilean Code,
which provides:
“Damages may be claimed according to the general rules
of contracts whenever one or the other of the parties fails to
execute what was agreed upon or such execution has been
delayed. Consequently, the party ordering the work, even in
case of having stipulated a single and total price for it, may
order it discontinued, reimbursing the artisan the full costs
and giving him the value of the work done and wha the
might have made on the work.”
In reply the Agent of Chile contended : First. That claim-
ant could not recover for the amount of damages which he
suffered by reason of his inability to carry out his contracts
in consequence of Said appropriation and destruction, for
thereason that they were indirect and consequential. Quoting
Duranton, Cours de Droit Français, vol. X, pp. 480, 481;
Barin v. Steamship Co., 5 Am. L. Reg. 459; Greenleaf on
28
Evidence, vol. II, sec. 256; Short v. Skipwith, 1 Brock. 114;
Treaty of Washington, vol. VI, p. 20; Harvey Lake v. Mexico,
No. 607, United States and Mexican Commission; Hammeken,
No. 158, same Commission, Awards, vol. VII, p. 387;
Bluntschli, Le Droit International Codifié, Art. 779; Calvo,
Le Droit International, sec. 2579; Geneva Tribunal, decree
of January 15, 1883, issued by the Khedive of Egypt to pay
the indemnities arising out of the Alexandria riots of June,
1882. -
On this point he further claimed that, as the Government
of Peru became financially embarrassed and failed to make
the monthly payments according to the terms of the contract
in 1877, it was evident that the contract could not have been
carried out by Du Bois, and that the profits on the contract
claimed should be considered as losses from the day on which
the Government of Peru found itself in the absolute impos-
sibility of liquidating its obligation.
As to the property belonging to the railroad, the Agent
for Chile claimed that, by reason of the failure of the Gov-
ernment of Peru to consent to the assignment by Meiggs of
his contract to Du Bois, no rights of Meiggs passed to Du
Bois; that the heirs of Meiggs simply gave Du Bois a power
of attorney to administer the railroad built and continue the
construction of the line, which was not a recognition of a
transfer of the original contract to Du Bois, for the same
heirs afterwards transferred that contract to Charles Watson.
He also claimed that the Consular Agent of the United
States in Chimbote deceived Col. Lynch in claiming that the
rolling-stock and materials of the railroad belonged to Du
Bois, when in reality they were the property of the State, and
that neither the Chilean authorities nor the Government of
Peru, nor the heirs of Henry Meiggs, ever recognized Du
Bois as the direct contractor for the construction of the
railroad; that in the rescission of the contract between
Meiggs and Du Bois, which was made between Du Bois and
Watson, the cession therein by Watson of his rights to in-
29
demnity against Chile for the property seized and destroyed
gives Du Bois no right to maintain the claim, because it
would not have been within the jurisdiction of the Commis-
sion, since it belonged to a British subject.
He also claimed that there was no constructor's lien under
the law of Peru; admits the correctness of the opinions of
the Peruvian lawyers on this point, but claims that neither
they nor this Commission can apply the law to the facts in
this case, and that the lien could only be invoked by Meiggs
or his successors, and not by Du Bois.
He then claimed that Meiggs himself could not have en-
forced this lien, because Peru subsequently, by decrees, had
declared that it owed nothing to Meiggs, and that Du Bois,
at the time the Chilean forces occupied Chimbote, managed
the railroad as an obligation demanded by the Government,
which the Peruvian Congress could end whenever it pleased;
that all the materials, tools, etc., which existed in the Chim-
bote Railroad Company belonged to the Government of
Peru. - -
As to the private property claimed by Du Bois, he in-
sisted: First. That the evidence was not sufficient to show
that Du Bois owned any individual property separate from
the railroad property. Second. That his individual prop-
erty, if he owned any, was so commingled with that which
pertained to the hostile State that the invading army could
not be, and was not, compelled to segregate the individual
property from the property of Peru.
In conclusion he insisted that Chile had a right, in the
prosecution of the war, to take and destroy the property of
Peru in order to show that it was no longer able to defend
its territory, even against small detachments, and that the
action of Col. Lynch at Chimbote was not as extreme as the
action of Gen. Sherman in his march to the sea and at
Charleston. Citing Percy Gregg's History of the United
States. -
Recapitulating, he said that Du Bois has not proved that
30
he was sole owner of any of the materials stored in the
Chimbote railroad which it is alleged were taken or de-
stroyed by the Chilean forces in 1880. He has no title
whatever to claim for damages occasioned to the property of
said railroad, and in no case could he claim for indirect
damages, which are not recoverable between nations.
In reply the Agent for the United States insisted that the
authorities cited on the question of damages by the Agent
of Chile recognize that damages consisted of profits pre-
vented as well as losses actually sustained. He also dis-
avowed any demand for consequential or indirect damages,
claiming that the losses of profits of which the claimant had
been deprived were the direct result of the seizure and de-
struction of the property by Chile, and that such damages
were recognized by the local laws both of Chile and Peru,
claiming that Du Bois' losses were damages growing out of
the very act itself and not something which might be specu-
lative or entirely outside and never contemplated by the
parties; that under the laws of Peru, if Peru had taken pos-
session of the property and prevented the completion of the
contract—that under her laws and those of Chile she would
have been liable for the reasonable profits that the comple- .
tion of the contract would have earned ; that the failure of
payment on the part of Peru in no way affected Du Bois’
ability to complete his contract, as there were thirty-five
miles in running order and well equipped, and a large
quantity of material on hand with which Du Bois, under the
20th article of the contract between Meiggs' and Peru,
together with the earnings of the road which he had a right
to the possession of until he was paid, would have been en-
abled to complete the contract, and that the sole reason why
this was not done was the destruction and carrying away of
the property by Chile.
He also reiterated his position that Du Bois was suing as
a subcontractor and not as an assignee of the Meiggs con-
tract with Peru, and that the consent of Peru to the assign-
ment of the Meiggs contract was not material.
31
He referred to the fact that the evidence showed repeated
recognition on the part of the agents of Peru of Du Bois’
orders, both in the United States and in Europe, citing
their letters to that effect, and the invoices showing the
shipments by them on Du Bois' orders.
He also showed that the testimony of Chile in regard to
Du Bois not owning the individual property was negative in
its character and largely hearsay, while that of claimant was
positive and conclusive. -
He then quoted a letter from Minister Osborn to Mr.
Evarts (page 102 of the “War in South America,” published
by the United States in 1882), calling attention to the fact
that Chile proposed to take more vigorous measures than
theretofore in the prosecution of the war. Accompanying
this letter was an order of the Minister of War and Marine
of Chile, dated February 3, 1880, declaring that hostilities
thereafter must be conducted with greater severity; all towns
on the coast that are protected by cannon should be bom-
barded and destroyed, and all railroads that are serving the
enemy in the transportation of troops and elements of war
should be fired upon. -
“In a word, our standard of conduct hereafter must be to
do the enemy all possible injury without neglecting anything
that is authorized by the law of the nations until it is made
to feel the necessity of obtaining peace. * * * Now
we have sufficient data to believe that we shall not oblige
Peru to lay down her arms except by reducing her to abso-
lute want and making her feel in the property and interests
of her inhabitants all the burdens of war.”
The United States Minister protested to Señor Amunātegui,
the Minister of Foreign Affairs of Chile, against such meth-
ods of carrying on the war.
Mr. Evarts, Secretary of State of the United States, in a
letter to the Minister of Chile, on page 110 of the same
work, called his attention to this order of carrying on the
war with unusual severity, in answer to which Mr. S. F. Asta
32
Buruaga, in a letter on the 24th of April, 1880, addressed to
Mr. Evarts, defending the course of Chile, stated, among
other things:
“Yet, in spite of all, I can likewise assure your Excellency
that the Government of Chile, with a fairness and justice
which characterize it in its dealings with friendly nations,
will not refuse to make such reparation as may be called for
by sound reason and the recognized principles of interna-
tional law, and it hopes that the claims which it may prefer
on account of the acts of foreign citizens during the war may
be considered in the same spirit ºf reciprocity.”
The Agent of the United States further said he did not
assume to criticise Chile's method of carrying on the war,
but if she did carry on the war in such a manner as to de-
stroy neutral property in pursuance of the orders of her
Minister of War, that she did it at her peril, and must answer
for it ; and as this property was beyond the seat of war and
in no way connected with the war between Chile and Peru,
the evidence showed that there was no necessity for its de-
struction, and that Chile should pay for this neutral prop-
erty. He also insisted that the equity of the case was against
Chile; that she had taken possession of the richest provinces
of Peru as a war indemnity and holds them yet ; that she
had actually taken Du Bois’ property to Chile and used it
for her own purposes, and that having thus enriched herself
by the proceeds of the war it did not lie in her mouth to ob-
ject to the payment for neutral property destroyed by her
soldiers outside the customary usages of war.
There were other questions discussed in regard to the
character of the testimony introduced by Chile which are not
necessary to present here.
The majority of the Commission, Messrs. Claparède and
Goode, held that—
“the Government of Chile should be held responsible for
the wanton and unnecessary destruction of claimant's prop-
erty at Chimbote by General Lynch, in command of the
Chilean forces,”
33
and rendered judgment for $155,232, United States gold
coin. .
Commissioner Gana dissented. He first states the claims
and says it was necessary to determine : First. Had or had
not Mr. Du Bois a mortgage or lien on the Chimbote railroad
when the Chilean forces committed the acts of which he
complains? Second. Did or did not the claimant suffer
any damage in consequence of said acts 2 Third. Did or
did not Mr. Du Bois have any property exclusively his own
in Chimbote of which he was dispossessed by the Chilean
forces 2
He then cites the provisions of the 19th, 20th, and 24th
articles of the contract between Meiggs and Peru, and shows
that such contract could not be assigned by Henry Meiggs
without the approval of Peru.
He then cites the agreement between Meiggs and Du Bois
and says that the Government of Peru continued by the
terms of the contract to treat directly with Mr. Meiggs, the
only contractor that it recognized, without concerning itself
with the private arrangements the latter might make to fulfil
his obligations.
He then recites the death of Meiggs, and the powers of his
legal representatives. The contract by the legal representa-
tives of Meiggs and Watson shows that the Peruvian Gov-
ernment did not give its approval of this assignment until
the 19th of September, 1881.
FIe refers to the contract between Watson and Du Bois,
dated 21st of May, 1878, which recognizes a balance due
Du Bois of 352,800.25 soles for work done on the railroad,
and holds that the assignment of the Meiggs contract to
Watson had no effect until approved by Peru in 1881; that
Watson could not in 1878 legally change the contract of
1874, nor ratify it; and that the credit therein recognized
was a personal credit of Du Bois against Watson or the heirs
of Henry Meiggs; and that by that agreement every credit
that Du Bois had against Meiggs or his heirs was cancelled.
34
He then recites the contract of July 20, 1882, between
Watson and Du Bois, cancelling the contract of May 21,
1878, and ceding all his rights to indemnity over to Du Bois.
That as by this contract Watson conveyed his rights and
Du Bois accepted the rights so conveyed, the person who
suffered the injuries was Watson and not Du Bois. The
latter could not, therefore, sue before this Commission, as
the damages were done to an English subject.
He then discusses Article 2033 of the Civil Code of
Peru in regard to the lien, and says if the lien existed at all
it was only in favor of Meiggs and not for the benefit of a
private subcontractor. He then quotes the article referring
to those who acquire a lien : -
“Art. 2033. Repairing (refaceionarios) creditors on the
real estate, vessel, or industrial establishment, whose pres-
ervation, repair, or defence is due to the works, labor, mate-
rials, and money of the former,”
and says that it refers exclusively to creditors for repairs
(refaccionarios). The word refacción presupposes the cer-
tain and determinate existence of the thing repaired (refac-
cionada), and, at the same time, presupposes the occurrence
of an accident which has injured or damaged the thing re-
paired. The law circumscribes and limits this right to the
repair on real estate, a vessel, or industrial establishment.
It cannot be reasonably maintained that a railroad is an
industrial establishment, or real estate, or a vessel. That
the lien law cannot be so extended as to embrace the con-
tractors of a railroad line.
He then argues that even admitting that Du Bois had a
lien on the railroad and its appurtenances, he would not
have a right to enter a claim against the Government of
Chile for the destruction. That the very fact that he pre-
tends to have had a lien on the railroad is an admission
that the property did not belong to the claimant. That the
destruction of the thing mortgaged does not affect the obliga-
tion to pay resting on the debtor. That Du Bois was there-
35
fore not damaged by the action of Chile, as the evidence did
not show that the undestroyed part of the Chimbote railroad
was insufficient to satisfy the debt which Peru owed him.
He then holds that the property of the Chimbote railroad
was not the property of Mr. Du Bois but of the Government
of Peru, and that under international law Chile was entitled
to take and destroy the property of the Peruvian Govern-
ment in Chimbote. Citing Wheaton Int. Law ; Halleck
Int. Law, chap. XIX, page 447; Fiore Int. Law, p. 181.
And therefore holds that the Du Bois claim, so far as it
represents damages caused by the Chilean forces to the
Chimbote railroad, should be disallowed. He then dis-
cusses the claim for the individual property of Du Bois, and
holds that the evidence that he owned any individual prop-
erty which was destroyed is insufficient to sustain the
claim, and therefore thinks that the claim in its entirety
should be disallowed.
HENRY CHAUNCEY
Q). No. 3.
THE REPUBLIC OF CHILE.
The memorialist sues in his own right and for Henry S.
Prevost and Henry W. Alsop as sole surviving partners of
Alsop & Co., a firm or commercial partnership in 1876 and
prior thereto in Valparaiso, Chile. The firm was composed
of ten members, all American citizens, seven of whom, in-
cluding the claimants Chauncey and Prevost, were special
partners, and three general partners, including the claimant
Henry W. Alsop. All of the partners, except the claimants,
are dead. The partnership agreement is filed as an exhibit,
and the interest of each partner or his legal representatives
is set out.
The claim grew out of advances made by Alsop & Co., prior
to 1876, to one Pedro Lopez Gama, amounting to more than
a million dollars. In payment Gama assigned to “Alsop &
Co.” certain claims and rights which he acquired from Bo-
36
livia. Afterwards Alsop & Co. went into liquidation, and John
Wheelwright was appointed by the other partners as liquida-
tor. He, after long negotiations, succeeded in settling their
claims with Bolivia, and on December 26, 1876, an agree-
ment was made, based on two Supreme Decrees of the Gov-
ernment of Bolivia, by which that Republic acknowledged its
indebtedness to the firm of Alsop & Co. in the principal sum
of 835,000 Bolivian silver dollars, with yearly interest
thereon at the rate of 5 per cent. (not capitalizable) from the
date of said agreement. It was also agreed that said sum
and interest should be liquidated by trimonthly drafts which
Wheelwright was authorized to draw on the excess of Bo-
livia's share of the customs duties received in the Northern
Custom-House (Arica), after the date of the expiration of the
then existing customs treaty between Bolivia and Peru, over
and above the sum of 405,000 Bolivian dollars, which Peru.
then rendered to Bolivia, and such drafts were to be made
either in case the said customs treaty were thereafter re-
newed with Peru or the National Custom-House of Bolivia
were re-established. Said agreement also provided, as another
means of payment, that 40 per cent. of the net profit of all
the mining sets of silver belonging to the Bolivian Govern-
ment in the coast department should be applied to such pay-
ment except the “Flor del Desierto.” Fifty per cent. of this
last-named mine and 40 per cent. of another, to be selected
by Wheelwright, should be applied to the payment of interest
on said principal sum accruing prior to December, 1876, and
in case the proceeds of said mines did not pay it the said
preceding interest should be cancelled. Wheelwright was
allowed three years to select the mines which he might work
himself, or by companies to be organized by him, and the
contract was to continue twenty-five years, any surplus after
payment of the debt to be returned to Bolivia.
Public notice of the contract was given and Bolivia re-
peatedly acknowledged and affirmed the contract by subse-
quent decrees and orders. Wheelwright selected certain
37
mines and was working them, but before the three years ex-
pired Chile took possession of the territory in which the
mines subject to this contract were located, and has con-
tinued to occupy the same ever since and has required them
to be worked under Chilean laws. *
That before Alsop & Co. could realize anything from the
custom-house at Arica that port was occupied by the armed
forces of Chile and has ever since been in Chile's possession,
and that the proceeds of the custom-house have been appro-
priated by Chile in disregard of the rights of claimants.
That Wheelwright was compelled to look to the mining
sets for compensation, but owing to the change in the laws
passed by Chile and by the interference of Chilean citizens
and the decisions of the Chilean courts against him he could
recover nothing from them and his rights were disregarded
by Chile. -
The details of this interference and these decisions are
set up, but it is unnecessary to particularize here, except to
say that petition was made to Chile to recognize the right of
Alsop & Co., and the Minister of Justice refused to do so.
It was shown in the evidence that from 1880 to 1883 Chile
appropriated all of the custom-house receipts belonging to
Bolivia from the Arica Custom-House, and that from 1883
to 1892, by a pact of truce between Chile and Bolivia, Chile
accounted to Bolivia for 40 per cent of said receipts, which
was applied to the payment of Chilean creditors of Bolivia,
without regard to Alsop & Co.'s contract rights, and 35
per cent. was paid over to Bolivia each year, Chile re-
taining the other 25 per cent. for her own use. The amount
of the 35 per cent. paid to Bolivia in excess of $405,000 each
year was not sufficient to pay Alsop's principal debt, much
less the interest. The receipts from 1880 to 1883 appro-
priated by Chile, and the 25 per cent. retained after
1883, and the 40 per cent. appropriated to Chilean
creditors after that date, were sufficient, after deduct-
ing $405,000 each year, to pay Alsop & Co.'s debt sev-
38
eral times over, so that it was not necessary to look
to the mining sets, although the right thereto was fully ar-
gued by both counsel. The evidence also showed that Alsop
& Co. received from the two mines set apart to pay the
arrears of interest accruing before December, 1876, about
$134,743.28, which was not sufficient to pay the same ; that
Alsop & Co. expended in working other mines $106,105.19,
which returned them nothing on the principal debt.
The claimants in their memorial, as surviving partners,
claimed principal debt and interest at 5 per cent. from De-
cember 26, 1876, and arrears of interest of $160,700 and
$70,000, with interest on the respective sums from Decem-
ber 18, 1875, and December 18, 1876, at 6 per cent. in
Bolivian dollars. On hearing, this was modified and they
claimed for principal sum and interest 1,556,695.13 Boliv-
ian dollars, and for balance arrears of interest with interest
$106,176.07, and for losses on working mines with interest
of $117,405.39. In all, reduced to gold coin of the United
States at the value of the Bolivian dollar when received by
Chile, $1,435,815.64.
The case was briefed by the private counsel of claimants
and was argued in eastenso by the Agents for the two Gov-
ernments, and submitted to the Commission, but the Com-
mission did not have time to consider and decide the same ;
therefore it is not necessary to give the respective points, as
the case is undetermined.
Qj
W. S. SHRIGLEY
e No. 4.
THE REPUBLC OF CHILE.
The complainant, a native-born citizen of the United
States, living temporarily in Chile, complained that during
the civil war in Chile in 1891, on account of the danger from
the movement of the troops, he removed his family from his
residence and left it in charge of his servants, with a large
American flag at each end of it, showing his citizenship, and
39
that on the 14th of August, 1891, certain troops of the army
of Balmaceda's Government forcibly occupied the premises
and destroyed, despoiled, and took away property to the
value of $28,753, Chilean currency, exchange at 17d., and
damaged and destroyed the interior of his house and
grounds to the further sum of $3,580, Chilean currency, 17d.
exchange, for which he asks judgment.
The evidence showed that the claimant was a native-born
citizen of the United States; that he was the owner of
certain property on the Hill of Miramar, near Valparaiso :
that the house was furnished throughout and occupied by
himself and family; that on the night of the 23d of August,
1891, it was taken possession of and completely sacked by
the troops of the Balmaceda Government; that horses of
the regiment were quartered in his garden and park and de-
stroyed the greater part of the trees and plants and broke
down the fences; that the American flag at the time was
flying at either entrance ; that his property was in charge of
an employé and servants, who were put out by the troops on
taking up their quarters therein.
On the part of Chile testimony was produced of the
officers alleged to have been in possession of the property
denying the sacking or destruction or possession of the
houses at the times alleged. The preponderance of the testi-
mony was largely in favor of the claimant. It was shown
that the destruction was not during a battle; it was not
necessary for the defence of the country; that it was wanton
and inexcusable, and that the property was known to be
neutral property.
The Agent for the United States contended that while
citizens of foreign States residing within the arena of war
may have no right to demand compensation from either of
the belligerents for losses or injuries they sustain, that state-
ment is not to be considered as proclaiming immunity to a
belligerent for every outrage that may be perpetrated by
those in his service simply because they occurred during
40
the time and upon the theatre in which the hostilities were
prosecuted; that the damages in this case were inexcusable
and wanton and not necessary for the defence of the country,
and therefore Chile must pay. Citing Wharton's Digest,
sec. 223. pp. 579, 580, and 598; Wharton's Digest, sec. 225,
p. 599; ibid. sec. 225, p. 599; II Halleck's Int. Law, p. 37;
Willett v. Venezuela, Venezuelan Report, pp. 96–112 ; Jean
Jeanneaud v. The United States, Report of the French Claims
Commission, p. 132; Joseph Chourreau v. The United States,
French Claims Commission, pp. 134–146; Bertrand v. The
United States, French Claims Commission, p. 147; Means
v. The United States, French Claims Commission, p. 189.
On the other hand, the Agent for Chile contended that it
was necessary for plaintiff to show beyond a reasonable
doubt that he was in the possession of the property men-
tioned in his schedule, and that the same “was taken or de-
stroyed by the Chilean army, acting under the orders of
duly authorized officers, or that it was taken by the Chilean
army under such circumstances that the officers of the army
were bound in good faith to have prevented the pillage.”
He claimed that the testimony was not sufficient to show
these facts, and that many of the houses were injured and
some were destroyed by shells and shot thrown upon the
hill.
The Commission held :
“First. That neutral property taken for the use or service
of armies by officers or functionaries thereunto authorized
gives a right to the owner of the property to demand com-
pensation from the Government exercising such authority.
Second. That neutral property destroyed or taken by sol-
diers of a belligerent, with authorization, or in presence of
their officers or commanders, gives a right to compensation
whenever the fact can be proved that said officers or com-
manders had the means of preventing the outrage and did
not make the necessary efforts to prevent it. Third. Acts
of simple marauding or pillage practised by soldiers absent
from their regiments, and from the close vigilance of their
commanders, do not affect the responsibility of Governments.
41
Such acts are considered as common crimes, subject only to
ordinary penalties.”
In view of these principles and the evidence, they awarded
the claimant $5,086 in United States gold coin.
Q)
EUGENE L. DIDIER, Adm’r, et al.
. No. 5
THE REPUBLIC OF CHILE.
The memorialists are legal representatives of the members
of the firm of D’Arcy & Didier and Thomas Sheppard, of
Baltimore, Maryland, all of whom were citizens of the
United States. The interests of the heirs of these parties
are set forth in the memorial. The claim is based on two
contracts made in 1816 by D'Arcy & Didier and Sheppard
with General José M. Carrera. The substantial averments
are as follows: “That in the beginning of the year 1816
General José M. Carrera, President of the Republican Gov-
ernment of Chile and Commander-in-Chief of its forces,
came to the United States as the representative and agent
of said Government to secure arms and military supplies.
That said General Carrera had full authority from said Gov-
ernment to purchase said arms and supplies, and formal
powers from said Government constituting him its agent.
* * * That owing to the fact that the Republican or
Batriotic forces had been unsuccessful in the battle of
Bancagua, and had been forced to retire from Chile and
that country was then in possession of the Royalists, and
the Republican Government much discouraged and without
funds, Gen. Carrera was unable to accomplish his mission
until, after many interviews and much correspondence with
said firm of D'Arcy & Didier, he induced said firm, who
associated with themselves said Thomas Sheppard, to extend
credit to said Government of Chile and furnish certain arms
and supplies. That said Gen. Carrera exhibited to said
D’Arcy & Didier his written authority from said Govern-
42
ment by which he was given full power to enter into con-
tracts and pledge the credit of said Government. That
thereupon, on the 31st day of October, 1816, the said firm of
D’Arcy & Didier and the said Thomas Sheppard entered
into a contract with the said José M. Carrera, acting for him-
self and the Republican Government of Chile, by which said
D'Arcy & Didier and Sheppard agreed to ship on the brig
Savage or some other suitable vessel, and deliver to the
order of said Carrera, at some port in Chile in possession of
the Patriots, certain muskets, powder, cartouch boxes, sabres,
pistols, flints, lead, and saddles and bridles, for which said
Carrera, for himself and the Republican Government of Chile,
agreed to pay at rates fixed in said contract within twenty
days after the arrival of said vessel in the first port of Chile
in possession of the Patriots, * * * for the performance
of which contract said Carrera pledged his individual credit
in addition to that of his principal, the Republican Govern-
ment of Chile.” w
That in pursuance of said contract the said D'Arcy & Didier
shipped and fitted out said vessel, loaded thereon the arms
and supplies contracted to be sold, amounting to $146,719.44;
that said vessel arrived at Coquimbo, a port in Chile, and
tendered the cargo and made demand for the payment of the
contract price from the Government of Chile, which refused
to accept the same or to pay the price thereof; that the super-
cargo was compelled to sell the cargo to the Chilean Govern-
ment at a price fixed by itself, to wit, $76,638.40, which said
rate was made by duress, as a forced sale. Wherefore claim-
ants ask judgment for the difference between the contract
price and the amount received from said sale, or $69,399.14,
with interest at 6 per cent. from June 1, 1817.
That said parties made another contract with said Carrera,
acting for himself and the Republican Government of Chile,
by which they were to deliver the ship Clifton and its arma-
ment to said Carrera at some port in Chile in possession of
the Patriots for $80,000, and its cargo at specified rates, pay-
43
ment to be made in sixty days after the arrival in Chile—
(certain other conditions of the contract are set forth which
are unnecessary to specify;) that the price to be paid for the
ship and cargo was $155,211.58; that said ship and cargo
sailed, but was stopped at Buenos Ayres; but that on account
of the failure of said Government of Chile to comply with
its contract, and the rivalry between General O'Higgins, the
then Supreme Director of Chile, the voyage was not com-
pleted and the vessel and cargo were sold at a great loss,
and claimants ask for judgment for the difference between
the contract price and the amount realized at said sale, to
wit, $130,018.24, with interest from June 17, 1817. The de-
tails of the memorial as to the last vessel are not fully set
out here, as they are not material to the decision in the case.
The Agent for Chile interposed a general demurrer on the
ground, 1st, that on the 18th day of November, 1816, the
territory later known as the Republic of Chile was a Spanish
colony; that it had been such since the battle of Rancagua
in October, 1814, until February, 1817. Citing General
History of Chile, vol. 3, p. 19 (ed. 1868); Encyclopædias
Americana and Britannica, word “Chile;” State Papers, 1818–
1819; Report Theodorick Bland, pp. 794–795.
2d. That on February 12, 1817, the army formed on the other
side of the Andes won the battle of Chacabuco, and Chilean
independence was proclaimed 12th February, 1818. The
first Constitution was sanctioned April 5th of the same year.
Citing Jorge Huneus' work, vol. 1, p. 50. -
3d. That the independence of Chile was recognized in
January, 1822, by the United States, and the first Minister
appointed in 1823. Two years afterwards England recog-
nized the independence of Chile.
4th. As the authority under which this Commission is
acting is derived from a convention between the United
States and the Republic of Chile, and as the Republic of
Chile did not exist on the 31st of October and the 18th of
November, 1816, the Commission is without jurisdiction in
44
the premises. Citing letter from Gen. O'Higgins to James
Monroe, dated April 1, 1817 (British Foreign State Papers,
1818–1819, p. 807, No. 7). .
To this the Agent of the United States replied: 1st. That
the averments of the memorial are to be taken as true for
the purposes of the demurrer, and they show that the Re-
public of Chile did exist at the time these contracts were
made, and that Gen. Carrera was its President; that if said
Government did, not exist it is a matter of proof, which
cannot be disposed of on demurrer. 2d. That the facts
well pleaded in the memorial cannot be contradicted on
demurrer, as they are admitted for that purpose. 3d. That
the Commission cannot take judicial notice of facts different
from those sworn to in the memorial on demurrer. That all
the historical references show that a Government of the Re-
public of Chile had existed prior to 1816, and the legal pre-
sumption is that the present Republic of Chile is the suc-
cessor of that Government. That the question of what the
court may judicially notice as fact can only arise as a matter
of proof on the hearing. Citing Greenl. on Evidence, vol. 1
(15 ed.), § 5, p. 10; also citing § 4, p. 6, ibid., where the
author says, “ and the existence of such unacknowledged
Government or State may in like manner be proved, the rule
being that if a body of persons assemble together to protect
themselves and support their own independence, make laws,
and have courts of justice, this is evidence of their being a
State; ” also ibid., § 479, p. 627.
If this demurrer can raise this question it also raises the
question of whether the acknowledgment of the independ-
ence of Chile in 1822 by the United States does not relate
back to the beginning of the Carrera Government in 1811,
which involves the facts of the whole revolutionary history
of Chile, not now before the Commission. A memorandum
of the historical events of the Republic of Chile's early days
was presented showing that the revolution of 1811 estab-
lished a Junta, which elected Carrera Commander-in-chief.
45
On November 15, 1811, this Junta was overthrown, a new
one formed, and Carrera made President, with Martin and
O'Higgins his associates. This Junta established the Gov-
ernment in all its branches, and in 1812 promulgated the
first Constitution; a legislative assembly passed laws; a school
system was established; an army organized, and the Govern-
ment continued till driven out of the country in 1814.
The Patriots organized the “Army of the Andes,” which was
composed in part of the army that fought at Rancagua. See
McKenna's Ostracism of O'Higgins, Doc. 18; Ostracism of
the Carrera's, History of Chile by Amunātegui ; Journal of
Miss Graham.
The proclamation of independence begins, “The revolu-
tion of the 18th of September, 1810, was the first effort made
by Chile to fulfil the high destiny to which it was called,”
etc. A decree of September 30, 1820, amends a decree of
1813, for the free regulation of commerce. The laws subse-
quent to 1817 recognize the acts of the Government from
1811 to 1814, -
The case was fully argued by both Agents and the Assistant
Counsel for Chile. -
A majority of the Commission, Messrs. Claparède and Gana,
sustained the demurrer on the grounds:
1st. That it being judicially acknowledged that the recog-
nition of Chile by the United States took place in 1822; that
until that date Chile was de jure under Spanish domination
so far as concerned the United States; that it is only from
such period that legal international relations began between
the two countries signing the convention concluded in San-
tiago August 7, 1892; -
2d. That the two Governments in signing the convention
had not in view any claims arising out of the period prior
to the recognition of the Government of Chile by the United
States and before the establishment of legal international
relations between the two nations;
3d. That if such had been their intention it would have
been expressly indicated in the treaty ;
46
4th. That the contracts on which the claim is based were
signed several years before the recognition of the Republic
of Chile by the United States; therefore the demurrer was
sustained as the claim was not within its jurisdiction.
Commissioner Goode dissented on the grounds, 1st, that
the demurrer admits all the facts well pleaded. He then
sets out all the averments in the memorial and states that
the single question presented is whether or not the Republic
of Chile was in existence at the time the contracts were ex-
ecuted ; that the averments of the memorial show that such
Government did exist at that time and those allegations
must be accepted for all the purposes of the demurrer; that
it is altogether inconsistent to admit by the pleadings the
existence of Chile as a Government, and at the same time to
offer evidence to prove its non-existence; that the question
of the existence of the Republic of Chile in 1816 was at
least a debatable one. He then cited the report of The-
odorick Bland in South America, State Papers, 1818–1819, to
show that the “defeat of Rancagua closed what is called
the first epoch of the Patriot Government;” that the Patriot
army reformed in Buenos Ayres and regained Chile February
12, 1816 (-1817), and O'Higgins was made Supreme Director
of Chile ; that the proclamation of independence of Chile
begins, “The revolution of the 18th of September, 1810, was
the first effort Chile made towards accomplishing these high
destinies to which she was called by time and nature.” That
in a manifesto of O'Higgins, May 5, 1818, he said: “Chileans,
the 8th year of our revolution will be forever memorable.”
That among the items of expenditure of Chile in 1817 is
“6. Debts contracted by the State in 1814, * * * 12,720
dollars,” of which Mr. Bland says (page 791), “the 6th is
the amount of debts paid which were contracted in the first
epoch of the Patriot Government.” He also quoted from the
American Encyclopædia (p. 432), viz.: “In 1810 began the
revolution which resulted in its independence,” &c. That a
Junta was formed November 15, 1811, which exercised all
47
the functions of government; that it promulgated a consti-
tution in 1812, established a school system, organized an
army, enacted laws through its regular legislative assembly;
that after the battle of Rancagua, in 1814, the Patriots or-
ganized the “Army of the Andes,” which was formed in part
of the soldiers who fought at Rancagua, and thus organized
won the battle of Chacabuco, 12th February, 1817; that in
1818 independence was proclaimed, and in 1822 Chile was
acknowledged by the United States; that when a Govern-
ment is once recognized that recognition relates back to the
commencement of its existence; that if there was a republican.
Government in Chile in 1811 it is reasonable to presume
that the present Government is the legitimate successor.
He cited the revolutions in France involving not only a
change of rulers, but the whole structure of her governmental
system ; but that no Government had repudiated the debts of
its predecessor, quoting from a prominent jurist : “The
public debt of France lies embedded beneath six layers of
revolutions, and that portion which lies the lowest is paid as
faithfully as the contract that was made but yesterday.” He
then refers to the admission of the averments of the memorial
showing that Chile was a republic, Carrera its President, and
authorized to make the contracts binding on Chile, and the
making thereof by Carrera as President, and says the de-
murrer should be overruled.
Motion for rehearing was filed on the ground that the
point on which the decision of the Commission turned did
not rise on demurrer; that the question involved in said
decision was not argued before the Commission ; that the
decision was erroneous and contrary to international law;
that controlling authorities were overlooked by the Commis-
sion ; that the legal effect of the recognition by the United
States of the independence of Chile in 1822 related back to
the revolution in 1810; that the historical facts of which the
Commission holds it must take judicial knowledge on de-
murrer show that the present Government of Chile is the
48
the successor of that of 1810; that the language of the
treaty submitting “all claims, &c.,” includes claims arising
at any period of Chile's history unless expressly excepted ;
that the demurrer should have been overruled and the facts
of the case heard.
Briefs were filed by the private counsel of claimants and
the Agent of Chile, and the case was fully argued by the
Agent of the United States, the Agent of Chile and his Assist-
ant Counsel. The points raised by claimants on the motion
for rehearing were that the position assumed by the Com-
..mission, that no State can be held responsible for acts done
by its civil or military authorities to the citizens of another
State, which has not, prior to the commission of the acts,
formally recognized the offending State as an independent
nation, cannot be sustained ; that the provision of the Con-
vention that all claims on the part of corporations, com-
panies, and private individuals, &c., should be referred to
three Commissioners, with the single exception of those
held by persons in the service of the enemies of Chile
or voluntarily giving aid or comfort to the same, must
be held to include all claims, no matter of what date,
arising against the Government of Chile out of acts
committed against the persons or property of citizens of
the United States; that the opinion of the majority of the
Commission is so far-reaching that if the acts complained
of had been committed by the Chilean authorities in 1821,
long after the Orderly, peaceful, and successful establishment
of the Republic and the disappearance of Spanish claims to
its control, but a year prior to the recognition of the Republic
by the United States, such acts would not give rise to a claim
on the part of a citizen of the United States upon the Gov-
ernment of Chile which the Commission could consider;
that this position was supported by neither reason nor
authority; that the argument of the Commission that all
claims prior to the recognition must be excluded because
they are not specifically referred to is contrary to the uni-
49
*
versal maxim in the construction of statutes Eagressio uniws
est eacclusio alterius ; that the only exception from the
broad words “all claims ” are those preferred by persons
giving aid and comfort to her enemies, and it must be held
that the intention of the two Governments was to exclude
no other character of claim ; that the well-established doc-
trine of international law is that the recognition of a Gov-
ernment relates back to its legal recognition. Citing Williams
v. Bruffy, 96 U. S. 176–185, wherein Justice Field says:
“The other kind of de facto Governments to which the
doctrine cited relates is such as exists where a portion of the
inhabitants of a country have separated themselves from the
parent State and established an independent Government.
The validity of its acts, both against the parent State and its
citizens or subjects, depends entirely upon its ultimate suc-
cess. If it fail to establish itself permanently, all such acts
perish with it. If it succeed, its acts from the commencement
of its easistence are upheld as those of an independent nation.”
They also cited the United States v. Trumbull, 48 Fed.
Rep. 94, in reference to the recent revolution in Chile,
wherein the Court says:
“Having succeeded and become recognized, the acts of
that Government from the commencement of its existence
will be upheld as those of an independent nation.”
Also the United States v. Prioleau, 35 L. J. C. H. N. S. 7;
Rent's Commentaries. Vol. 1, p. 25; Phillimore's Int. Law,
vol. 1, p. 171; Wattel, book 2, chap. 12, sec. 191; Grotius,
book 2, chap. 9, sec. 8. -
Referring to the historical data, it was insisted that they
show that the Chilean Republic which issued the declara-
tion of independence of 1810 by its President and Com-
mander-in-Chief made the contracts in 1816 on which this
claim is based, and is identical with the Chilean Republic
which is a party to the Convention authorizing this Com-
mission; that September 18, 1810, is to-day celebrated in
50
Chile as independence day; that the Presidents of Chile are
inaugurated in Chile upon September 18th ; that Leon
Levy’s International Law, p. 72, announces that “Chile de-
clared her independence of Spain September 18, 1810.
The declaration of independence of January 1, 1818, refers
to the revolution of 1810 as the first effort made towards
accomplishing the high destinies,” &c.; that the manifesto
of O'Higgins, May 15, 1818, declared: “Chileans, the eighth
year of our revolution will be forever memorable ; ” that
Theodorick Bland's report of November 2, 1818, gives the
Government expenses of Chile for 1817: “6. Debts con-
tracted by the State in 1814, 12,700; ” that a statue has
been erected in Santiago to the memory of Carrera, its ded-
ication marked by public ceremonies, and on which is in-
scribed, “Saviour of Chilean Liberty;” that the Chilean
statutes of 1819 show in that year the amendment of laws
passed in 1811, which would seem to be conclusive of the
identity of the two Governments.
The Agent of the Republic of Chile claimed that the debts
contracted prior to the organization of the Government and
prior to its recognition by other countries are not debts and
liabilities for which the new Government becomes responsi-
ble, unless special provision is made therefor, citing the
history of the United States in making provision for the pay-
ment of the debts of the Confederation ; and reasserted that
the Republic of Chile for all international purposes dates.
from its recognition as a sovereignty by other nations, and,
therefore, the liability of Chile under the treaty is limited to
acts committed by its civil or military authorities since its
recognition by the United States. -
Mr. Claparède and Commissioner Gana overruled the mo-
tion for rehearing (Commissioner Goode dissenting), hold-
ing substantially that the Convention of August 7, 1892,
having been concluded between the United States and the
Republic of Chile to settle the claims that under certain con-
ditions the citizens of one country might present against the
51
&
Government of the other without determining the period in
which the acts giving birth to such claims occur, it is not pos-
sible to extend the period beyond the date in which, through a
formal declaration of the United States made in 1822, Chile
ceased to be, as far as the United States were concerned, a
colony of Spain in order to become from that date an inde-
pendent State; that were this Commission to extend its juris-
diction to a period prior to the time at which Chile was estab-
lished as an independent State it would perforce assume an
entirely different judicial position, since at that date Chile
was not an international entity but was de jure a colony of
another independent State; that the opinions of authors
cited by claimants have no application to the case as they
tend to establish the liabilities of a Government respecting
the acts of its predecessors as independent States, while
what this Commission has established is that the Convention
of August 7, 1892, between the United States and the Re-
public of Chile must not be interpreted in a sense that
would extend it beyond the date of the recognition of Chile
as an independent State capable of contracting rights and
obligations in conformity with international law ; that it is
not a principle accepted by the best opinions of authors of
international law, as is alleged, that the recognition of a
new State relates back to a period prior to such recognition.
Qj
JoHN L. THORNDIKE
No. 6.
THE REPUBLIC OF CHILE.
The memorialist, a native-born citizen of the United
States, claims that in March, 1880, he was engaged as a sub-
contractor in the construction of the Mollendo, Arequipa,
Puno & Cuzco Railways in Chile, and was the owner of cer-
tain property and materials, consisting of foundry, houses,
machinery, tools, and other materials on hand for the use
and construction of said railroads; that he was in posses-
sion thereof on the 5th of April, 1879, when Chile declared
52
war against Peru; that in March, 1880, Mollendo was taken
possession of and blockaded, and between the 9th and 13th
days of said month the property and materials of memorial-
ist were destroyed and damaged by Chilean troops; that
Mollendo was not fortified nor defended ; no resistance was
made, and that the destruction of the property were unjustifi-
able and unwarrantable acts on the part of said troops, and
not acts of military necessity, nor in accordance with the prac-
tices of legitimate warfare; that the memorialist duly pro-
tested before the British Vice-Consul at Mollendo on the
31st of March, 1880; that the actual losses and damages to
memorialist amounted to 21,950 pounds 7 shillings, which,
with interest, amounts to 39,169 pounds 8 pence. Evidence
was submitted on the part of claimant in the shape of affi-
davits, which were regularly filed in the Department of State
of the United States, and by it submitted to the Commission.
This evidence showed that claimant was a native-born citi-
zen of the United States, and that he is entitled to its pro-
tection. The other averments of the memorialist were like-
wise proved by these affidavits and documents.
Briefs were filed on the part of private counsel for claimant
and the Agent for the United States and the Agent for Chile,
and the case was thoroughly argued by the Agents of the
two Governments.
On behalf of claimant it was claimed that the devasta-
tion took place after the troops had been landed,
without resistance, and was not a necessary concomitant as
a military action, such as is recognized by the practices of
warfare. Citing Hall's Int. Law, secs. 184, 185, 186, and notes.
As to what are wanton acts of soldiers in the destruction
of property, cited Jeanneaud v. The United States, p. 132,
French and American Claims Commission; Chourreau v.
The United States, ibid. 134; Bertrand oy. The United
States, ibid. 147; Means v. The United States, ibid. 189;
Willett v. Venezuela, Venezuelan Report, pp. 96–112 ; Whar-
ton's Int. Digest, sec. 223, pp. 597-980, sec. 225, pp. 598–
53
599; Halleck's Int. Law, p. 37; also citing 2d Wharton
Int. Digest, sec. 228, p. 608.
The Agent for Chile claimed that the evidence offered was
not “what the rules designated as legal and sufficient evi-
dence;” that it did not have any value upon which to base
any kind of a claim whatever; that the claimant has not
proven that he is an American citizen ; that ownership of
real estate should be proven by deed showing conveyance;
that there is no evidence that claimant owned the property
destroyed. He also cited a letter, dated April 5, 1887, from
claimant to the Director-General of the Government, in
which he says: “First, because I only acquired the right of
Meiggs in September, 1885, the delivery having been effected
fifteen years before, when I had no interest or responsibil-
ity;” also a decree of the Government of Peru, May 14, 1886,
approving a transfer to Thorndike by the Executive Board
of the Meiggs contracts, found in “Anales de las Obras
Públicas for 1886,” p. 221 and p. 252. He also cited, on
the point of the admission of the affidavits, the brief offered
by him in the case of Elizabeth Murphy v. the Republic of
Chile. (The question of the admissibility of such testimony
was more fully argued in the Murphy case, to which refer-
ence will be hereinafter made.)
The majority of the Commission, Judge Goode dissenting,
decided, “after having examined the papers and documents
presented by the claimant, that they lack sufficient legal
weight to warrant decision against respondent. It appears,
in fact, that none of the testimony presented by the claim-
ant, of itself vague and undetermined, was taken after notice
to the Agent of the respondent, thus depriving him of the
legitimate right of witnessing the administration of the oath
and the declaration of the witnesses, and at the same time
cross-examine them. It does not appear, either, that the
memorialist has made any efforts to produce his testimony
in accordance with the rules of procedure established by
this Commission ; nor has he produced any testimony of the
54
Peruvian authorities in Mollendo, who certainly would have
been willing to establish by public document or by certifi-
cate the facts complained of and the damage the complain-
ant might have suffered.”
Note.—In view of the decision in the Murphy case which
held that affidavits coming from the State Department under
the treaty and rules were admissible, the judgment in this
case must have gone on the ground that the evidence was
insufficient to establish the claim. -
Commissioner Goode did not write a dissenting opinion.
NoFTH AND SOUTH AMERICAN CON- )
STRUCTION COMPANY |
v - N O. 7.
THE REPUBLIC OF CHILE.
The claimant is a Kentucky corporation organized for
the purpose of constructing private and public works, &c.
Its principal place of business is in Louisville, with the
right to carry on a portion of its business in New York,
Chile and in other Republics of Central and South Amer-
ica. In October, 1888, the company entered into a con-
tract with the Government of Chile to construct and equip
certain lines of railroad, for which said Government agreed
to pay said company a sum in excess of $17,000,000. The
company executed a bond of $1,000,000 to secure the
performance of said contract. The said contract was sanc-
tioned and became a law of the Republic of Chile by act of
Congress passed by both houses and signed by the President
of said Republic ; that, in pursuance of said contract, claim-
ant procured to be made to the Government of Chile a bond
of the National Bank of Chile for $1,000,000 for the full and
due performance of said contract. Said company proposed
to construct and equip said railroad in accordance with the
contract, made subcontracts, purchased material in the
United States and Europe for the construction, including
bridges, rails, engines, rolling-stock, &c., to the amount of
55
several million dollars, and purchased a large plant for con-
struction, consisting of machinery, implements, &c., and
lands for right of way; that on the 31st of May, 1890, the
Government of said Republic, in violation of the obligations
of said contract and law, without just cause and by usurpa-
tion of power arbitrarily and without regard to the law or
the rights of the company, seized and took possession of all
the works of said company in said Republic and of all the
materials, supplies, &c., belonging to said company, and has
continued in the possession thereof ever since, and has pro-
ceeded to the construction of said lines and suspended the
construction of other parts and has excluded the company,
its agents and engineers, therefrom. In addition the said
Government arbitrarily and illegally suspended and abolished
the tribunal of arbitration provided and established under said
contract for the determination of differences arising under
said contract between said Government and said company,
and the said Government has alleged and pretended to de-
termine, without notice to said company and without hearing
the same, that said company is non-existent, and on the
ground of said non-existence has denied the company all
rights and remedies under said contract ; that the seizure
and possession of said lines by the Government and the
abrogation of said tribunal have cost the company the
loss of the value of all its rights and remedies under
said contract, including the right to construct the same, to
receive compensation therefor, and to acquire the profits
therefrom and the remedies available by the tribunal estab-
lished by said law to determine the rights and duties of said
Government and said company, and it has involved the
company in alleged liabilities to subcontractors, who were
forced to discontinue their work by reason of said seizure
and denied all rights and remedies, including the fact of its
actual existence.
The memorial further alleges that, under the 14th and 15th
articles of the contract and law, deductions were to be made
56
from each payment due and certain percentages of the sup-
plies, rolling-stock, &c., estimated monthly, and that said
deductions were to be invested in bonds issued by Chile,
which upon the completion of certain portions of said lines
would be returned to the company ; that at the time of said
seizure bonds had been purchased and wholly paid for by said
deductions to the amount of 57,254 pounds 3 shillings and
4 pence, which were the sole property of said company and
which said Government in March, 1891, without notice to
the said company or without its consent, and without right,
sold and appropriated to its own use; that the company ex-
pended in acquiring said plant for construction, which was
wrongfully seized by said Government, 79,092 pounds 10
shillings 10 pence, which is now held by said Government
and for which it refuses to make compensation ; that at the
time of said unlawful seizure large sums were due said com-
pany by said Government on account of work actually done,
which the Government has refused to measure and pay for,
aggregating the sum of 36,524 pounds 11 shillings and 8
pence. -
In addition the company claims that it has been deprived,
by the exercise of arbitrary power, of the profits which were
the inducement to make such contract and to incur such ex-
penditures of money, and that such profits amount to 25 per
cent. of the entire contract price, or 885,500 pounds; that the
claimant has never received any sum of money on account
of such losses or damages and has never presented to any
tribunal of the United States or Chile this claim, for the
reason that the functions of the tribunal of arbitration which
was duly established and constituted in said contract were
suspended by the Government and the tribunal declared
without power, and the company declared non-existent by
the Fiscal of the most excellent Supreme Court of Justice of
said Republic. •
The claimant asks judgment for 1,303,334 pounds 5 shil-
lings and 3 pence.
#7
Attached to said memorial as an exhibit is a copy of
the contract and general conditions for the construction of
railways in project, certain provisions of which will be
noticed hereafter.
The Republic of Chile filed a general demurrer to this
memorial on the ground, first, that article 18 of the second
minor division of the “general conditions " reads thus:
“A contractor or contractors will be considered for the ends
of the contract as Chilean citizens; in consequence they re-
nounce the protection which they might ask of their respec-
tive Governments, or which these might officiously lend them
in support of their pretensions; ”
that by this provision of the contract the claimant abandoned
and disavowed its rights of citizenship in the United States
and had expatriated itself; citing Revised Statutes, § 1999;
that said contract being promulgated a law of Chile, for
the purposes of the contract the corporation was endowed
with the rights of citizenship in the Republic of Chile ; that
a citizen of one country resident in another may by his acts
limit the duty and power of the country to which he owes
allegiance to afford him protection, citing the case of Peter
Cushman Jones, Wharton's Int. Digest, par. 177. Further,
that if the tribunal for which provision was made in article
20 of the contract has been abolished, it does not appear
that the company has made any attempt to have it re-
established, and until every means of redress have been
employed it cannot be said in case of contract that the
citizen has suffered injustice, for it does not appear that the
tribunals of the country would not have secured him in all
his rights; that it does not appear that the company has
• made any attempt to obtain an adjudication of its rights
according to the laws of Chile; citing Wharton's Int. Dig.,
§ 241.
In reply to the demurrer and brief of the Agent of Chile,
the Agent of the United States filed a brief, as also did the
private counsel for claimant. The averments of the memorial
58
were recapitulated and certain articles of the contract and
general conditions were quoted as follows:
Article 20: “The difficulties or disagreements of every
nature which may arise in the interpretation or execution of
this contract will be decided summarily and without appeal
by three arbitrating arbitrators named, one by the Ministry
of Industry and Public Works, another by the Supreme
Court of Justice, and the third by the contractor.”
Article 18, General Conditions: “A contractor or con-
tractors will be considered for the ends of the contract as
Chilean citizens; in consequence they renounce the protec-
tion which they might ask of their respective Governments,
or which these might officiously lend them in support of
their pretensions.” -
Article 48, General Conditions: “Any difficulty or dispute
which may occur between any of the resident State engineers
and any other engineer appointed as representative of the
contractor as to the construction of any work, quality of
material, and in general in the practical execution of the
contract will be decided by the engineer or engineers the
Government may name, with appeal to the Ministry of Indus-
try and Public Works, who will decide finally.”
Article 49 : “The difficulties or disputes of any nature
which may arise in the interpretation and extension (the
Spanish word means eacecution) of the contract will be de-
cided summarily and without other appeal by the arbitrating
arbitrators named, one by the Ministry of Industry and
Public Works, another by the Supreme Court of Justice, and
the third by the contractor.” -
The United States made the following points in reply to
the demurrer : - -
First. The demurrer is a general one and admits for the
purpose of the demurrer every fact well pleaded in the
memorial, and if the petition presents prima facie case
within the jurisdiction of the Commission, the demurrer
must be overruled ; citing Bacon's Abridgment, vol. 7, p.
669; Stephen on Pleading, p. 159; United States v. Ames,
99th United States, pp. 35 and 45. -
Second. That the Republic of Chile ea industria by the
59
contract and law excluded any jurisdiction of its courts or
any right to appeal thereto in matters arising out of “the
interpretation and execution of the contract;” that the legal
effect of the contract was to establish a special tribunal or
tribunals, from which there should be no appeal, to determine
matters that might arise as to the building of the road or
execution of the contract, and that for these purposes the
contractor should be considered as a Chilean citizen ; that
the preliminary cablegram, contract, and law speak of Chilean
jurisdiction to determine matters arising on the contract, and
established special tribunals therefor, from which there was
no appeal to the ordinary courts of Chile.
Third. That as these provisions were in derogation of
common right they must be strictly construed ; that article
18, when it says “for the purposes of the contract,” means
what article 20 means when it says “difficulties or disagree.
ments of every nature which may arise in the interpretation
or execution of this contract,” and what article 48 means
when it says “in the practical execution of the contract will
be decided by the Government engineers, with appeal to the
Ministry of Industry and Public Works, who will decide
finally ;” that the fair construction of these provisions means
that all matters arising out of the contract should be decided
by the Board of Arbitrators without appeal, and that all
questions of engineering work should be decided finally by
the Ministry of Public Works; that as to these matters in
these tribunals the claimant may be considered to have stip-
ulated that it would waive the diplomatic protection or in-
tervention of its Government, but it neither waived its rights
to protection from its own Government, if the necessity should
arise, nor renounced its citizenship. -
Fourth. That its rights as a citizen of the United States,
except in so far as they might be determined by the tribunals
established by the contract, are intact ; that a corporation
cannot expatriate itself; it is a creature of the law and in
the very nature of things cannot sever the relation which
60
it bears to its creator; that the Peter Cushman Jones case,
(Wharton's Digest, 177) is against the demurrer. In that
case the American citizen in order to become an owner of a
vessel took an oath in the following form :
“The undersigned, a native of the United States of America,
being duly sworn, upon his oath declares that he will support
the Constitution and laws of the Hawaiian Islands and bear
true allegiance to his Majesty Kamehameha the Fourth.
Secretary Frelinghuysen says:
“In the oath taken by Mr. Jones there is no such express
renunciation of his American citizenship, nor do the cir-
cumstances manifest any intention on his part to expatriate
himself. It may, however, at some future time become a
question of judicial investigation in his case.”
He then quotes from the Attorney-General's Opinions to
the effect: •
“To constitute expatriation there must be an actual re-
moval, followed by a foreign residence accompanied by re-
nunciation of pre-existing citizenship ’’ (8th United States
189).
The Secretary further says:
“In the absence of direct determination * * * you
are authorized to extend to him such protection as may be
properly due to him as a citizen of the United States residing
in and having acquired a commercial domicile in a foreign
State. This protection must of course be limited and quali-
fied by the liabilities and obligations incident to such com-
mercial domicile.” Wharton's Digest, vol. 2, sec. 177, p. 373.
Sixth. That the oath of allegiance taken by Jones was a
stronger renunciation of his rights than the agreement of the
claimant in this case to submit to the jurisdiction of the
Chilean courts named in the contract.
Seventh. That the fact that this contract became a statute
of Chile does not in any way affect the claimant's relations
to the United States. Quoting from Secretary Bayard, Whar-
61
ton's Digest, sec. 171, p. 320, where he says the United States
have asserted—
“that no municipal statute of any country can overthrow the
reciprocal relations of a foreigner with his own country or
impair the obligation of the latter to intervene for his pro-
tection in case of wrong or denial of justice.”
Also from Secretary Frelinghuysen, Wharton's Digest, sec.
172a, p. 230, who says:
“We hold under the general principles of international
law that the right of an American citizen to claim the pro-
tection of his own Government while in a foreign land, and
the duty of this Government to exercise such protection are
reciprocal, and are inherent in the allegiance of the citizen
under the Constitution of his own land, and inasmuch as this
reciprocal right on the part of the citizen and duty on the
part of his Government is not created by the laws of any
foreign country, it cannot on the other hand be denied by
the municipal law of the foreign State.”
Also, to the same effect, the case of Howard C. Walker,
Wharton's Digest, p. 333, also p. 336, Secretary Bayard,
May 26, 1885, to Mr. Morgan, wherein he says:
“By the terms of railroad grants in Mexico, it is believed
that officers and employés on the road within Mexican terri-
tory are declared amenable to the law as Mexicans and
from pleading rights of alien protection and usage, even if
matriculated. Their taking such service in Mexico is
there deemed to be a contract, a condition of which is the
surrender by them of the right to claim the protection of
their own Government. I am not prepared to admit that such
a waiver annuls the relation of the citizen to his own Govern-
ment, and I certainly cannot think that it extinguishes the
obligations of this Government to protect its citizens in
Mexico in the event of a denial of justice. Giving the con-
tract its fullest scope, it can certainly mean no more than
that the person so bound was admitted to be entitled to jus-
tice in lieu of the broader claim to international justice, and
in case of the denial of justice the obligation of this Govern-
ment to protect them remains unimpaired.”
62
Also Mr. Seward to Mr. Lincoln, September 15, 1879,
says:
“A stipulation in the contract to be bound by the laws of
the country where the money lent is to be employed does
not operate where justice is denied in such country, though
to make out a claim in such country such denial of justice.
must be definitely shown.” - -
Eighth. That the basis of this proceeding is the arbitrary usur-
pation of power by Chile ; the wrongful and illegal taking pos-
session without notice to said company of their property; a
practical confiscation of all the property and rights of the
company within the Republic; a refusal to allow the claim-
ant to be heard; the illegal and arbitrary abolition of the tri-
bunal of arbitration, and a formal decree without notice and
without hearing that such company is without easistence. Fur-
ther, that it took bonds belonging to said claimant, sold them
without notice to the claimant and without right, and appro-
priated to the use of said Government the proceeds thereof;
that the complaint is based on an absolute and complete de-
nial of any right to a hearing by the claimant in the special
tribunals ºnentioned in the contract ; that these avermvents are
admitted to be true for the purposes of demurrer.
Ninth. That the courts of Chile, by this contract and law,
were ousted of any jurisdiction in the premises; that the
decree that the company was non-existent would prevent it
from going into any court in Chile, and it would be useless
for a claimant to appeal to the Government which had so
manifestly disregarded common justice, its own laws, and
the rights of claimant, if the facts stated are true.
Tenth. That the language of the Convention under which
this Commission sits is broad enough to cover this claim ;
it is “all claims on the part of corporations, companies, or
private individuals, citizens of the United States, upon the
Government of Chile, arising out of acts committed,” &c.; that
while it is not usual for our Government to interfere except
by its good offices with the prosecution of claims founded
*
63
on contracts with foreign Governments (Wharton's Digest,
sec. 231, p. 656), yet this rule does not apply where claims
originated in cases of manifest injustice to citizens needing
its aid. Wharton's Digest, sec. 231, p. 657. The excep-
tion to this rule is well stated by Secretary Forsyth on Feb-
ruary 12, 1837, when he says:
“The exception to this rule, however, is that where pal-
pable injustice, that is to say, such as would be obvious to
all the world, is committed by that authority towards a for-
eigner for alleged infractions of municipal law, of treaties or
the law of nations, the Government of the country has a
clear right to hold the country whose authorities have been
guilty therefor.” Wharton's Digest, sec. 230, p. 612.
Also in a letter from Secretary Cass, July 25, 1858, hold-
ing :
“What the United States demand is that in all cases
where their citizens have entered into contracts with the
proper Nicaraguan authorities, and questions have arisen or
shall arise respecting the fidelity of their execution, no dec-
laration of forfeiture, either past or to come, shall possess
any binding force unless pronounced in conformity with the
provisions of the contract, if there be any. * * * The
Government will consider it warranted * * * in inter-
posing such means as it may think justifiable in behalf of its
citizens who may have been or who may be injured by such
unjust assumption of power.” Wharton's Digest, sec. 232,
p. 661. -
Also letter of Secretary Cass, May 3, 1860; letter from
Mr. Evarts to Gibbs, October 31, 1877, saying:
“When a Government does not hold itself amenable to
judicial suit by foreign claimants on contracts made by it,
this may be held to form an exception to the general rule as
to contracts.” Wharton's Digest, pp. 662–664.
Also from Mr. Bayard (Wharton's Digest, vol. 3, p. 974),
in which he says:
“When he was precluded from so doing by the adverse
proceedings instituted against him by the Mexican authori-
64
ties, by which he was prevented from making out his case,
we must hold that justice was not only denied him, but de-
nied in violation of said practices of international law. It
then became the duty of this department to intervene in his
behalf and press his claim on Mexico as a debt which Mex-
ico is bound to pay.” .
Eleventh. That this memorial says that the claimant's
property was unlawfully seized; that the only court to which it
could appeal was blotted out of existence, and the corpora-
tion itself declared non-existent. It presents a most flagrant
wrong and disregard to the right of American citizens; and
that nothing in the contract or law of Chile can prevent a
hearing on the merits, and the demurrer should be over-
ruled. ... "
In the brief of private counsel these points were more
fully elaborated, but it is not necessary to quote further.
In reply, the Agent of Chile reasserted the points made
by him in chief and cited Title 11 of the Code of the Courts
of Justice of Chile, Art. 189, to show that parties could re-
nounce rights of appeal or submit them to arbitration ; also
Article 1545 of the Chilean Civil Code, and Articles 257 and
249 Code of Tribunals, and Article 1489 of the Civil Code,
and reiterated that the only remedy that the claimant had
was in the courts of Chile. .
The President of the Commission and Commissioner Goode
overruled the demurrer (Commissioner Gana dissenting),
saying: - -
“It is a well-established rule in the construction of a
contract that all of its provisions shall be taken together
and such interpretation given to each provision as will make
it consistent with the whole * * * * (citing articles 18,
48, 49, and 20 of the contract and general conditions). “We
are of the opinion that these articles, when construed to-
gether, mean the same thing. They mean that all questions
arising out of the contract itself, such as the proper con-
struction to be placed on any of its provisions, the amount
of payment due, the annihilation of the contract in the case
65
provided for by the contract itself, shall be decided summarily
and without appeal by the tribunal of arbitrators, and that
any dispute as to the practical execution of the contract, such
as the proper execution of any particular work, the selection
of the material, shall be decided by the engineers named by
the Government of Chile, with the right of appeal to the Min-
istry of Industry and Public Works. In regard to all these
purposes of the contract the contractor agrees to be consid-
ered as a Chilean citizen and to be treated in all respects as
a Chilean citizen who may enter into a similar contract for
similar purposes. To this extent only has the claimant
agreed to renounce the protection as a citizen of the United
States it had a right to demand from its own Government ;
that by the suppression of the Tribunal of Arbitration by
the Chilean Government the memorialist cannot be further
considered bound by the corresponding obligation concern-
ing jurisdiction according to which it renounced the protec-
tion of its Government; that by the suppression of the Tri-
bunal of Arbitration the memorialist has recovered his en-
tire right to invoke or accept the mediation or protection of
the Government of the United States; that the claimant was
not bound after the suppression of that Tribunal of Arbitra-
tion to resort to the aid of the regular courts of Chile ; that
as the first article of the Convention at Santiago of August
7, 1892, provides that all claims on the part of corporations,
companies, or private individuals, citizens of the United
States, upon the Government of Chile arising out of acts
committed against the persons or property of citizens of the
United States, &c., shall be referred to this Commission ;
that the Convention substituted this Commission for the
Chilean courts in cases of the aforesaid character in which
an action is founded upon the wrong and injuries com-
plained of; that the memorialist has neither relinquished
nor lost his qualities of American citizenship ; that a wrong
has been done by the suppression of the Court of Arbitra-
tion and taking possession of the property and bonds of the
66
complainant, &c. The demurrer was therefore overruled
and the respondent Government required to answer.
The dissent of Commissioner Gana was placed on the
ground that the claim of the North and South American
Construction Company is without the sphere of action of
this Commission ; that it is a recognized principle of public
and private law that persons signing a contract submit them-
selves for the purposes of such contract to the jurisdiction
of the country wherein the same is made and is to be ex-
ecuted (citing Wharton's Int. Daw, sec. 78; Story's Conflict
of Laws, p. 28, chap. 2, and Dalloz, Jurisprudence General,
1849; Secretary Fish, June 27, 1870); that claims based on
contracts are not the subject of diplomatic intervention be-
tween two Governments, nor can they serve as a basis for the
official action of the Government to which the damaged cit-
izen belongs against the Government with which said citizen
made the contract ; that the claim does not fall within the
official support of the Government of the United States,
and if the claimant has any cause of complaint the correct
and proper course is that offered by the legislative and judi-
cial authorities of the country with whose Government it
contracted (citing Mr. Fish in 1875 to the Minister to Brazil;
Mr. Evarts to Mr. Thompson, September 12, 1878; Mr.
Blaine to Mr. Lincoln, 27th March, 1881; Mr. Frelinghuysen
in 1884; Mr. Bayard, June 24, 1885; Mr. Bayard, 25th Janu-
ary, 1886), all of which referred to claims on contracts with
Governments; that the claimant was bound by the provisions
of the contract and law under which it undertook to build
the railroads and thereby submitted itself to the jurisdiction of
Chile ; that for all purposes of the contract the company
was not within the jurisdiction of the United States, and,
consequently, is not within the jurisdiction of the Commis-
sion ; that if Chile violated the contract by abolishing the
special tribunal created by the terms of the contract, the
claimant would only have the right of a Chilean citizen to
seek justice before the authorities of Chile. For these and
67
other reasons Commissioner Gana thought the demurrer
should be sustained.
On the 2d of February, 1894, the Agent for Chile filed
certain documents and a motion to dismiss the case, for the
reason that the claimant, on the 12th of August, 1889, trans-
ferred its contract to one Julio Bernstein, with all rights
and interests of said company in and under said contract ;
that on the 14th day of August, 1893, Chile approved said
transfer. The Agent for the United States moved to strike
this motion from the files, as it presented no question of juris-
diction, but simply a matter of defence. This motion was
argued by the respective Agents and the Assistant Counsel for
Chile, and at the request of the Commission was again argued
February 6, 1894, when a majority of the Commission
(Mr. Gana dissenting) sustained the motion to strike the
motion to dismiss from the files. - -
Subsequently testimony was taken on behalf of the claim-
ant and the respondent Government, and the United States
closed its case on the 15th day of January, 1894, but the
Government of Chile did not close its case in time to submit
it to the Commission ; consequently there was no decision
therein. -
KATE E. LEACH et al. \ -
Q). > No. 8.
THE REPUBLIC OF CHILE. Ş
The case was submitted on the part of the United States,
but not by Chile, and was not considered by the Commis-
sion.
GILBERT BENNET BORDEN
Q). No. 9.
THE REPUBLIC OF CHILE.
Claimant, a native-born citizen of the United States, sailed
on a whaling voyage as master of the bark Hope On from
New Bedford, of which vessel he owned seven-eighths.
68
Said bark was a duly registered vessel of the United States
and fully equipped for said whaling voyage, manned by a
crew of 21 persons all told, and on the 16th of November,
1882, he shipped as an able seaman a native of Chile,
one Alcedo, who afterwards became reckless and mutinous,
refused to obey orders, assailed the members of the crew
with a knife and threatened the mate, for which he was
ironed and confined for several days. This was repeated
several times until it was evident that Alcedo would not
behave himself, when, on the 14th of January, 1883, being
off the island of Juan Fernandez, the sailor was asked if he
desired to be landed. He said he did. Thereupon claim-
ant Ordered the mate to take him ashore and land him,
which was done, landing him at a distance of about two
miles from the settlement, with a path leading directly
to said settlement, which was pointed out to him, and
also leaving him food sufficient to maintain him until he
could reach the settlement; that the vessel stopped at Tal-
cahuano on the 27th of March, 1883, for the purpose of re-
fitting and proceeding upon her voyage to the Arctic Ocean.
On the 9th of April, the vessel being nearly ready for sea, he
was notified that his vessel would not be allowed to leave
the port nor to be moved. On the 13th of April, 1883, the
Minister of Marine of Chile ordered the bark Hope
On detained until further orders, and on the 16th
of April claimant was arrested in Talcahuano, taken
to the jail and confined for four or more hours,
taken before the judge at Concepción, gave bail and
returned to Talcahuano for ten days, when he was ordered
to appear at Concepción. No complaint was ever exhibited
to him, nor was he informed of the cause of his arrest. He
went to Concepción, was not permitted to enter the court-
house, and was informed that neither he nor his sureties
would be allowed to be present at the hearing. At his
instance, on the 15th of May, an order for the release of the
vessel was given, which was countermanded, but on the 21st
69
of May the vessel was released and sailed, the arrest of
claimant requiring him to ship a master in his place, who
proved incompetent, and after an unsuccessful cruise, in the
fall of 1883, he discharged his crew and sold the bark and
outfits for what he could obtain at a large loss. He re-
mained at Talcahuano until the 27th of June, 1883, awaiting
notification of his trial, but received none. Whereupon
he returned home, to New Bedford, arriving there August
23, 1883, and from that time he in no way received any
notice of any action by the Chilean authorities in respect to
the charge made against him ; but he is informed that the
proceedings were discontinued by the Chilean Government
on the opinion of the Attorney-General that he had com-
mitted no crime within the jurisdiction of the Chilean law,
and that his arrest and the seizure of his vessel were abso-
lutely illegal ; that after he returned home he was informed
that the judge before whom the case was pending had made
a proposition to his sureties that if the claimant would
release the Chilean Government from claims on account of
his arrest and the seizure of his vessel, the proceedings
would be discontinued; to which proposition he declined to
accede. He therefore claims for personal damages on ac-
count of arrest, for his expenses, and for damages for the
detention of his vessel, in all $20,130.69.
The evidence in the case shows that the vessel was de-
tained from the 9th of April until the 21st of May; that no
proceeding of any kind was instituted against the vessel;
that the cause of the arrest of the claimant was for a crime
committed on the high seas, for barbarously maltreating the
Chilean sailor and for casting him ashore on an unin-
habited part of the island of Juan Fernandez. There was
no complaint against him, nor did the sailor appear as a
complainant. The prosecution seems to have been instituted
by the captain of the port of Antofogasta on the hearsay
story of the lessee of the island of Juan Fernandez, who re-
ceived the same from the sailor. The evidence as to the
70
treatment of the sailor and his being landed on the island of
Juan Fernandez was preserved in a copy of the proceedings
against the claimant in the Chilean courts.
The claimant contradicted positively in his deposition
before the Commission all of the charges, claiming that he
had simply confined the mutinous sailor for the protection
of the lives of the crew and the safety of the vessel, and
that he landed him on the island of Juan Fernandez with
his consent and within two miles of a settlement of easy
8,OC62SS.
The record shows that the District Attorney of Chile gave
as his opinion to the court that it had no jurisdiction of the
crime charged against Borden, and that there was no crime
against Chilean law committed by him. The case seems to
have been appealed to the Supreme Court of Chile, which
held that the court at Concepción had no jurisdiction of the
case, and remanded it to the court at Valparaiso for further
proceedings, where the case rested for three years, until a
demand by the United States Government for information
in regard to it was made, when the papers were found among
the private papers of the judge, never having been docketed.
Every effort was then made by the Chilean Government to
perfect the proceedings against the claimant, without success;
the district attorney stated to the court that his honor
absolutely lacked data to establish the existence of any offence.
It is not necessary, however, to further recite the evidence
as to the personal arrest, as the Commission disregarded
that claim. - *
The evidence as to damages for the detention of the ship
was figured at $250 per day: wages, $50; provisions, $10; in-
terest and insurance, $6.66; making $66.66 of the cost, and
the balance for loss of use of the ship. By detention in
port forty-two days she lost just so much time on the cruis-
ing ground. There was no evidence of any kind offered by
Chile to refute the testimony of claimant as to damages.
The case was briefed by private counsel for claimant and
71
by the Agent of Chile, and fully argued by the Agent of the
United States and the Agent of Chile and his Assistant
Counsel.
It was contended on the part of the United States that as
there was no complainant and no complaint to serve as the
basis for the prosecution, and also no crime against Chilean
law alleged, that the proceedings were void; that maltreating
a sailor on board a United States vessel by the captain, on
the high seas, or within the territorial jurisdiction of Chile,
is not an offence against the law of Chile nor justiciable in
the Chilean courts. (See Field's International Code, p. 433;
Rent's Commentaries, p. 204; Pelletier's case (against Hayti),
p. 102; United States against Palmer, 3d Wheaton, 610;
Opinions of the Attorney-General of the United States, vol.
8, p. 79.) -
A crime committed on board a foreign merchant vessel, in
which members of the ship's crew are alone concerned, is
not within the jurisdiction of the local courts unless the
crime involves a breach of the local peace. (Wildenhus
case, 120 United States, 1 ; Ortolan, diplomatie de la Mer, 1,
450; Journal de Droit International Privé, 1876, p. 413.)
On the question of damages for the detention of the ves-
sel the following cases were cited :
The Baltimore, 8 Wall. 377–385.
Cayuga, 14 Wall. 270.
. Potomac, 105 U. S. 630.
Porter, 5 Fed. Rep. 822.
8 Fed. Rep. 170.
Brown v. Hicks, 24 Fed. Rep. 811.
Parsons v. Terry, 1 Low. 60.
The Notting Hill, 9 Pro. Div. 105–113.
Porana, 2 Pro. Div. 118.
The Mary Steele, 2 Low, 370–374.
The Resolute, 8 Pro. Div. 109.
Phillimore, pp. 112, 113.
The Clarence, 3 Wm. Rob. 283–286.
72
The Gleaner, 3 Asp. Mor. Law cas. 582.
Morsden, Collision (2d ed.) p. 115.
The James Maury, Alabama Claims op. 47.
Williamson v. Barrett, 13 How. 101.
Walter Pharo, 1 Lowell, 437.
Stromless, 1 Lowell, 153.
Mayflower, 1 Brown, adm., 376.
Transit, 4 Ben. 138.
Swift v. Brownell, 1 Holmes, 467.
The Antelope, 1 Low. 130.
Browne v. Smith, 1 Low. 547.
Frates v. Howland, 2 Low. 36.
Hussey v. Fields, 1 Sprague, 394–396.
Rnight v. Parsons, ibid. 279.
290 Bbls. Oil, ibid. 475.
Baxter v. Rodman, 3 Pick. 435.
The brief of the Agent of Chile claimed that Borden was mani-
festly responsible for the landing of the sailor on the island
of Juan Fernandez, which was within the jurisdiction of
Chile. He practically admitted that Chile had no jurisdic-
tion for the acts of claimant on the high seas; that while an
error may have been committed by the authorities at Con-
cepción in attempting to take jurisdiction of the case, the
error worked no injury to Borden; that the fact that the
tribunal at Valparaiso made an order directing the police to
search for witnesses leads to the conclusion that that tribunal
was of opinion that the criminal code in Chile in some of its
provisions was applicable to the offence charged upon Capt.
Borden. In that view of the case the proceedings at Wal-
paraiso were by due process of law, of which Capt. Borden
neither for himself nor as an owner of a large part of the
Hope O), had any right to complain ; that the damages
claimed were in large part consequential damages, which by
the rules of public and municipal law are excluded from
judicial consideration; that the owners of the vessel can
73
have no legal claim for compensation on account of what
may have been due to the subordinate officers and men.
The claim, if any claim is found to exist, should have been
made by them for their respective shares in the product of
the voyage. The captain of the vessel would only be
entitled to his proportion, and what that is the Commis-
sioners are without means of determining; that by the
natural process of the voyage, if successful, the expenditure
called the outfit would be converted into what is known as
the “catch "-that is, the oil and bone obtained from the
whales; that there is no testimony tending to show what
the condition of the vessel was in respect to the outfit or in
respect to the quantity of oil and bone on board the vessel
at the time of her arrival at Talcahuano, hence there is no
basis for any estimate of loss, except for the vessel and its
detention ; that claims for the loss of the vessel or deteriora-
tion thereof in consequence of the incapacity of Commander
Seymour are consequential damages and outside the jurisdic-
tion of the Commission.
The majority of the Commission (Commissioner Goode
dissenting) held that the claimant was not entitled to re-
cover any damages on account of his personal arrest or on
account of actual cash expenses paid by him in consequence
of said arrest. While an error may have been committed
by the Chilean authorities in ordering arrest of claimant, it
does not appear that it was done maliciously, without prob-
able cause or in disregard of due process of law. The de-
cision of the Commission in dismissing the claim of Ricardo
L. Trumbull v. The United States is accepted as a precedent
which should be followed in this case.
On the other hand, the majority of the Commission (Com-
missioner Gana dissenting) were of the opinion that the
claimant was entitled to recover damages on account of the
arrest and detention of the vessel, saying: “The principle is
well established in cases like the present that the loss of the
use of the vessel is the proper measure of damages, and the
74
loss of such use is the loss of her ‘probable catch ' during
her enforced absence from the fishing grounds; that the
testimony of claimant proves that on account of the deten-
tion in port she lost forty-two days on the cruising grounds, and
that $250 per day is a reasonable estimate of the damages
thereby sustained. The respondent Government offered no
testimony in rebuttal on this subject, we therefore render
judgment for claimant for $9,187.50.”
WELLs, FARGO & cowº
Q). No. 10.
THE REPUBLIC OF CHILE. W
The claimant, a Colorado corporation, avers that it re-
ceived from the American Bank Note Company, a New York
corporation, for carriage to the city of Lima, Peru, 28 cases,
said to contain valuable stationery, to be delivered to the
order of Messrs. Prevost & Co., Lima, Peru, the agents of
said American Bank Note Co., the contents of said cases
being valued at $34,700; that said cases were duly forwarded
to Peru, and while off the port of Chimbote, on the 17th of
September, 1880, the Chilean corvette Chacabuco took the
said 28 cases by force from the vessel on which they were
shipped. Protest was duly made before the U. S. Consular
Agent at Chimbote. Twenty-four of said 28 cases contained
forms or emblems of paper money, and 4 contained postage
stamps; that said property had not passed to the ownership
of Peru, but remained in the Bank Note Company until
they were received and accepted by the authorized officials
of said Republic ; that by reason of said seizure claimant
was compelled to make payment to the American Bank Note
Company of the value thereof, $34,700, and received an assign-
ment and subrogation of the said company's interest in the
property so seized. The claim was duly made through the
State Department of the United States; that the emblems
and forms of paper money thus seized by Chile, aggregating
over 7,000,000 soles, were put in enforced circulation in Peru
75
by Chile, who required all persons to accept such money at
its full face value in exchange for supplies, goods, and prop-
erty used by the forces of Chile ; that a similar case of
money destined for Chile was seized in transit by the forces
of Peru, but on demand by the Government of the United
States the property was relurned by Peru and delivered to
Chile by claimant.
Claimant asks judgment for the value of said property and
interest, amounting in all to $58,389.97. -
By stipulation, signed by the Agent of the Republic of
Chile and the Agent of the United States, at the request of
the claimant, a compromise award was entered in this case
in the sum of $29,194.98, United States gold coin.
CHARLEs G. WILSON
Q). No. 11.
THE REPUBLIC OF CHILE.
Claimant avers that he was born in Sweden, emigrated to
the United States, and resided in Brooklyn several years, and
on the 23d day of July, 1869, applied for citizenship, and
that on the 11th day of October, 1893, such application for
citizenship was perfected by the Superior Court of the city
of New York, in the State of New York ; that he is advised
that his protection as a citizen of the United States relates
back to and began on the date of his declaration to become
a citizen of the United States, to wit, on the 23d of July,
1869; that he resided at the time the acts complained of
occurred, and now, at Iquique, Chile ; that on the 20th of
January, 1891, he being then a merchant in Iquique and the
owner of buildings, furniture, &c., all of said buildings,
furniture, merchandise, and other property were totally de-
stroyed in the conflict of arms which took place between
Balmaceda's troops and the Congressional troops ; that such
destruction was unjustifiable and unwarrantable on the part
of said troops, and not a case of military necessity. Where-
fore he claims for the value of said property with interest
$142,487.61. -
76
The Republic of Chile demurred generally to the me-
morial, claiming that by the first article of the Convention
between the United States and the Republic of Chile claim-
ants against Chile must have been citizens of the United
States at the time when the acts complained of were com-
mitted; that in the present case the memorialist emigrated
from Sweden, resided two or three years in the United States
and declared his intention of becoming a citizen, but before
obtaining naturalization papers abandoned his residence to
definitely settle in Chile, where he acquired valuable property,
and that after the treaty of the 7th of August, 1892, was con-
cluded, and the Commission established he took out his final
naturalization papers.
The private counsel for claimant filed a brief contending
that although the final papers were taken out after the for-
mation of the Commission and after the acts complained of
happened, yet they related back to the time when the first
papers were taken out, citing the American Law Register, 18
New Series, 393 ; 16 Wend. 617, sections 2165, 2167, 2168,
of the Revised Statutes of the United States; also sections
of the Revised Statutes showing that an alien who has made
oath of his intention to become a citizen may take out a
patent for an invention, and also to pre-empt land and to
acquire rights to mining claims; and also the act of Con-
gress, March 3, 1863, that persons declaring their intention
to become citizens are liable to perform military duty in the
service of the United States. He further claimed that, the
final papers being taken out, they take effect by relation
from the date of the first papers. (Johnson v. Ballou, 28
Michigan, 337; 3d Green, 354; Viner's Abridgment, 291,
Title “Relation;” Bouvier Law Dict., Title “Relation;” 15th
American Decisions, 248; 10th Howard, 348; 119 United
States, 597; 73 United States, 122; 143 United States, 135.)
He also cited the Martin Kosta case; Pomeroy's Int. Law,
254; Hall's Int. Law, p. 237, and other authorities. g
The case was argued by the Agents for the United States
and Chile, and the Assistant Counsel for Chile. g
77
The Commission held that according to the showing made
by the memorialist himself it could not take jurisdiction of
his claim ; that by the express terms of the Convention
under which the Commission was created its jurisdiction
is confined to claims on the part of citizens of the two Gov-
ernments respectively. The wrongs and injuries complained
of were committed on the 19th of February, 1891. At that
time the claimant was not a citizen of the United States, and
did not become such until the 11th day of October, 1893. It
is true that on the 23d of July, 1869, he declared his inten-
tion to become a citizen of the United States, but that decla-
ration did not make him a citizen. It was only an incipient
step in that direction. The Commission then cited with ap-
proval the views of Dr. Francis Lieber, acting as umpire
under the treaty between the United States and Mexico,
wherein he holds, first, “that every State exercises the power
of determining who shall enjoy the right of membership of
the political society or body politic of which it consists;
second, that those who are invested by the municipal consti-
tution and laws of a country with this quality or character,
and none others, are citizens of the State ; third, that nations
proceed in their municipal legislation upon the idea that the
citizens of other countries have the right to change their na-
tionality and incorporate themselves with new political socie-
ties; fourth, that all nations provide by their laws the terms
and conditions upon and in pursuance of which this change
of nationality may be and is effected; fifth, that except in
pursuance of those laws and upon the terms and conditions
so provided no member of any political society can incorpo-
rate himself with a new State, or become a citizen or subject
of such State ; sixth, that until a change of nationality is thus
effected the old relation subsists, unless the individual has
done some act which, under the laws of the State of his origin,
has the effect of demationalizing him.” -
The Commission then quoted the 14th Amendment of the
Constitution of the United States and the naturalization laws
78
of the United States and say, “it thus appears that accord-
ing to the plain and explicit provisions of law, both consti-
tutional and statutory, the claimant was not a citizen of the
United States at the time he sustained the damages and
losses complained of.” They also quote the treaty between
the United States and Sweden and Norway of January 12,
1872, which declares, “The declaration of an intention to
become a citizen of one or the other country has not for
either party the effect of citizenship legally acquired.” They
also cite the case of Perché v. The United States, French
and American Claims Commission, p. 4, and letters from
Secretaries Marcy, Bayard, and others to the same effect.
Wherefore they sustained the demurrer and disallowed the
claim for want of jurisdiction.
MICHAEL O’BRIEN et al.
Q). No. 12.
THE REPUBLIC OF CHILE.
This case was submitted on the part of the United States,
but not on the part of Chile ; consequently was not considered
by the Commission.
JENNIE R. READ
?). No. 13.
THE REPUBLIC OF CHILE.
The memorialist, a native-born citizen of the United
States, and the wife of a native-born citizen, a resident of
Valparaiso, Chile, at the time the injuries complained of oc-
curred, represents that she was the owner of certain house-
hold goods, wearing apparel, and other property contained
in her residence on the Cerro Miramar, a suburb of Wal-
paraíso in Chile ; that all of said property was destroyed or
appropriated by the officers and soldiers of the army of
Chile on the 23d day of August, 1891; that she had left
her property in charge of a reliable agent, and that a body of
Chilean soldiers, directed by the officers of Balmaceda afore-
79
said, broke into and took possession of said residence; that
her agent protested and informed them that the property
was that of a citizen of the United States, but, disregarding
this, the officers wrongfully and unlawfully destroyed and
carried away the contents thereof, breaking open chests and
drawers that were locked, &c., &c. She files an inventory of
the items and value of the property lost and destroyed, and
claims with interest $8,253.40 in Chilean currency.
The testimony introduced by claimant sustained the aver-
ments of her memorial, and Chile introduced the testimony
of the officers commanding Balmaceda's army, showing that
they were in possession of the Cerro Miramar, but denying
that any property was destroyed or taken away by them or
their soldiers at the time mentioned by claimant. The
preponderance of the testimony was greatly with the
claimant.
Briefs were filed by the private counsel of the claimant
and the Agent of Chile, and the case was fully argued by the
Agents of the United States and Chile and his Assistant
Counsel. g -
On behalf of the United States the points made and au-
thorities cited were the same as made in the case of Shrigley,
No. 4.
The Agent of Chile made practically the same defence as
in that case, and in addition insisted that this claim was
supported only by affidavits containing general statements,
there having been no opportunity for the Republic of Chile
to subject these affiants to cross-examination, by which
alone the value of their testimony could be established.
The Commission held, “ after an examination of all of the
circumstances of the case, we believe that the same con-
siderations that led us to award a compensation to W. S.
Shrigley exist in favor of Jennie R. Read, and in conse-
quence we award her the sum of $1,137.98, United States
gold coin.”
80
CLIFFORD D. BLODGETT
Q). No. 14.
THE REPUBLIC OF CHILE.
This case was submitted on the part of the United States,
but not on the part of Chile; hence the Commission did not
consider it.
CHARLES WATSON, as the Executor of
Henry Meiggs, Deceased, | -
(). *N o. 15.
THE REPUBLIC OF CHILE. J
Charles Watson, a British subject, sued as executor of the
last will and testament of Henry Meiggs, a native-born citi-
zen of the United States, averring that Henry Meiggs
died intestate, and that his will was probated on the 5th of
October, 1877, at Lima, Peru; that by the 27th clause of
said will a Board of Directors, consisting of himself and
others, was established to carry out the contracts held by
said Meiggs with the Peruvian Government, and that he was
named in said will as President of said Board, and authorized
to represent the same ; that he acted as the exclusive repre-
sentative thereof and was so recognized by said Board of
Directors and by the Government of Peru ; that on the 21st
of May, 1878, the heirs and successors of Meiggs conveyed
to him certain railroad contracts which Meiggs held with
Peru, which required by the terms thereof the approval of
the Peruvian Government to effect the transfer of the rights
and properties aforesaid, and such consent and approval
were given by said Government on the 19th day of Septem-
ber, 1881; that after the said transfer, but before the ap-
proval thereof, the Chilean forces at Mollendo, Peru, in
March, 1880, while said property was in his control and pos-
session as the sole legal representative and executive director
of the railroad property of said Henry Meiggs, deceased,
took possession of the undefended railroad terminus and
port of Mollendo, Peru, which was not fortified nor defended
S1
in any manner, and no resistance made to the occupancy
thereof, and destroyed the stations, machine shops, and other
buildings, locomotives, cars, and other property and mate-
rials which he was in possession of in his representative
capacity, which said destruction was unjustifiable and un-
warrantable on the part of said troops, and were not acts of
military necessity, nor in accordance with the practices of
legitimate war; for which property and materials, together
with interest thereon, he asks judgment in the sum of
$278,205.84.
The Agent for Chile filed a general demurrer to said
memorial, claiming that the assent of the Peruvian Govern-
ment to the contract of transfer on the 19th day of Septem-
ber, 1881, vested the property and rights of property abso-
lutely in Watson ; that Watson was a British subject; that
therefore neither on the 24th day of September, 1878, nor
on the 19th day of September, 1881, nor on the 26th day of
January, 1893, when the ratification of the treaty from which
this Commission derives all its authority were exchanged,
had the Government of the United States any authority or
jurisdiction over either the person or the property of the
said Charles Watson, and that the claim is not within the
jurisdiction of the Commission.
Briefs in reply were filed by the private counsel for claim-
ant, and the case was fully argued by the Agent for the
United States and the Agent and Assistant Counsel for Chile.
On behalf of the United States it was claimed that the de-
murrer admits the truth of the facts well pleaded; that the
memorial clearly shows that claimant presents this claim in
his representative capacity under the last will and testa-
ment of Henry Meiggs ; that when the destruction and dam-
age to the property occurred, in March, 1880, it was in his con-
trol and possession as the sole legal representative and
executive director of said Meiggs, deceased; that as it is
admitted that Henry Meiggs during all his life was
a citizen of the United States, the status of Mr. Wat-
82
son in his individual capacity can have no relevancy,
for the question is whether the deceased was a citizen
of the United States, and, if living, entitled to repara-
tion at the time the injury was done ; that an alien may
be an executor. Citing Coke, Litt. p. 2009; American and
Eng. Encyc. of Law, vol. 7, par. 4, p. 171 ; also citing the
case of Willet v. Venezuela, Venezuelan Claims Commis-
sion, p. 96, which held :
“It is very clear that whatever may be the status of Mrs.
Willet or of her children with respect to their citizenship to
the United States, whether full or limited, there can be no
doubt whatever that her husband and their father was a citi-
Zen at the time the injury in this case occurred, and continued
to hold a claim against the Government of Venezuela until
he died intestate in 1862. This being the case, Mrs. Willet
claimed before the old Commission as administratrix, and
clearly had the right to represent a claim of a citizen of the
United States, whatever may have been her personal status.”
This ruling was reaffirmed and cited as authority by the
Venezuelan Commission in the case of Peck v. Venezuela,
same volume, pp. 419–420.
That because Watson had presented this claim as a British
subject before the “International Tribunal,” he was not
debarred from presenting it before this Commission in
his representative capacity, because it appears that the “In-
ternational Tribunal,” in its decision rendered J uly 4, 1887,
expressly held that said “contract of conveyance only took
effect, legally, on and after the date of the Supreme Decree
approving it, which is proved by the decree itself; ” that as
Chile had insisted before the “International Tribunal” that
Watson did not hold the property in his own right at the
time it was destroyed because the approval of Peru to
its transfer had not then been secured, it was now es-
topped to deny his right to recover in his representative
capacity.
A majority of the Commission, Messrs. Claparède and
83
Gana (Commissioner Goode dissenting), sustained the de-
murrer, and granted leave to the memorialist to amend the
memorial by stating his present residence and place of his
residence at the time when the acts complained of occurred ;
also stating, in accordance with the provisions of article 30
of the rules of the Commission, the names of the heirs of
Henry Meiggs now living, their places of residence and
citizenship, and also that claimant is duly authorized to
present this claim on their behalf; such amendment to be
made within two months.
Commissioner Goode in his dissenting opinion recited the
averments of the memorial, showing that Watson sued in
his representative capacity and that when the destruction
occurred the property was in his control as the sole legal
representative of Meiggs, and states: “I am of opinion that
the title to the property in question never vested in Charles
Watson as an individual; that he had no claim to it except
in his capacity of legal representative ; the conveyance of
May 21, 1878, from the heirs and executors of said Henry
Meiggs to the said Charles Watson requires in express terms
the approval of the Peruvian Government in order to make
a valid transfer of the property mentioned. The approval
of the Peruvian Government was a condition precedent, and
until that approval was given the attempt to transfer could
not take effect and the so-called deed of conveyance was
inoperative and void. The consent of the Government of
Peru was not given until the 19th of September, 1881, and
before that consent was given the destruction of the property
took place, to wit, between the 9th and 13th days of March,
1880. How could property not in existence be transferred?
How could a valid transfer of property destroyed in 1880
be made in 1881? If the property did not belong to Wat-
son in his own right at the time of its destruction he can
make no claim for indemnity for the value of the property
destroyed. The claim to indemnity can only be maintained
by the owner of the property at the time it was destroyed.
84.
When that destruction took place the property belonged to
the estate of Henry Meiggs, deceased, and the legal title to
it was vested in Charles Watson, as representative of that
estate. * * * I am sustained in this view by the de-
cision of the ‘International Tribunal' created and organized
for the settlement of claims between Chile and Great Britain.
Before that tribunal Charles Watson claimed from the Chilean
Government the value of this identical property destroyed
at Mollendo.” That Chile resisted the claim on the ground
that the property belonged to the heirs of Meiggs, which
view was adopted by that tribunal. That decision conceded
that Watson's right to present this claim in his representa-
tive capacity cannot be disputed on the ground that he is a
Dritish subject, and that as the real beneficiaries are those
entitled to the estate of Henry Meiggs, a citizen of the
United States, the demurrer should be overruled.
Watson not having filed his amended memorial in accord-
ance with the order of the majority of the Commission, on
motion the memorial was dismissed.
GRACE BROTHERS & Co.
Q). No. 16.
THE REPUBLIC OF CHILE.
The memorials of William R. Grace, Michael P. Grace,
John W. Grace, and Charles R. Flint, copartners in the
firm of Grace Brothers & Company, citizens of the United
States of America—Charles R. Flint by birth, the others by
naturalization—represent that on the 27th of January, 1881,
the General-in-Chief of the Chilean army occupying Lima,
Peru, declared the ports of Ancón, Chancay, Chorrillos, and
other ports adjacent to Callao closed to commerce for the
purpose of preventing the exportation of produce from such
ports without special permission from the Chilean authori-
ties, and of securing the payment to the Chilean Govern-
ment of all duties on such exportations.
That, at the time hereinafter complained of, there were no
85
Chilean armed forces or naval vessels at or near Chancay, and
no effectual blockade existed according to international law.
That memorialists shipped 200 bags of sugar on the sloop
Victoria, which had complied with all the requirements
established by the Chilean custom-house authorities at
Callao, and had been dispatched from that port to Chancay
in February, 1883.
That said sugar was loaded on said sloop at said port of
Chancay for the port of Callao in accordance with require-
ments of Chilean authorities and without design to violate
any orders of the General-in-Chief of the Chilean army.
That when the vessel arrived at Callao, March 11, 1883,
and duly manifested her cargo of 200 bags of sugar in the
Chilean custom-house at that port, they attempted to trans-
fer the same to the steamer ſtata and paid the export duties
thereon, but the administrator of the Callao custom-house
ordered the suspension of the transshipment, and required a
written guarantee that if an infringement of the law could
be proved, Grace Brothers and Co. would be responsible for
the value of the sugar, before he permitted it to be forwarded
to its destination.
At the direction of the administrator of the custom-house
at Callao, the judge of the Criminal Court, under the control
of the Government of Chile, commenced an action against
the master of the sloop Victoria to forfeit the same for vio-
lation of the blockade at Chancay. No notice was served
on the claimants or any person connected with them upon
whom notice could have been legally served, and they were
not parties to the proceedings in any way, which resulted in
a sentence that the sugar was contraband of war, and de-
clared to be confiscated.
That notice of said judgment was given them, which was
the first notice received of the institution or pendency of the
proceedings or sentence of the court. That the immediate
delivery of the 200 bags of sugar was demanded of then,
but, considering the proceedings erroneous, unjust, and void,
86
they declined to comply with the orders of the custom-house
and deliver the sugar, by reason of which the Chilean
authorities issued an order suspending their right to transact
any business at the custom-house at Callao.
They appealed to the Commander-in-Chief of the Chilean
army, asking that the order be revoked, which was done on
the 8th of October, 1883, but when they appeared to resume
business the administrator of the custom-house declined to
allow them to so do, on the ground that they were indebted .
to the custom-house for duties on the goods, the removal of
which had been authorized by the General-in-Chief.
That by reason of said disobedience of orders they were
debarred from doing business for twelve days, during which
time their extensive goods business was necessarily and
absolutely paralyzed. And, by reason of the premises, they
were required and compelled to pay to the Chilean author-
ities, under protest, without the sanction or authority of
either local or international law, the sum of 1,500 silver
soles, and were also debarred, without cause, from trans-
acting business at the Callao custom-house, for twelve days,
causing great injury to their extensive business and to their
loss and damage 12,000 soles, for which they ask judgment
with interest, amounting in all to 17,928 soles.
Proofs were filed and the case was submitted on the part
of the United States on the 23d of December, 1893.
On January 4th Chile filed a motion to dismiss the case,
which will be further noticed in case No. 29.
FREDERICK SELWAY }
7). $ No. 17.
THE REPUBLIC OF CHILE.
*
The claimant in his memorial alleges that he was a citizen
of the United States by naturalization ; that in 1847, being
an ordinary seaman on board the United States Ship Co-
lumbus of the navy, that said ship touched at Valparaiso,
and he, with others, went on shore, and while conducting
87
themselves in a peaceful and quiet manner they were set
upon by a mob and then by the police and soldiers and
severely bruised, cut, and injured by clubs and cutlasses in
the hands of the police and soldiers; that by reason of the
injuries received he was crippled for life.
The memorialist stated that he did not know the rank or
names of persons who committed the said acts complained
of, but averred that they belonged to the civil authorities of
the Republic of Chile, viz., the police of Valparaiso, and to
the military authorities of said Republic, viz., the soldiers of
the Chilean army.
The memorial recites the particulars of the injury and
claims damages in the sum of $50,000.
Chile demurred generally on the ground that the me-
morialist did not state the time when the injuries were in-
flicted, nor the name, rank, or employment of the persons
who committed the act alleged and on which complaint was
made ; therefore it is not within the provisions of the treaty
which limits the jurisdiction of the tribunal “to acts com-
mitted by the civil or military authorities " of the country.
against which the complaint is preferred. It is not enough
to aver generally that the acts were committed by the civil
and military authorities; the persons charged must be so
specified, named, or described that the defendant Govern-
ment may have the means of inquiry and identification.
The case was argued by the Agents of the respective Gov-
ernments and the Assistant Counsel for Chile.
The Commission overruled the demurrer, stating—
“as the provisions of Article 3c of the Rules do not make
the naming of the persons who have committed the acts
complained of a conditio sine qua non for the basis of the
claims, we are of the opinion that the memorial is sufficiently
specific under the rules referred to.”
Testimony was taken by the claimant, no evidence was
adduced by the respondent, and the case submitted, briefs
being filed by the private counsel for the claimant and by
88
the Agent of Chile, and the case argued on the merits by the
respective Agents and the Assistant Counsel of Chile.
The facts developed were substantially as follows:
1st. The claimant was an ordinary seaman on the United
States ship Columbus in 1847; that while lying in the harbor
of Valparaiso he, with others, went ashore and was injured in
the riot. He was behaving in a peaceful and orderly manner
and was set upon by the police of Valparaiso and the
soldiers of Chile, and wantonly and cruelly assaulted and
bruised. The persons who assaulted him were dressed in
the uniforms of soldiers and police. There was also evi-
dence as to the character of the injuries, the result being
that he was crippled and disfigured for life.
The case turned on the question of his citizenship at the
time. The claimant was not a native-born citizen of the
United States. He enlisted in the navy in 1841 or 1842.
The American consul gave him a certificate as an American,
and he enlisted and served in the United States service until
he was discharged ; that he declared his intention to become
a citizen before the American consul at Montevideo. In
1845 he re-enlisted on board the United States ship Morth
Carolina; that he served in the navy during the spring of
1848, when he was discharged in consequence of disabilities
resulting from the injuries received at Valparaiso. He also
produced a certificate of the collector of customs of the port
of Baltimore that he was a citizen of the United States.
On the part of the claimant it was argued that as the
United States had recognized him as one of its citizens no
other Government could question that fact ; that the act of
Congress of March 3, 1813, entitled “An act for the regula-
tion of seamen on board the public and private vessels of the
United States" (second Statutes, 809), provides that—
“from and after the termination of the war between the
United States and Great Britain it shall not be lawful to
employ on board any of the public or private vessels of the
United States any person or persons not citizens of the
89
United States, except persons of color, natives of the United
States; and that from and after such time it shall not be
lawful to employ as aforesaid any naturalized citizen of the
United States, unless such citizen shall produce to the com-
mander of the public vessel, to be employed on board such
vessel, or to the collector of customs a certified copy of the
act by which he became naturalized, setting forth such nat-
uralization and the particulars thereof; ”
that his service in the United States navy while this law was
in force, and his discharge from that service, he receiving a
certificate from the collector of customs of the port of Balti-
more that he was a citizen of the United States under the
provisions of such law, gave him a standing as a citizen be -
fore this Commission.
That where no record of naturalization can be produced,
evidence that the person having the necessary qualifications
to become a citizen in fact did for a long time exercise rights
belonging only to a citizen is sufficient to warrant a jury in
inferring that he had been duly naturalized as a citizen.
(Boyd against Thayer, 143 United States, 180; Blight against
Rochester, 7th Wheaton, 535, 546; Hogan against Kurtz, 94
United States, 773–778.) .
On the other hand, the Agent for Chile insisted that the
certificate of the collector of the port, dated March 2, 1850,
in which he states that Selway is a citizen of the United
States, and the certificate that he was discharged from the
naval service of the United States are not sufficient to show
naturalization under the laws of the United States (citing
Revised Statutes, United States, section 265 et seq.), and that
as claimant bases his right to appear before the Commission
on his naturalization, he must show that he has been invested
with citizenship in accordance with the laws of the United
States.
The Commission disposed of the case as follows:
“The Commission, considering that it does not appear from
the certificate given by the collector for the district of Balti-
more, dated March 2, 1850, that Frederick Selway was a citi-
zen of the United States in the year 1847—i. e., at the time
90
the acts complained of occurred, orders and adjudges that
this claim be, and it is hereby, dismissed.”
SOUTH AMERICAN STEAMSHIP Co. t -
(). No. 18.
THE UNITED STATES.
The memorialist represents that it is a Chilean corpora- "
tion having its principal office at Valparaiso.
That about April 6, 1891, its agents undertook on behalf
of the Provisional, lawfully established Government of Chile
to transport a cargo of certain small-arms, destined and in-
tended for the land forces under the authority of said Pro-
visional Government, from a point on the coast of the State
of California, in the United States, to the port of Iquique,
Chile, and that in the performance of said undertaking the
steamship ſtata, a vessel belonging to said company, was
dispatched to the United States and arrived at San Diego,
California, May 3, 1891.
That on the 6th of May, while in said harbor, said steam-
ship was boarded by a person who alleged himself to be one
Spaulding, an officer of the United States, and in said pre-
tended capacity assumed to take possession of said vessel,
but, being unable to exhibit any authority as an officer of the
United States, the officers of the ship, believing him to be
falsely personating an officer of the United States, set him
on shore and put to Sea. She received at a point near the
Island of San Clemente 250 cases of rifles and 2,000 cases of
ammunition therefor, and steamed southward to Iquique,
arriving there June 3, 1891.
That the United States Government directed its naval
officers to proceed with a vessel of war in pursuit of the said
Itata, to intercept her by force if found on the high seas,
and to cause her to return to San Diego.
That it became known to the Provisional Government of
Chile, through the medium of the public press, that the
steamship ſtata was charged by the Government of the
91
United States with an infraction of its neutrality laws; that a
portion of the United States naval forces were then en route
to the port of Iquique for the purpose of securing the ſtata,
and said reports were confirmed by a note to the Minister
of Foreign Relations of Chile from Admiral McCann, in
which the latter, as commander of the United States naval
forces on that station and as a representative of his Govern-
ment, solemnly asserted and declared, without qualification,
that in his opinion the ſtata, in procuring her cargo within
the waters of the United States, was guilty of a violation of
said neutrality laws.
Upon these representations of Admiral McCann, and be-
cause of the demands of the Government of the United States,
accompanied as they were by the presence of a large naval
force, the said Itata with her cargo was surrendered under
duress to the representatives of the United States ; that she
was taken possession of on the 4th of June, 1891, and de-
parted from Iquique on the 13th of June, 1891, under con-
voy of the United States steamer Charleston, by whom she
was placed in the custody of the United States marshal at
San Diego on and about the 6th day of July, 1891; that an
information of libel was filed against the Itata by the United
States attorney in and for the southern district of California
on the 8th of July, under section 5283 of the Revised Statutes.
The complaint then purports to set out the substance of
the libel, and avers “the testimony adduced in the judicial
proceedings showed conclusively that the basis of said libel
was groundless, and accordingly Judge Ross, before whom
the case was heard in the District Court for the Southern Dis-
trict of California, promptly dismissed the same, which de-
cision was affirmed by the Circuit Court of the United States,
and likewise by the Circuit Court of Appeals.” The Itata
was released and permitted to depart from the jurisdiction
of the United States upon giving bond on the 1st of October,
1891, and returned to Valparaiso on November 4, but was
not placed in the hands of the company until November 10.
f
92
By reason of the acts herein alleged, viz., the unlawful
seizure and detention of the Itata for a long period by the
authorized officers of the United States, contrary to public
law and the laws of nations and the laws of the United
States, the memorialist has been greatly damaged and claims
as follows: 1st. For the lease of the vessel from April 6, ,
1891, date on which she began her voyage from Iquique to
San Diego, until November 10, 1891, date on which she re-
turned into the company's possession at Valparaíso ; for
coal consumed on two voyages; for extraordinary repairs on
machinery and boilers made necessary by the long voyages
to and from San Diego, said machinery and boilers having
been constructed purposely for short trips between ports on
the coast; for insurance ; for cost of cablegrams, legal fees,
and expenses in the United States; for loss of use during
the three months following the triumph of the constitutional
cause, making in all £46,551 16s. 8d.
December 16, 1893, the Agent for the United States
moved the Commission to require the claimant to make the
memorial more definite, and to comply with the rules of said
Commission by filing such exhibits and documents as were
referred to in such memorial and required by the rules, par-
ticularly the records of the courts of California on which
the memorial shows the case is based, and the articles of
incorporation of the claimant showing what its authority
was. The motion was elaborately argued by the Agents of
the respective Governments and the Assistant Counsel for
Chile.
On December 19, 1893, the Commission sustained the
motion and ordered that the claimant be required to pro-
duce a copy of the record of the suits heard and decided in
the District Court for the Southern District of California as
an exhibit in the case. Thereupon said record was filed.
For the proper understanding of the case it is necessary
briefly to refer to the facts shown by the records of the Cali-
fornia courts; this record being filed under the rules and
93
order of the Commission became part of the memorial and
therefore must be considered. From the facts shown by
this exhibit it appears that on the 8th of July, 1891, libel of
information against the Itata was filed by the United States
Attorney for the Southern District of California, averring
that the vessel was seized on the 8th day of July, 1891, by
the United States Marshal for the Southern District of Cal-
ifornia, at the port of San Diego, and that he had the same
in his custody at said port as being forfeited for violation of
the neutrality laws of the United States, which violations
are set up specifically in three separate paragraphs, and
praying the usual process of monition and citation. On said
8th day of July it was ordered by the court that the monition
and warrant of arrest issue according to the prayer of said
libel, returnable on Monday, the 14th day of September,
1891, at 11 o’clock A. M. The monition was issued the 8th
day of July, commanding the United States marshal to
attach the ſtata, etc., and to give notice to all persons claim-
ing the same to appear in court on the 14th day of Septem-
ber, 1891. The marshal's return shows that the steamer was
attached on the 9th day of July, 1891. Citation was issued
on said 8th day of July to respondents to appear on the
14th of September, 1891, to answer the libel, etc., which was
served by copy on Peter Mannzen, July 9, 1891, and Miguel
Tejada, July 10, 1891, by the United States marshal.
On the 7th of September, 1891, Miguel Tejada, “captain
in the navy of the Republic of Chile, commanding the trans-
port /tata,” made claim for the vessel, stating “ that he is
the commander and in possession of the steamship ſtata,
her tackle, apparel, and furniture, for the Government of the
Republic of Chile, as charterer thereof, under the laws of
said Republic, from the South American Steamship Com-
pany, owner of said steamship. Wherefore this claimant
prays that this honorable court will be pleased to decree a
restitution of the same to him as such commander in posses-
sion,” &c., &c. This is sworn to by Captain Tejada, saying:
94.
“I am captain in the navy of the Republic of Chile, and am
duly authorized to make this affidavit on behalf of the Gov-
ernment of said Republic,” &c.
On the 10th day of September, Charles R. Flint, “inter-
vening as agent for the interest of the “Compañia Sud
Americana de Vapores, owner of said steamship ſtata, * * *
avers that said company was the owner of said steamship
at the time of the attachment thereof, and that the corpora-
tion above named is the true and bond ſide owner of said
steamship and that no other person is the owner thereof.”
This claim was sworn to by Charles R. Flint on the 3d of
September, 1891.
On September 10th the Compañia Sud Americana de
Vapores (the claimant herein) filed its answer to the libel,
claiming that it was the owner of the vessel, etc., and was a
corporation duly incorporated under the laws of Chile, etc.,
denying knowledge or information in regard to the aver-
ments of the libel charging violation of neutrality, denying
that the so-called insurgents were engaged in any open armed
hostilities and attempted revolution against the Republic of
Chile, and that by force of the statute the steamship, etc.,
became forfeited. It avers that after the 8th day of May, 1891,
and after the alleged violation of the neutrality laws of the
United States by said steamship, and without any lawful
seizure thereof, the vessel left the jurisdiction of the United
States and went to Tauique, and was, in June, 1891, without
legal right, compelled under duress to surrender herself to
the United States man-of-war Charleston, which brought her
to San Diego, and that, after she was thus unlawfully brought
into the territory of the United States, proceedings in this
action were instituted, and the said vessel unlawfully seized;
that such unlawful seizure within the territorial limits of
Chile and bringing her into the United States is and was a
violation of international law and the laws of nations and
the laws of Chile, and confers no rights of action upon the
libellant, or jurisdiction upon the court.
95
In the 11th article of the answer this claimant avers:
“That the said steamship was built by the claimant for the
purpose of being used in its line of transportation steamers
between ports and places in the Republic of Chile and other
ports, and had been so used for many years prior to the year
1891; and while the said vessel was engaged and employed
by the claimant in her business as aforesaid, and on or about
the 16th day of January, 1891, she was violently and by
force of arms taken out of the possession of the claimant,
without its consent or collusion, by an armed force at Iqui-
que, in the Republic of Chile. That the claimant has had
no part or participation in or knowledge of the subsequent
alleged unlawful use of the said steamship, her tackle, ap-
parel, and furniture, and that such use, if any there was, was
unknown to it and against its wishes and the wishes of its
officers, stockholders, and agents, and was accomplished by
duress and violence, and that the said vessel ought not in
justice and right to be forfeited and the claimant deprived
of its property by reason of any unlawful acts committed as
aforesaid under duress and violence and without its knowl-
edge, privity, sanction, or desire. Wherefore the claimant
prays that the libel may be dismissed and the vessel restored
to the claimant, together with its costs,” &c.
On the 14th day of September, 1891, the “Gobierno Pro-
visorio de la República de Chile ” filed its answer to the
libel, admitting the seizure, denying the forfeiture, denying
the facts alleged in the libel as to the violation of the meu-
trality laws, then averring—
“At the date alleged the said vessel was in the service of
the Gobierno Provisorio de la República de Chile or the
Provisional Government of the Republic of Chile, in said
libel described as the Congressional party, and avers that
the said Government was, and is, the lawful Government of
the Republic of Chile, and that at the time alleged it was
carrying on war in behalf of the said Government, but de-
nies that its action was that of armed hostility or revolution
against the Republic of Chile.”
96
This averment is repeated three times in the answer, which
was sworn to by Miguel Tejada, who says:
“I am a captain in the navy of the Republic of Chile, in
command of the steamship ſtata, as bailee of the Govern-
ment of said Republic, and am duly authorized to make this
affidavit in its behalf,” &c., &c. (Record, pp. 16, 17.)
On the 18th day of September, 1891, appraisers were ap-
pointed to appraise the Itata, and on the 21st the appraise-
ment was filed, showing that the vessel was worth $60,000;
and on the said date, on motion of the proctors for the
“Gobiermo Provisorio de la República de Chile,” the ap-
praisement was confirmed, and it was ordered that said ship
be released on bond ; and on the 22d of September, 1891, on
motion of the proctors of the “Gobierno Provisorio de la
República de Chile,” the bond was fixed in the sum of
$60,000; and on the 29th day of September, 1891, on the
claim of Miguel Tejada, “captain of the navy of the Repub-
lic of Chile, commanding the said Itata for the Government
of the Republic of Chile, as charterer thereof, under the
laws of Said Republic, from the South American Steam-
ship Company, owner of said steamship,” the bond for her
release was given, and approved October 1, 1891.
On said last day an order was made—
“that the property now in the custody of the United States
marshal for this district be released and surrendered to
Miguel Tejada, captain in the Chilean navy, appearing for
the claimants, the Gobierno Provisorio de la República de
Chile, and that such property be, and it is hereby, released
from custody of the marshal of the district.”
The case was duly heard, and on the 3d of March, 1892,
a decree was entered dismissing the libel and releasing the
sureties upon the bond from further liability.
The opinion of the United States District Court dismissing
the libel will be found on page 44 of the Record, wherein
the court recites the facts of the case and gives its reason
for dismissing the libel.
97
On page 416 of the Record, in answer to a question by
the court, Mr. Page says that he appears for “the Chilean
Government, who had possession of the ship and brought
her here and to whom she was restored.” And further,
that “we represent exclusively the arms—Mr. White and
ourselves.”
At page 417, in answer to a question of the court, Mr.
Goodrich, proctor, said:
“I appear for the owner, the South American Steamship
Company, which is the owner of the steamship. She was
impressed into service by the Congressional party. She
could have been impressed into service by the Government
of Chile
“The CourT. Let me understand. If the court should be
of opinion that these suits should not be maintained, the
judgment would be that the libel would be dismissed,
wouldn’t it 2 ©
“Mr. GooDRICH. That is all, your honor.
“The CourT. And as to who is the real owner, would
that not be a matter between yourself and the Chilean Gov-
ernment 2
“Mr. GooDRICH. We don't ask your honor to decide that
question at all. We are acting in perfect accord with the
counsel of the Chilean Government, and have stood by and
assented—although we have filed our claim—-stood by and
assented to the bonding of the vessel by the Government
and delivery of it to her.
“The COURT. In that event, what would the court here
have to do with the contest between you and the other
gentlemen 2 -
“Mr. GooDRICH. We have no contest, if your honor
please. The only point is this, that there are certain de-
fences which we have interposed which were not interposed
by the counsel for the Chilean Government, and which
could not be interposed by them, either legally or diplo-
matically. And, as has been said, we are headed for the
same goal upon different tracks,” &c.
Again Mr. Goodrich says:
“I said there is no question between us as to the proper
delivery of the vessel under the bond to the Chilean Govern-
9S
ment and there is no conflict between us in that respect, but
there may be defences which the steamship company can
interpose, either here or hereafter, which cannot be inter-
posed by the Chilean Government.”
The case was appealed by the United States to the United
States Circuit Court of Appeals for the 9th Circuit, and the
judgment affirmed. (See Fed. Rep., vol. 56, p. 505.) In two
opinions delivered on appeal the Circuit Court of Appeals
found that there was probable cause for the seizure and that
the seizing officers had done their duty in the premises.
The Agent for the United States filed a general demurrer
to said memorial and exhibit on the grounds : 1st. That
upon the face of the record the claimant at the time of the
seizure was not in possession of the vessel, nor in any way
damaged by the detention thereof by the United States
officers; on the contrary, the record shows that the vessel
was in the custody of and in the navy of the Provisional
Government of the Republic of Chile. The damage, if any, by
reason of the detention, was done to the Government and
not to a citizen of Chile.
2d. That the Government of Chile has no right to prose-
cute any claim against the Government of the United States
before the Commission in its own right, because the conven-
tion only covers claims on the part of corporations, com-
panies, or private individuals, citizens of Chile, upon the
Government of the United States arising out of acts, etc.,
etc. -
3d. The claimant has no claim against the Government of
the United States for damages for the detention of the ves-
sel, because said vessel when seized was in the possession of
the Provisional Government of Chile in the exercise of emi-
ment domain, or under the provision of the charter of said
company, or by agreement with the company. In either
case the remedy of the claimant would be against the Re-
public of Chile for the use and damage of the vessel during
the time of the alleged detention.
99
4th. The claim is for detention and use and for damages
growing out of long voyages which were made by the vessel
when under the control of the Provisional Government, or
growing out of acts of officers of the Provisional Government,
and whatever injuries resulted to the owners of the vessel
must be a question between the claimant and his own Gov-
ernment, Chile.
5th. The claimant having stood by and assented to the vessel
being claimed and bonded by and returned to the Provisional
Government of Chile, after having itself claimed the vessel
before the court, is estopped to set up any claim for dam-
ages for detention and use and repairs on account of the
voyages under Chilean control, or growing out of acts of
Chilean officers.
6th. There was probable cause for believing that the Itata
was violating the neutrality laws when seized, as found in
the Circuit Court of Appeals of the United States (see
opinion, 56 Fed. Rep. 517; also concurring opinion of
Judge Hanford, p. 518), and the case having been tried on
its merits and the vessel discharged and returned to Chile
leaves no right to the claimant to demand damages from the
United States.
Briefs were filed on the demurrer by the Agent of the
United States and by the private counsel of the claimant
and the Agent of Chile, and the case was thoroughly argued
by the Agents for the United States and Chile and the As-
sistant Counsel for Chile.
On behalf of the United States it was contended that
under the facts developed in the memorial and record the
Congressional party of Chile had the possession and abso-
lute control of the steamship ſtata at the time of her seizure;
that it paid the officers and men and expenses of the vessel,
and that the claimant could not interfere with her manage-
ment ; so that whether this possession was by seizure on the
part of the Congressional party of Chile, or under the
charter of the company, the Provisional Government was
owner of the vessel pro hac vice.
100 \
To establish this the following was cited : 1st. When a ves-
sel is let or hired, whether by written charter or verbal con-
tract, and the possession is transferred to the hirer, and he
sails her at his own expense, and has the entire control, such
hirer is to be deemed the owner for the time being, and as
such, so far as third persons are concerned, succeeds to all
the rights and liabilities of the general owner. (McLean v.
Reed, 172; 1 Newberry Admiralty, 308; Swanton v. Reed,
35 Maine, 106; Reynolds v. Toppam, 15 Mass. 370;
Goodrich v. Lord, 10 Mass. 483; Waite v. Gibbs, 4 Picker-
ing, 298; McIntire v. Bowne, 1 Johnson, N. Y., 229; Hallet
v. The Columbian Insurance Company, 872; Emery e.
Hercy, 4 Maine, 407; Leary v. The United States, 14 Wal-
lace, 67–68; Wilkerson v. Defares, 27 Louisiana Annual,
379.)
2d. That the seizure of the Itata under the neutrality laws
is simply a proceeding in admiralty against the vessel for
violating said laws, and is governed by the rules and pro-
ceedings in admiralty. (The Conserva, 38 Fed. Rep. 431.)
3d. That under the admiralty proceedings, where a vessel
is seized and libelled, and the libellant fails to establish his
cause of action, and the libellant acts in good faith and
without malice, he will not be responsible ea delicto, and that
the advice of counsel and honest belief on the part of the
libellant that he was using rightful remedies exempt him
from the suit for the wrong. There being no averment of
mala, fides, gross negligence, malice, and want of probable
cause, no action accrues to any one by reason of the seizure.
(Citing bark Adolph, 5th Fed. Rep. p. 114; Kempt v.
Brown, 43 Fed. Rep., p. 391 ; Marvel v. The Scandinavia, 33
Fed. Rep., p. 36; The Wasco, 53d Fed. Tep., p. 546; The
Wanderer, 20th Fed. Rep., p. 140).
4th. That under section 970 of the Revised Statutes of
the United States, no action would lie against any United
States officer or against the Government by reason of such
seizure upon dismissal of the libel if the court deciding the
101
case certifies or enters upon the record the fact that there
was probable cause for the seizure ; that the United States
Court of Appeals, before which the case came by appeal, en-
tered on record in two concurrent opinions its solemn judg-
ment that there was probable cause for the prosecution.
(Fed. Rep., vol. 56, p. 517, 518; Aver v. Smith, 17 Wal-
lace, page 82; The ſºobert and Minnie, 47 Fed. Rep., p. 84.)
5th. It is not necessary for the United States to rely on
the statute quoted, and entry on the record of the court
that there was probable cause for the seizure, as under the
broad rules governing the admiralty practice in all countries
no claimant can recover damages for the seizure of his ves-
sel and its subsequent release by the courts, unless a bond
for damages has been given, or unless he can show mala
fides, malice, and want of probable cause. The record in
this case distinctly shows that there was no mala fides,
malice, nor want of probable cause in the prosecution of the
Itata, and the court so decided. (The ſtata, 49 Fed. Rep.
646; 56th Fed. Rep. 505.)
6th. While not material to the issues raised on demurrer,
it was respectfully submitted that the Provisional Govern-
ment of Chile, now the only Government, is responsible to
the claimant for the acts of its naval officers out of which
arose the proceedings for forfeiture. (Spafford v. Dodge,
14 Mass., p. 666 ; Minot v. Jurant, 7 Mass., p. 435 ; Fog
v. United States, 5 Court of Claims, p. 264; Talbert v.
The United States, 7 Court of Claims, p. 417 ; Morgan v.
The United States, 5 Court of Claims, p. 182.) It was fur-
ther insisted that the Agent for Chile ignored entirely the
original seizure by the United States marshal in California,
and the course of the vessel running away with the officer
on board, which gave the United States right to seize her
on the high seas.
On the other hand, the representatives of Chile insisted :
1st. That by the charter of the claimant the Government
of Chile had the right to take possession of any of its vessels
102
for the execution of any mission in time of war, and that by
a modification of the charter in 1888 Chile was bound,
if she took possession of any of the vessels of the company,
to pay the company at the rate of the monthly sum of 198.
sterling for each ton net, all expenses of crew, equipment,
etc., being borne by the company, except coal, which will be
paid by the State ; that the capture and detention of the
vessel by a foreign power was an unforeseen and unexpected
cause, which under the Chilean code eliminates all responsi-
bility; that the Chilean law is in this case lea, loci contractus,
which must rule in conformity with the principles of inter-
national law. (Citing Bar, Private Int. Taw, sections
249–295; Wharton Private Int. Law, section 471; Story
Conflict of Laws, chap. 8.) -
Cited Article 1045 of the Commercial Code of Chile, which
provides :
“If the vessel should be detained during her voyage by
order of a foreign power, the freightment shall continue, but
no freight shall be paid for the time of detention if the
freightment has been settled monthly, nor any increase of
chartel if it has been for the entire voyage.”
Also Article 300 of the French Commercial Code.
“That claimant could not obtain judgment against Chile
for the freightment during the time the ſtata was detained
by the United States.”
Consequently, the capture and detention of the Itata
caused direct damages to the Government of Chile and to
the South American Steamship Company, which is a Chilean
citizen.
2d. That even if probable cause for issuing the order of
detention existed, and the execution of the order was effected
when the Itata was in the territorial jurisdiction of the
United States, after the innocence of the vessel had been
declared there would be just reason for claiming indemnity
for the damages caused through such proceedings. For ex-
103
annple, when there is reason for suspecting a vessel of piracy,
any man-of-war of any country has the right to detain the
suspected vessel and submit her to a visit, but if after such
visit it is asserted that the suspicions were groundless the
detained ship can exact satisfaction and claim for damages
(Bluntschli, Droit International Codifié, arts. 344, 345;
Wharton, Dig. of Int. Law, 408); that the seizure of the
Itata presents the same state of affairs as though a commander
of a man-of-war, erroneously believing a blockade to have
been established, or about to be established, by his Govern-
ment in a hostile port, detains a neutral vessel in the act of
departure from such port, charging her with a violation of
the blockade, whereas the blockade has not gone into effect.
The vessel is ordered released by superior authority, the de-
tention having caused damage to the owners. In such case
the United States itself, in the case of the English ship Perth-
shire, allowed and paid a claim for damages. He also cited
the cases of the Good /ºeturn and Franklin, United States
vessels seized by Chile in 1832 for violation of the customs
laws. It was found that there had been no infraction of the
law, and the ships were released, after long diplomatic dis-
cussion, in which Chile placed her grounds of defence pre-
cisely on the same reasons interposed by the demurrer under
consideration. But the United States pressed the claim for
twenty-six years until the Chilean Congress, in 1858, passed
a law for the payment of the sum that was claimed as com-
pensation for the alleged damages.”
3d. That the ſtata was not detained within the territorial
waters of the United States, but after having abandoned
them the order to pursue the vessel on the high seas was
issued, and after having escaped from this pursuit on the
* NoTE.—Both these cases, after many years, were settled by compromise
in a spirit of comity, disregarding the legal questions involved, and the
records show that the United States practically insisted on the settlement
because there was no probable cause for the detention, and that there was
a denial of justice in the manner of the proceedings.
104.
high seas the Itata was delivered in a Chilean port through
the pressure made by the officers of the United States navy,
who obeyed special instructions of their Government, which
was not justified by international law, even if there were
probable cause. (Bluntschli, art. 399, Droit International
Codifié; Field's International Code, article 626; Abbott's
National Digest, vol. 4, p. 221.) '•
They then considered the items of damage and showed
that one item—“extraordinary repairs of machinery and boil-
ers made necessary by the long voyages to and from San
Diego, said machinery and boilers having been constructed
purposely for short trips to ports on the coast ’’—was damage
to the vessel itself, for which the company undoubtedly has
a right to sue, and that the other items for use of the vessel,
expenses, etc., were all proper items of claim before the
courts of Chile, and the claimant had a right before this
Commission to recover therefor.
As to the damages for detention in territorial waters, they
cited the case of the Meteor, Forbes v. The United States,
10 Court of Claims, 248. -
They further insisted that the ſtata was seized in a
Chilean port, not within the jurisdiction of the United States,
and referred to two telegrams from Secretary Tracy of
May 8 and 9, 1891, reciting that the ſtata sailed from
San Diego, “ having dispossessed the United States Dis-
trict Marshal who had seized her for violation of the
neutrality laws,” and ordering her to be followed and
seized on the high seas ; if in foreign waters, to watch
her and telegraph Department ; if found in convoy of a
Chilean man-of-war, to explain circumstances and demand
restoration to the possession of the United States; if de-
mand is refused, enforce it if your force is clearly sufficient,
etc., etc. That the Provisional Government had knowledge
of these instructions and surrendered the vessel in Iquique
to four powerful men-of-war. They also cited, on the right
of search, the rule in cases of piracy ; Wharton, Int. Digest,
105
section 326; Ortolan, Diplomatie de la Mer, vol. 1, chap.
12, page 248 ; Calvo, Le Droit International, sec. 446;
Dana's Wheaton, page 269 ; Rose v. Himely, 4 Cranch, 241;
Hudson v. Guestier, 6 Cranch, 281 ; The Mariana Flora,
11th Wheaton, 1 ; Anglo-American Mixed Commission, No
243, the Sir William Peel. On the question of probable
cause the case of Peletier against Hayti was also cited.
In reply, the Agent for the United States, on the point of
the validity of the seizure of the ſtata at San Diego, and
the right to pursue her, cited The steamer Jºão Grande, 23
Wallace, 458, 466; May, 2 Wheaton, 123; United States
against 92 barrels of spirits, 8 Blatchford, 480; The brig
Ann, 9 Cranch, 289.
The case was very elaborately argued, and all the authori-
ties on both sides analyzed by the Agent for the United
States and the Agent for Chile and his Assistant Counsel.
But in a report like this the details of those arguments can-
not be given, only a mere synopsis of the points raised.
The Commission decided that the demurrer admitted that
the claimant was the owner of the steamship when she was
seized ; that at the time of the seizure the ſtata was in the
temporary possession of the Provisional Government of
Chile ; that it was immaterial to inquire how that possession
was acquired ; that if the possession was only temporary,
and the general ownership of the vessel remained in the
company, it had, beyond all question, the right to maintain
an action for any damage done to the vessel itself.
After reciting averments of the memorial, the Commission
says:
“It may or may not be true that the said company has a
valid claim against Chile, and that Chile has a valid claim
against the United States, growing out of the seizure of the
Itata. We do not feel called upon to express any opinion
upon that subject ; we only decide at present that the memo-
rialist, as the owner of the steamship ſtata, is entitled to
maintain its claim for any damage done to the vessel itself,
if such damage has been occasioned by any unjustifiable ac-
106
tion of the United States.” ” * * “In view of the
occurrences that took place after the original seizure of the
Itata, we do not deem it necessary at this time to decide
whether there was probable cause for that seizure or not.”
As to the averments of the memorial as to the seizure in
Iduique under duress, it said :
“Assuming it to be true that after the departure of the
Itata from the port of San Diego she was pursued by the
naval authorities of the United States upon the high seas
into Chilean waters, induced to surrender by display of su-
perior force and brought back under duress, the question
arises whether or not such action on the part of the United
States was allowed by the laws of nations. After the ex-
amination of many authorities on international law and
numerous decisions of the courts, we are of opinion that the
United States committed an act for which they are liable in
damages and for which they should be held to answer.”
Citing Field's International Code, sec. 326; The Appollon, 9
Wheaton, p. 361; 4 Cranch, p. 239.
The Commission then says:
“In view of these authorities, and others that might be
cited, we are of opinion that the South American Steamship
Company has a claim for extraordinary repairs of machinery
and boilers made necessary by the long voyages to and from
San Diego. We do not deem it necessary at this time to
examine the other items of the damages claimed. If any
single item in the list constitutes a valid claim for damages,
the demurrer cannot be sustained. We therefore decide
that it should be overruled and the respondent required to
answer.”
A general denial was filed by the United States and testi-
mony on the part of Chile was taken in Chile, but not arriv-
ing before the expiration of the Commission there was no
consideration of the case on its merits by it.
107
GRACE BROTHERS & Co. \
2). No. 19.
THE REPUBLIC OF CHILE. S
The said claimants represent that the British barque Lily
Grace sailed from San Francisco January 26, 1880, for Cal-
lao, Peru, laden with an assorted cargo for account of Grace
Bros. & Co., and arrived at Callao in April of the same
year. i
The Chilean squadron was at this time blockading the port
of Callao and refused to allow the Lily Grace to enter that
port. They examined the ship's papers, and, after finding
them genuine and free from fraud, the said authorities per-
mitted her to proceed to the nearest unblockaded port in
Peru, viz., the port of Ancón, to which she proceeded. But
the Chilean cruiser Loa was despatched after her, arrested
her, brought her back and anchored her at the Island of
San Lorenzo, and on the 16th of April, 1880, placed a guard
upon her under the pretext that she had on board contra-
band of war.
That the cargo was partly removed and discharged on the
vessel's upper deck and in leaky launches. Finding nothing
contraband, the cargo was restowed, but, by reason of the
wastage and the grain being badly damaged by sea-water
and placed on top of the grain stowed below, the cargo was
damaged to a considerable extent.
During the delay the claimants offered to guarantee that
there was no contraband cargo on the vessel, and offered to
have the cargo discharged under the supervision of any
officer of the American or English fleet that they might
name, and that if anything of a contraband claracter was
found the ship and cargo should be delivered back to the
Chileans, and that the Chilean Government would be held
for all losses and damages resulting from the unlawful de-
tention of the ship and her cargo.
That upon the arrival of the vessel at Ancón the cargo
108
consisting of wheat, flour, and barley was found to be
seriously damaged, nearly all the bags broken from rough
and careless handling, and short of their original contents,
all of which was caused by the wrongful removal, examina-
tion, and replacement of the cargo by the Chilean authori-
ties, to the damage of claimants in the sum of £1,885 48.
and 10d.
That by reason of the delay and the subsequent blockad-
ing of the port of Ancón the vessel was compelled to
proceed to Chancay and there land heavy machinery, part
of her cargo, which had to be transported from the hills to
its destination at the great expense of £2,000.
That, by reason of the premises, they were damaged in
the sum of £3,202 8s. and 5d. -
Testimony was filed and the case submitted on the part
of the United States on December 23, 1893.
Chile filed a motion to dismiss on January 24, 1894, fur-
ther note of which will be made in case No. 29.
2)
GRACE BROTHERS & Co.
tº No. 20.
THE REPUBLIC OF CHILE.
The memorialists represent that they had purchased the
cargo of coal of a British barque Alice Ritson, then due at
Valparaiso under charter to discharge the coal at that port,
or any other port not north of Pisagua. The vessel ar-
rived off Iquique on the 8th of April, 1879, which was then
blockaded, and she continued her course to the unblockaded
port of Pisagua and prepared to discharge the cargo, but
before any of the coal had been actually discharged the
Chilean squadron arrived and began to bombard Pisagua,
and for the purpose of saving the vessel she was cleared for
the port of Callao. But Captain Simpson, of the Chilean
ironclad Almirante Cochrane, sent an armed boat crew on
board the Alice Ritson, took possession of her, declared her
cargo of coal a prize, and towed her back to Toluique. The
109
captain applied for protection of a British war-ship, which
resulted in the release of the Alice Zeitson.
That upon nearing the port of Callao, on the morning of
the 30th of April, a dense fog was encountered, and the ves-
sel drifted upon the rocks and, with the cargo, became a total
loss.
That the loss of the Alice ſeitson and the cargo of coal was
due to the unjustifiable seizure and detention of said vessel
by the Chilean naval forces, whereby they prevented the
vessel from discharging the cargo at Pisagua or Callao,
neither of which was blockaded at the time of said seizure
and detention. They therefore ask judgment for $3,989.20,
United States gold, being claimants' proportion of the value
of the coal, with interest.
Testimony was filed, and the case submitted on the part
of the United States on the 23d of December, 1893. On Jan-
uary 4, 1894, Chile filed a motion to dismiss, which will be
further noticed in No. 29.
GRACE BROTHERS & Co.
Q). No. 21.
THE REPUBLIC OF CHILE.
The claimants represent that on the 16th day of July, 1878,
the Government of Peru entered into a contract with the
Compañia Salitrera del Peru by the terms of which the full
control and administration of the nitrate of soda deposits of
the province of Tarapacá and the export thereof for the ac-
count of the Peruvian Government was legally, exclusively,
and fully conceded to said company for a term of five years
from the 16th of July, 1878, with full power to make con-
tracts and arrangements in regard thereto.
That said company, on the 8th of March, 1879, as the legal
representative of the Peruvian Government, entered into a
contract with claimants for the consignment of nitrate of
soda and the procurement of funds for the object herein
stated. The provisions of said contract are set out in the
110
memorial, and the memorialists claim that they, by said con-
tract, were constituted the sole consignees of all the nitrate
of soda in European and other markets of said Compañia
Salitrera del Peru.
That a mortgage lien was constituted in favor of the Bank
La Providencia, with the consent of Peru, upon all the Gov-
ernment nitrate property in Tarapacá, which lien was trans-
ferred to the Compañia Salitrera del Peru, and by it to the
memorialists, with the consent of the Government, as a guar-
antee of their said contract ; that the contract and mortgage
lien antedated the declaration of war between Chile and
Peru ; that memorialists in all respects complied with their
contract.
That on the 5th day of April, 1879, Chile declared war
upon Peru, and proceeded to take possession of the province
of Tarapacá by force, and held the same until the 20th of
October, 1883, when, by a treaty between Chile and Peru,
the said province of Tarapacá was ceded to Chile, and all the
rights, property, and interests of memorialists, including their
mortgage lien, were seized and appropriated by the Chilean
Government to its own use and treated as its own property.
That when Chile seized the province of Tarapacá by force
of arms and subsequently acquired it by treaty stipulations,
it took such territory subject to the claims of prior liens of
claimants, and became directly responsible for the losses and
damages accruing to claimants by reason thereof.
The memorial specifies the character and items of losses
under said contract, and claims damages therefor, with in-
terest, in the sum of £49,391 3s. 7d.
Testimony was filed by the claimant, and the case closed by
the United States December 23, 1894. On January 4, 1894,
Chile filed a motion to dismiss, which will be further noted
in case No. 29.
111
WILLIAM R. GRACE & Co. R
Q). . No. 22.
THE REPUBLIC OF CHILE.
The claimants, William R. Grace and Charles R. Flint,
copartners in New York city under the firm name of Wm. R.
Grace & Co., American citizens, represent that on January
17, 1879, through the agency of Grace Brothers & Co., they
entered into a contract with Peru by which said Govern-
ment consigned exclusively to them for five years from the
26th of November, 1877, the sale of nitrate of soda in the
markets of the United States and Canada, and they agreed
to export not less than 400,000 quintals of nitrate a year,
with the option to increase it to 500,000, &c., setting out
the details of the contract; that the claimants proceeded
to carry out the contract and spent large sums of money
therein and advanced large sums of money to the Govern-
ment of Peru before any shipment was made, and in all
respects carried out their contract until the Chilean forces
made it impossible to so do. Said contract of business was
established before the declaration of war between Chile and
Peru; that on the 5th of April, 1879, Chile declared war
upon Peru, took military possession of Tarapacá and held
possession until the 20th of October, 1883, when Peru ceded
said province to Chile ; that Chile appropriated all of said
property to its own use, and by the seizure and appropria-
tion of the said nitrate of soda deposits rendered claimants’
contract ineffective and impossible of execution, to their
great loss and damage. The memorial sets out the particu-
lars of their losses, and claims, with interest, $1,076,764.67.
Testimony was taken in support of the case, and it was sub-
mitted on the part of the United States on the 23d day of
December, 1893. January 4, 1894, Chile filed a motion to
dismiss, which will be further noted in case No. 29.
112
PATRICK SHIELDS
(). No. 23.
THE REPUBLIC OF CHILE.
The memorialist represented that he was born in Ireland,
and has resided in the United States for the past eighteen
years; that during that time he served many years in the
mercantile navy of the United States. That he is an Amer-
ican seaman, but up to this time has not been formally
naturalized as an American citizen. That in August, 1891,
he shipped as an American seaman on the American steamer
Aſeeweenaw, a regularly documented and legally registered
vessel, sailing under the American flag. That on the 24th
day of September the Keeweenaw put into Valparaiso, Chile,
for repairs. That memorialist obtained twenty-four hours'
leave of absence and went ashore. About six o'clock P. M., in
company with one Andrew McKinstry, an American seaman,
he was sauntering through the streets of said city conduct-
ing himself in a proper and inoffensive manner, and was ar-
rested without cause or provocation by the police of said
city and kept in confinement until nine o'clock in the morn-
ing of October 25th, when he was discharged without any
complaint having been made against him. That he was a
short time thereafter rearrested and imprisoned until the
next day, and, although he repeatedly asked the authorities
to bring him before the American Consul, they refused.
That on the 26th of October he was removed from jail
and compelled to perform forced labor until five o'clock in
the evening on the streets of Valparaiso as a scavenger.
That, it being pointed out that he was an American seaman
and belonging to an American ship then in the harbor of
Valparaiso, the jail officials and soldiers immediately com-
menced maltreating and brutally ill-using him, repeatedly
striking him upon the head and various parts of the body,
knocking him down with a heavy street-broom, and when on
the ground he was repeatedly kicked by the said police and
113
officials on various parts of the body with unparallelled
brutality.
That on the next day he was compelled to work as a
scavenger, grind corn, clean up horses, and do other forced
labor from daylight until dark. That he was again repeat-
edly beaten on the streets and in the prison-yard, and that
when he stopped working, through pain and fatigue, he was .
beaten and kicked and otherwise brutally used. About five
o'clock he was turned out of prison, without any reason
being assigned for his imprisonment, or excuse for the bar-
barous treatment. -
That, having failed to reach his ship, the next morning he
was again arrested and imprisoned without cause by the
police of Valparaiso, and compelled to clean horses, etc., as
before. That he escaped, was recaptured by the police and
jail officials, and brutally beaten by a policeman, being struck
by said policeman nearly every yard for nearly a quarter of
a mile, and when in the prison-yard was beaten with a club
until he was insensible, causing profuse hemorrhage and
bleeding at the nose and ears.
On the next day he was compelled to grind corn in the
prison-yard for five or six hours, and having asked to be re-
lieved to get a drink he was again struck and beaten on the
head with a long-handled baton, and compelled, though
weak and exhausted from his wounds, to carry an iron bed-
stead, weighing about 150 pounds, for a distance of three or
four miles through the town. That the brutality of the
Chilean officers was repeated on the 30th and 31st of Oc.
tober. That he was rendered so stupid and prostrated by
the ill-treatment that he was sent to another prison and con-
fined until November 2, 1891, when he was discharged
without any hearing by the magistrate or other official, and
merely told to go away; and as a result of such treatment
he is now a confirmed chronic epileptic and paralytic patient,
not able to earn a living, but requiring medical attendance
and nursing. That the wrongs he suffered were produced
114
by the malice of the Chilean police and other officials to-
wards him as a citizen or seaman of the United States.
That he has never been informed of any charges against
him for violation of the law, nor any cause for his imprison-
ment and cruel treatment. That the facts were promptly
brought to the notice of the Department of State, as will
appear from despatches of Minister Egan, dated November
7, 1891, and he asks judgment for $100,000 for such dam-
ages and for costs and charges.
Chile demurred generally to the memorial on the ground
that as claimant states that he was born in Ireland, and
that he is an American seaman but has not been formally
naturalized as an American citizen, under the ruling made
by the Commission in the case of Charles G. Wilson, No.
11, the memorial must be dismissed upon the grounds that
the said Shields is not a citizen of the United States, and
therefore does not come within the terms of the treaty, nor
within the jurisdiction of the Commission.
In reply to the demurrer, the Agent for the United States
stated that it was distinctly shown that the claimant was an
American seaman, on a regularly documented and registered
American vessel sailing under the American flag at the time
the injuries complained of occurred. He referred also to
the message of President Harrison to Congress, dated Janu-
ary 25th, in which he says: -
“On information that Patrick Shields, an Irishman and
probably a British subject at the time, a fireman of the
American steamer Aſeev, enaw, in the harbor of Valparaiso
for repairs, had been subjected to personal injuries in that
city, largely by the police, I directed the Attorney-General
to cause the evidence of the officers and crew of that vessel
to be taken upon its arrival in San Francisco, and that testi-
mony is also here with transmitted. The brutality and even
savagery of the treatment of this poor man by the Chilean
police would be incredible if the evidence of Shields was not
supported by other direct testimony and by the distressing
condition of the man himself when he was finally able to
115
reach his vessel. The captain of the vessel says: ‘He came
back a wreck, black from his neck to his hips from bleeding,
weak and stupid, and is still in a kind of paralyzed condi-
tion, and has never been able to do duty since.” Claim for
reparation has been made in behalf of this man. While he
was not a citizen of the United States, the doctrine long
held by us, as expressed in the Consular Regulations, is :
‘The principles which are maintained by this Government
in regard to the protection as distinguished from the relief
of seamen are well settled. It is held that the circumstances
that the vessel is American is evidence that the seamen on
board are such, and in every regularly documented merchant
vessel the crew will find their protection in the flag that
covers them.’”
The Agent for the United States also cited Consular Regu-
lations, 1888, section 172, page 56, which provided :
“The shipment of the seaman in a port of the United
States as an American citizen is to be held prima facie evi-
dence that the seaman is by birth, or naturalization, a citi-
Zen, and when the nationality does not appear from the
crew-list it will be presumed that they are citizens of the
United States.”
Also section 202, page 66, which provides:
“A foreign seaman, having shipped on an American ves-
sel, at a port of the United States, is entitled to extra wages
on his discharge at a foreign port in all cases where a sea-
man who is a citizen should be so entitled, and on such dis-
charge he may be relieved and returned to the United
States. And the quality of the American seaman is retained
by him on his shipment at such port of discharge on an
American vessel, and he may continue to retain that quality
by successive reshipment on American vessels abroad,” &c.
That the ill-treatment of claimant was reported by Mr.
Egan to Mr. Blaine (see page 128 of the Pub. Doc. “Mes-
sage of the President of the United States of America re-
specting the relations with Chile ”). That on the 13th of
August, 1892, Mr. Egan reported to Secretary of State
Foster that the treaty under which the Commission now sits
116
had been negotiated and approved, and made special refer-
ence in such letter to the case of Patrick Shields, stating
that he had called the attention of the Minister of Foreign
Affairs of Chile to that case, and to the provisions of the
United States Consular Regulations, and asked if it would
be necessary to insert a special clause in the convention to
include this case ; that the Minister and also the sub-Secre-
tary of the Ministry of Foreign Relations assured him that
it was not necessary to do so ; that no question would be
raised on this point, and that the rights of Shields as a citi-
zen of the United States would be admitted by Chile before
the Arbitration Tribunal (Foreign Relations, United States,
1892, page 66). An affidavit by Mr. Egan that the facts
stated in that letter were true was also filed in the case. In
view of these facts the Agent of the United States expressed
the hope that the Agent of Chile would withdraw his de-
murrer. If not, he submitted that the Shields case came
within the treaty inasmuch that he was, when injured, in-
vested with all the rights of American seamen to the full
extent that an American citizen seaman could have enjoyed
them.
The demurrer was not withdrawn, and the Commission
sustained the demurrer on the ground that said Shields is
not a citizen of the United States, and does not come within
the terms of the treaty, nor within the jurisdiction of the
Commission.
ANDREW MCRINSTRY }
Q). No. 24.
THE REPUBLIC OF CHILE.
The McKinstry case is similar to the case of Patrick
Shields, except that his treatment was not so brutal, nor was
his case mentioned by President Harrison in his message,
nor by Mr. Egan in his letter relating his understanding with
the Minister of Foreign Relations of Chile.
117
A demurrer was filed, and sustained on the same grounds
as in the case of Patrick Shields.
ANDREW MOSS
Q). - No. 25.
THE REPUBLIC OF CHILE.
Andrew Moss, a citizen of the United States, living in
Miraflores, Peru, states that on the 13th of January, 1881,
after learning the result of the battle of San Juan, he hoisted
the American flag on each of his four houses, and nailed
protection placards on the front of each house, which pla-
cards had been given him by the Honorable I. P. Chris-
tiancy, United States Minister to Peru, and bore the seal of
the United States Legation in Lima. That at two o'clock
on the evening of the 15th of January, 1881, the battle of
Miraflores began, at a considerable distance from the town.
The position of the Peruvian line of redoubts placed the
town out of range or danger of the shots of either army.
The battle finished on the same day, at four o'clock, and on
the 17th of January he obtained a passport from Minister
Christiancy, and on the 18th went to Miraflores. On his
way, before reaching his property, he saw a large house
burning, and one-third consumed at the time, and another
small house smouldering, having recently been burned.
That he found that all his four houses had been burned, and
about fifty soldiers in the vicinity amusing themselves. That
his loss by the Chilean army on January 16th, without
reckoning loss of rents and other damages in the destruction
of his four houses, amounted with interest to $74,092.50,
for which he asks judgment. -
Evidence was introduced by the claimant consisting of the
documents, papers, and affidavits which had been filed in
the State Department of the United States, and the case was
regularly submitted by both sides on the 26th day of March,
1894.
Briefs were filed by the Agent of the United States and the
11S
private counsel for claimant, and by the Agent for Chile, and
the case was fully argued by the Agents of the respective
Governments and the Assistant Counsel for Chile, but the
Commission, for lack of time, could not consider it on the
the merits.
HENRY CHAUNCFY et als.
2). No. 26.
THE REPUBLIC OF CHILE.
This case was submitted by the United States January 24,
1894, but was not submitted by Chile, hence was not con-
sidered by the Commission.
RICARDO L. TRUMBULL )
Q). 2 No. 27.
THE UNITED STATES. Ş
Claimant, a citizen of Chile, sues for professional services
rendered the United States in connection with the extradi-
tion by Chile to the United States of William A. Bushnell
in the year 1889. The matter went into the courts of Chile,
and claimant avers that Mr. Roberts, the American Minister
at Chile, requested him to accept the representation of the
Legation of the United States; that he accepted it and inci-
dentally referred to his remuneration, but was told that
there were “no instructions as to expenses, but to have no
concern in the matter, as he would be paid by the United
States for his services; ” that the case lasted more than six
months and was twice argued before the Supreme Court of
Chile, which decided that the criminal should be extradited ;
that he presented his bill to Mr. Roberts, the American
Minister, who forwarded it to the State Department; that
on the 17th of September, 1889, the Department returned it
to Mr. Egan, the American Minister, with the declaration
“ that the Government of the United States assumed no re-
sponsibility in the premises; ” that the bill was again for-
119
warded through Mr. Egan, Minister of the United States,
when Secretary Blaine replied, stating that the bill had been
forwarded to the State of New York, but that the District
Attorney of that State had stated :
“While it does appear that Mr. Trumbull was named by
Mr. Roberts to represent the Legation in all matters per-
taining to the case before the Chilean courts, yet it is equally
clear that whatever services he rendered were in his capacity
of attorney for the West Coast Telephone Company, and I
feel that I cannot recognize his claim to any consideration
on the part of this State,” .
and Mr. Blaine determined that the matter should be left to
be dealt with between Mr. Trumbull and the authorities of
the State of New York and the West Coast Telephone Com-
pany.
There are other averments in the petition, but those cited
are substantially the basis of the claim, which is for the
sum of $6,000, American gold.
The Agent for the United States demurred generally to
the petition on the ground, first, that under sec. 3732 of the
Iłevised Stat. of the U. S.—
“No contract or purchase on behalf of the United States
shall be made unless the same is authorized by law, or is
under an appropriation adequate to its fulfilment, except in
the War and Navy Departments for clothing, subsistence,
forage, fuel, quarters, or transportation, which, however,
shall not exceed the necessities of the current year;”
that under this law no Minister is authorized to enter into
a contract for legal services in case of extradition which
shall bind the United States; citing Moore's Extradition,
vol. 1, sec. 402, p. 607.
Second. The memorial states that the extradition was re-
quested for a criminal charged with grand larceny in the
State of New York, which State only was concerned ; citing
Moore on Extradition, sec. 399, p. 604.
Third. That the claimant has a complete remedy against
the United States if he can establish his contract, in the
120
Courts of the United States; citing the act in regard to the
Court of Claims, Supplement to the Revised Stat., vol 1, p.
560; sec. 1068, Revised Stat. of the U. S., and sec. 2 of the
act of March 3, 1887, Supplement R. S., vol. 1, p. 559.
That the case did not come within the exceptions in said
laws, because there had been no final adverse action on the
claim by any court, department, or commission authorized
to hear and determine the same.
The Agent of Chile, in reply, claimed that the question
whether Mr. Roberts had or had not authority from the Sec-
retary of State to employ Mr. Trumbull is of no importance
before this Commission. He had been put forward as the
representative of the United States Government, and the
question whether he had authority to make this or any other
particular contract was a question between him and his
superior, the Government of the United States; that as the
United States was the demanding Government in the extra-
dition case, it should pay the expenses; citing Calvo, Droit
International Codifié, art. 400; 7th Opinions of the At-
torney-General, 612; also Moore on Extradition, vol. 1, sec.
395, p. 599. He admits that the courts of the United States
would have jurisdiction of the claim, but insists that as there
now exists a special tribunal to settle the claims of the
citizens of Chile or of the United States against the Gov-
ernment of either country, Mr. Trumbull appears before it
with the same confidence as he would before any court of
the United States if the treaty of August, 1892, had not
been concluded.
The Commission held that sections 3732 and 5278 of the
Revised Stat. of the U. S. “are not applicable to the re-
lations that subsist between the claimant and the American
Minister at Santiago; that the memorialist was not bound to
know those sections or act in conformity with them ; that he
was justified in presuming that the United States Minister
acted in accordance with his instructions from the Secretary of
121
State, and also pursuant to the rule that the expenses of extra-
dition, including fees of counsel, are paid by the demanding
State ; that whether the Minister of the United States ex-
ceeded his authority is of no importance ; he made a promise
in the name of his Government, which according to the rule
of the responsibility of Governments for acts performed by
their agents in foreign countries cannot be repudiated.
Calvo Dict. 11, p. 170; vol. 1, p. 417; Calvo, Droit Int., vol.
1, sec. 417; that as to the argument that the claimant has a
complete remedy in the courts of the United States, it is to
be said that the competency of this Commission to take
jurisdiction of this claim cannot be denied under the au-
thority to settle and adjust amicably all claims of citizens of
Chile and of the United States against the Government of
either country. The demurrer is therefore overruled.
The Commissioner of Chile concurred in the decision so
far as it established the responsibility of the Government for
the acts of its agents, but does not accept without certain
limitations the last point in said decision.
RICARDO L. Twº
Q). No. 28.
THE UNITED STATES.
Claimant, a citizen of Chile and a member of the Chilean
Congress, avers that in February, 1891, he was authorized
by the representatives of the Provisional Government of
Chile to proceed to the United States to purchase arms and
munitions of war; that he arrived in New York, consulted
lawyers as to his right to ship arms, and was informed that
such shipment was not in violation of the laws of the United
States; that he bought from New York merchants 5,000
rifles and 2,000,000 cartridges; that he cabled the Chilean
Government at Toluigue to send one of its steamers to San
Diego, and shipped the arms and munition to San Francisco,
where they were put on board the American schooner
122
Robert and Minnie, which was towed to the island of Cata-
lina, where she was to await the arrival of the Chilean
steamer ſtata. The latter was delayed two weeks, and
although instructed not to enter the port of San Diego, but
to wait outside for orders, want of coal compelled her to put
into San Diego on May 3, 1891; that the presence of the
Robert and Minnie had been discovered, and it was suspected
that the Itata had come to get the arms and munition, which
suspicion led to the ſtata's arrest soon after her arrival in
San Diego. On the 6th of May, 1891, without obtaining
clearance papers, the ſtata weighed anchor and left San
Diego. On the 11th of May, 1891, claimant was arrested,
taken to the Marshal's office, informed he must go to jail
unless he could furnish a bond of $15,000; that he protested
against his arrest without a warrant, and asked by whose
orders he was arrested, and was informed by orders of the
Attorney-General of the United States, for violating the
neutrality laws of the United States; that he gave bond and
was released ; that he telegraphed the facts to Assistant
Secretary of State Wharton, from whom he received no re-
ply; that he was indicted by the grand jury and obliged to
go to Los Angeles to stand his trial, which was postponed
until September ; that the case was again postponed, and
finally, on the 3d of September, tried, and Judge Ross of the
District Court of the United States for the Southern District
of California instructed the jury to find a verdict of “not
guilty.” He quotes an extract from this opinion of Judge
Ross, showing that the prosecution had failed to prove the
case against him. He also quotes from the opinions of
Alexander Hamilton, Justice Story, Attorney-General Speed,
Secretary Blaine, and the Secretary of the Treasury, show-
ing that his action was not in violation of the neutrality laws
of the United States, and says that notwithstanding these
opinions he was placed under arrest, obliged to give
bond, and to stand his trial, when he was acquitted by the
jury; that by the said prosecution and detention he was
123
damaged in his reputation and suffered pecuniary losses;
that he was superseded as confidential agent by Chile on
account thereof; that but for his imprisonment he would
have been appointed Minister to the United States; that on
account of his prolonged absence his business suffered, and
was entrusted to other lawyers, and that he was obliged to
incur heavy expenses, for all of which he claimed $32,500.
The Agent for the United States demurred generally to
the memorial, claiming that by its statements the claimant
was arrested by order of the Attorney-General of the United
States, suspected of having violated the neutrality laws of
the United States; that the matter was regularly investigated
by the proper grand jury; that the evidence was sufficiently
strong to require the grand jury to indict him for such vio-
lation of the neutrality laws, and that within six months he
was regularly tried in the United States court by a petit
jury and acquitted ; that there was no averment of any im-
proper treatment of him while he was under arrest—on the
contrary, he was allowed to give bond and innmediately freed;
that there was no averment of unnecessary delay or anything
improper in any step in the prosecution of his case ; the
sole ground of his claim is that on his trial he was found to
be not guilty and immediately discharged.
Briefs were filed by Agents of the respective Governments
and the case was fully argued by them and by the Assistant
Counsel for Chile.
On the part of the United States it was contended, first,
if the claimant in this case has any right of action against
the Government of the United States, then every person who
is charged with a crime, indicted by the grand jury and ac-
quitted by the petit jury in any State of the Union or in any
|United States court may sue the United States or the State
for damages. Such position would be subversive of justice
and of society.
Second. That the indictment of the party by the grand
124
jury is a defence to the action, as it is prima facie evidence
of probable cause. (Amer. Ency. of Law, vol. 14, p. 67;
Sharpe v. Johnston, 76 Missouri, 660; Peck v. Chouteau, 91
Missouri, 138; 120 U. S. p. —.)
Third. That memorialist was arrested by order of the
highest legal officer of the Government, who is entitled to
the presumption that he did his duty and that the facts laid
before him justified the arrest. No malice or improper con-
duct is charged against him ; and no malice can be attributed
to the Government of the United States.
Fourth. That the United States Statutes require that the
grand jury shall consist of not less than sixteen nor more than
twenty-three persons, and require that no indictment shall be
found without the concurrence of at least twelve jurors. (Re-
vised Stat., sec. 80, p. 151; sec. 1021, p. 190.) That in the
absence of false and fraudulent testimony its finding is con-
clusive on the question of probable cause ; that Mr. Trumbull,
when he came to the United States, became subject to every
law thereof, just as a citizen of the United States, and if he
can recover in this action, any citizen who has been acquitted
of a crime for which he has been indicted can sue the State
or Government for damages; that Mr. Trumbull had no priv-
ileges not accorded to the citizens of the United States, and
that he was liable to the laws of the United States while within
its jurisdiction, citing Wheaton's Int. Law, 8th ed., Dana,
sec. 113, p. 84; Wharton's Int. Dig., sec. 203, p. 503; ibid.,
sec. 203, p. 504; ibid., sec. 203, p. 505; Carlisle v. U. S., 16
Wall. 157. That in the memorial there is no suggestion of
a denial of justice or of a corrupt perversion of judicial pro-
ceedings for the purpose of wrong or oppression, and there
is no averment of malice ; that claimant was regularly prose-
cuted and acquitted, and no action for damages lies for such
acquittal, citing Wharton's Dig., § 205, pp. 505, 506, 507,
509, and § 230, p. 649, and § 203, p. 612.
In reply the representatives for Chile contended that the
claim of Mr. Trumbull is based on his illegal arrest, impris-
125
onment, and detention by the civil authorities of the United
States, and not that on his trial he was found to be not guilty
and immediately discharged; that Mr. Trumbull's enterprise
was known to the United States two months before the action
brought against him on that account was initiated; that his
intention appeared from the beginning as a perfectly legiti-
mate action ; that two Secretaries of State recognized his pur-
pose as such in the documents to which claimant refers, and
that the absence of reason to prosecute him was perfectly
known to the authority that ordered his detention ; that the
allegations justified the legal conclusion that there was not
probable cause for his arrest, and the subsequent proceedings
were unnecessarily harsh ; that the demurrer should be over-
ruled, first, because it was competent for the memorialist to
show no probable cause for his arrest and detention, and,
second, if probable cause existed it was competent for him
to prove that in the proceedings to which he was subjected
due process of law was not observed.
The Commission sustained the demurrer and dismissed
the claim. In the opinion, after stating the averments of the
memorial, they cite sec. 2383 of the Revised Statutes of the
United States, under which Trumbull was prosecuted, and
the decisions of the Supreme Court of the United States,
and Mr. Jefferson, Mr. Webster, Mr. Marcy, Mr. Cass, Mr.
Blaine, Mr. Frelinghuysen, Secretaries of State of the United
States, showing that every person who voluntarily brings
himself within the jurisdiction of the country, whether per-
manently or temporarily, is subject to the operation of its
laws, whether he be a citizen or a mere resident, so long as,
in the case of an alien resident, no treaty stipulation or prin-
ciple of international law is contravened; that under these
decisions it must appear, before claimant can maintain his
claim, that palpable injustice has been done him, or that
he has been deprived of such a trial as a citizen of the United
States would have received if he had been arrested under
similar circumstances and charged with a similar offence.
126
There is no such allegation in the memorial; on the con-
trary, it appears from his own statement that he was arrested
by order of the Attorney-General of the United States upon
suspicion that he had violated the neutrality laws of the .
United States; that he was promptly admitted to bail; that
the evidence against him was sufficiently strong to justify an
indictment by the grand jury; that he was regularly tried
according to law and acquitted by a petit jury under instruc-
tions of the court within six months from the time of his
arrest. He does not complain that due process of law has
not been observed in this case, but that he has been tried
for the violation of the neutrality laws of the United States,
of which offence he was not guilty according to the verdict
of the jury and the judgment of the court. “We have been
unable to find any precedent for this claim. If it is a valid
claim, then it would seem to follow that every person
charged with an offence against the laws and acquitted may
sue the State and recover damages. Every Government that
institutes a criminal proceeding for the enforcement of its
laws would do so at its peril. No Government could long
exist if such a doctrine should be recognized as sound. The
mere statement of the proposition is sufficient to demonstrate
its unsoundness.” They then discussed the question of
probable cause and showed that from his own statement
there was probable cause to believe that claimant was violat-
ing the neutrality laws, and that it was fair to presume there
was sufficient evidence before the grand jury to justify the
indictment found by them, and the indictment itself is suffi-
cient to show that there was probable cause. For these and
other reasons stated but unnecessary to recite, the demurrer
was sustained. - r
GltACE BROTHERS & Co. -
''}. ! No. 29.
THE REPUBLIC of CHILE. t
Claimants represent that they own and were in lawful pos-
session of 419 shares of stock of the Compañia Salitrera del
127
Peru, which represent the nominal value of 129,080 pounds
sterling, at the time of the losses and spoliations complained
of ; that the business of said company existed with Peru
prior to the war between Chile and said Government, and
on account of the violent interference of Chile with the busi-
ness of said company it became necessary for it to adjust
its accounts with Peru, which was done, and the share of
Grace Brothers & Co. for their proportion of the liquidated
balance in favor of said company was 200,693 pounds 1
shilling and 8 pence; that the Government of Peru had
entered into a contract with a Banco de la Providencia by
which it consigned to said bank all the nitrate of soda elab-
orated for or on account of the Government, which owned the
nitrate-producing territory in Peru, the bank agreeing to pay
the cost of elaboration, freight, and all expenses incurred in
marketing the nitrate to meet the service due on certificates
issued by Peru with the former owners of the nitrate grounds
which have been appropriated by law of Congress and
other expenses and advances. The Government in said
contract guaranteed as follows:
“33d. In guaranty of the obligations incurred by the
Government by this contract all the nitrate establishments,
properties, and the nitrate lands that now are or may here-
after become the property of the State in the province of
Tarapacá are hereby specially mortgaged, but recognizing
as prior and privileged mortgage that established in the pur-
chase deeds of the nitrate grounds.”
The said bank was authorized to form a company to carry
out the contract. The Compañia Salitrera del Peru was
so constituted and the rights and obligations of the
bank transferred to it, which thereby had complete control
of the nitrate deposits of Tarapacá and were subrogated to the
mortgage lien given by Peru to said bank; that said com-
pany was performing the contract and entitled to its benefits
when, on the 5th of April, 1879, Chile declared war upon
Peru and took possession of the Peruvian province of Tara-
12S
pacá, seized and appropriated to its own use the nitrate beds
and the nitrate, or manufactured and sold the same, and
continuously and forcibly held possession thereof until the
20th of October, 1883, when Peru conceded said province to
Chile, and all said nitrates were seized and appropriated by
Chile to its own use; that all of the rights of claimants and
their interests therein were utterly destroyed by the acts of
the Chileans, and they were prevented from executing their
contract, and all their rights disregarded ; that when Chile
took said territory it took it subject to the prior claims and
liens of said company and claimants; that by such aforesaid
possession by Chile the said company and the objects and
purposes of said corporation were absolutely and totally de-
stroyed ; that said company was a foreign corporation, not
a citizen of the United States, and never had an office or
representative in the United States; that such corporation
is not qualified to present the claim of memorialists; that
said company has appealed to the Government of Chile for
settlement of its claim, but it has not been adjusted ; that
memorialists’ claim is presented as shareholders of the said
company solely for the purpose of obtaining justice, which
cannot be obtained through the officers or agents of said
corporation before this Commission, and claim damages
with interest, $866,945.99.
Evidence in support of the claim was filed, and the case
submitted on the part of the United States the 23d day of
December.
On the 4th of January the Agent of Chile filed a motion
to dismiss this case and the other Grace cases hereinbe-
fore mentioned, to wit, No. 16, No. 19, No. 20, No. 21, and No.
22, for the reason—
“ that said Grace Brothers & Co. and William R. Grace &
Co. are justly charged with having given aid and comfort to
the enemies of Chile during the years 1880 and 1881 and at
other times, as appears from the documents filed in the
archives of this Commission numbered from 6 to 15, inclu-
129
sive, and printed under the head of ‘Documentary evidence
on behalf of the respondent Government, filed December
29, 1893.”
With this motion the said Agent filed certain documentary
evidence alleged to have been copies from the archives of
|Peru. .
The Agent of the United States asked the Commission to
strike from the files the motion to dismiss on the ground, first,
that the defendant Government had entered a general denial
on the merits, and that the claimants had closed their cases
in chief without objection on the part of the respondent ;
second, that whether or not claimants gave aid and comfort
to the enemies of Chile was a matter of defence, the evidence
of which could be produced by respondent under the rules;
third, that the claimants had closed their cases and re-
spondent could not thus single out a single issue, file evidence
in support of it and move to dismiss the case without giv-
ing the claimants an opportunity to produce evidence in re-
buttal; fourth, that if they could thus single out and try on
motion one defence, they might do the same ad infinitum
and thus prolong the case beyond the life of the Com-
mission ; fifth, that they could not thus try the case by
piecemeal, but must submit all of their defence on the
merits at once, regularly closing their case and permitting
rebuttal testimony under the rules.
On the other hand, the Agent for Chile claimed that it
was a question of jurisdiction, which could be raised at any
time and which the Commission was bound to consider when-
ever their attention was called thereto. These positions
were fully argued by the Agents of the respective Govern-
ments and the Assistant Counsel for Chile.
On the 9th of January, 1894, the President delivered the
opinion of the Commission, holding that the question raised
by the motion to dismiss was a question of jurisdiction which
should be considered and decided before proceeding further
130
in the adjudication of the claims; that the claimants should
have an opportunity to file testimony upon the charge of
having given aid and comfort to the enemies of Chile, and
ordered that weeks be allowed to produce testimony
upon the charge referred to.
Subsequently testimony was taken on the part of the
claimants in reply to the charge that they had given aid and
comfort to the enemies of Chile.
Afterwards the motion to dismiss came on to be heard and
briefs were filed by the private counsel of claimants and the
respective Agents of the two Governments, and the matter
fully argued by the said Agents and the Assistant Counsel
for Chile.
The evidence presented on behalf of Chile was a copy
of a general account current between Peru and W. R. Grace
& Co., of New York, which showed certain bills presented
by Grace & Co. to Peru and approved by it pursuant
to the decrees of 30th of September. This account showed
that Peru was debited on the 15th of January, 1881, to a
balance due by the Supreme Government on a cargo of coal
on the ship Andrew Johnson ; and in December, 1880, and
January, 1881, with provisions and naval supplies furnished
the Peruvian squadron ; and in October, 1880, to balance of
invoices for wire and electric batteries for the reserve corps
of the army; and in March 18, 1881, to salaries to a me-
chanic, Charles E. Pettié, under contract to remodel Reming-
ton Minie rifles; and in December 31, 1880, to the amount of
a draft drawn by the Minister of Peru, protested in Paris
and paid by Grace Brothers; and on February 17, 1881, to
amount paid for the bills of the special commissioner for the
purchase of arms in the United States; and June 25, 1880,
to payment made to the Consul General in San Francisco to
institute proceedings for the embargo of nitrate laden at
Tarapacá by the Chilean authorities; and in December,
1881, for certain insulated wire and electric batteries; on
July 30, 1880, to the value of three launches loaned the
131
Supreme Government and lost in the blockade of Callao; and
On October 15, 1881, to the amount furnished the commis-
sioner of Peru in the United States for the purchase of
arms, and ordered to be charged to this account by the
Supreme decree of October 15, 1881. There were a number
of other items, but they were similar to those quoted. The
account ran to January 1, 1886, and showed a balance then
due W. R. Grace & Co. with interest, of $116,577.09.
Accompanying this account were copies of letters or peti-
tions from W. R. Grace & Co., asking credit by Peru for the
amounts and explaining said items. These letters ran from
September 30, 1881, up to May 19, 1885, and the credits
were allowed from time to time by decrees of the Govern-
ment of Peru. These letters showed that the claimants had
paid drafts drawn by the officers of Peru for the purchase of
arms, expenses of litigation about nitrate, and for the pay-
ment of legal fees in such cases, and for the payment of ex-
penses of the consular agent of Peru, and for the payment of
the salary of a Mr. Pettie for remodelling rifles. In one letter,
dated March 23, 1881, they say:
“In this case, Mr. Minister, as in all others, we came for-
ward in all willingness with our services and money, and we
now permit ourselves to include in this note the account we
have against the Supreme Government,” &c.
Said letters also referred to the other items of the account
and claimed credit therefor. The documents also show that
they furnished provisions and naval supplies to the national
squadron, naval dependencies and batteries of the port dur-
ing the month of January, 1881. In the letter of March 23,
1881, to the Government, claimants say:
“In July of last year we delivered to the headquarters of
the navy 10 lighters belonging to us to be employed in the
defence of the Darsena Mole, as appears from the communi-
cation from headquarters 28th of July last.”
Three of the lighters (launches) were destroyed and claim-
ants asked credit for the value thereof in their account with
Peru. In so doing they say:
132
“We transmit your Excellency a bill for the value of said
three lighters, which without any remuneration whatever we
gave over to the service of the Government during the long
time that they were all suffering more or less injuries of
considerable extent and for which we make no charge to
the Supreme Government.”
In another letter, of January 7, 1885, the claimants again
called attention to these three lighters, asking pay for the
loss thereof, and on the first of August, 1885, Peru ordered
an investigation of the loss of the lighters, and finally al-
lowed the credit. This is the substance of the evidence
offered by Chile in support of the motion to dismiss.
The evidence for claimants against the motion was––
First. The whole of the account current, a part of which
was offered in evidence by Chile. This, with the oral evi-
dence, showed that, beginning in 1868, long prior to the war
between Chile and Peru, the claimants had furnished articles
to the Peruvian Government and navy, and from 1877 these
articles were supplied in pursuance of a contract between
Peru and claimants. During the war they continued to ful-
fil their contract by furnishing these articles until the
Chileans captured Callao, and then they supplied the Chilean
navy with same articles under a similar contract. The
claimants were engaged in a legitimate business and dealt in
the same manner with the Chileans and the Peruvians. It
further appears that claimants succeeded Olyphant & Co.,
who had a contract with the Government of Peru for the re-
ceipt and transportation of nitrate of soda to the United
States and Canada. Olyphant & Co. failed, and Grace &
Co. were required to take charge of all the nitrate that had
been received by Olyphant, together with that which had
been received and transported under the terms of their own
contract, and to account for the same to said Government.
In making out the account Wm. R. Grace & Co. charged
themselves with the proceeds of such nitrate, and credited
themselves with amounts of every description due the claim-
133
ants from Peru. In the settlement of the accounts these
items were allowed to claimants by judgments of the account-
ing officers of Peru. The documents filed by the respondent
show that these accounts were “judgments on the account
current of W. R. Grace & Co., of New York, with the Govern-
ment of Peru relating to the consignment of nitrate during
the years 1878 to 1886.”
Claimants further showed that the item for cargo of coal
was simply sold by claimants on commission—an ordinary
commercial transaction. The articles furnished to the Peru-
vian navy consisted of oils, paints, canvas, provisions, and
things of that kind, which had been supplied by claimants in
time of peace under a contract existing for years before the
war between Chile and Peru, and were delivered in the ful-
filment of said contract, as a mere commercial transaction,
without any intent to give voluntary aid and comfort to the
enemies of Chile. The telegraph wire and batteries were
shipped by W. R. Grace & Co. at the expense of Peru, and
the cost charged to the Government in its nitrate accounts.
As to the money paid Pettie for repair of guns, it was shown
that Grace & Brothers guaranteed to pay and did pay his
salary in American gold out of the funds of Peru in their
hands. Claimants had no interest whatever in the guns or
the repairs. The same was the fact in regard to all the
other items paid by Grace & Brothers. The payments
were made from money in the hands of Grace & Co. arising
from the sale of nitrates which had been shipped to them
prior to the war between Chile and Peru, and the proceeds
belonged to Peru, and the payments were made on the orders
of the Government of Peru.
It appeared that Lima was captured January 17, 1881,
and Chile practically after that date had possession of the
entire country, although peace was not declared till 1883;
but the majority of the items in the account complained of
by Chile were paid after that date, there being only mine
items prior to the 17th of January, 1881.
134
As to the value of the three launches, the evidence showed
that they were forcibly taken by the Government of Peru
and used in the defence of Callao, and were not loaned or
voluntarily given by the claimants at all; that the expres-
sions used by Grace & Bros. of friendship to Peru in their
petitions for the allowance of these claims in their account
current with Peru could not alter the facts as they existed
in 1880. -
It was further shown that when Grace & Brothers claimed
the return of seven of the ten lighters from the Chilean Ad-
miral after he had captured Callao that Lynch accused the
house of Grace & Co. of having violated its neutrality in
connection with its relation with the Government of Peru,
and threatened to put the members thereof in prison. The
relations of the firm with the Government of Peru were ex-
plained to them and an investigation demanded. Admiral
Lynch commissioned some Chilean civilians, who had ac-
companied him, to investigate the matter and afterwards
gave an order to Grace & Co. for the return of the
launches. Subsequently Admiral Lynch took possession of
Some engines and cars which belonged to the claimants and
used them, and afterwards paid claimants for the property.
The petitions of Grace & Co. as to their willingness to come
forward with services and money were shown to have been
made in connection with the fact that they had a running
account with Peru ; that the money was not furnished by
claimants with the intention of purchasing arms or muni-
tions of war, but for the purpose of paying balances due on
purchases which had already been made and on the arms
forwarded to Peru, and from the proceeds of nitrate which
they held to the credit of Peru. These petitions bore date
from March 23, 1881, to October 5, 1886, after the fall of
Tima, when the war between Chile and Peru had practically
closed ; that the firm of W. R. Grace & Co. was a New York
house, and that the firm of Grace Brothers & Co. was a branch
house thereof, and that claimants at the incipiency of the
135
war advised with the Secretary of State of the United States
as to the course they should pursue in order to comply with
their neutral duties, and strictly followed the advice of that
official; that all of the payments were made reluctantly, with
caution and hesitation, in order to prevent an overdrawing
by Peru of the amount of their funds already in claimants'
hands from the nitrate proceeds or of proceeds anticipated
and approximated by them from said source. It was also
shown by several witnesses that claimants strictly preserved
their neutrality, and that special care and attention were
shown Mr. J. W. Grace and his family by General Lynch
and the other Chilean officers after the capture of Lima.
It was also shown by a witness who was at the head of
the office of the private war service of Peru that the claim-
ants were looked upon with suspicion by the Peruvian au-
thorities, the witness saying :
“I know this, that the Dictator himself and all the officers
of the Government were as much afraid of foreigners as of
Chileans. They were suspicious of foreigners because they
knew they had no interests at stake such as Peruvians had.
They had no reason to be sentimental about it.” Again he
says: “I tell you we considered them next to our enemies.
I am speaking of the beginning of 1880 or the end of 1879.”
The account current showed that on December 31, 1881,
nearly a year after the capture of Lima, there was a large
balance in favor of the Supreme Government of Peru in the
hands of claimants.
It was also shown that this question of the giving aid and
comfort to the enemies of Chile by the claimants was never
raised by any Chilean officer after the investigation that was
ordered by Admiral Lynch when Lima was first captured until
these claims were filed before this Commission.
In support of the motion to dismiss, the representatives of
Chile contended: First. Whenever a neutral resident or non-
resident voluntarily furnishes to a belligerent articles that
are contraband of war, he thereupon gives aid and comfort
136
to the enemy, and that without any motive or consideration
which influenced his action. Second. A neutral may fur-
nish articles to a belligerent which, although not contraband
of war by the rules of international law, may yet so give aid
and comfort to that belligerent as to subject the neutral to
the penalties which may follow a neutral who gives aid and
comfort to a belligerent. Third. Any voluntary act which, if
performed by a subject of a Government in time of war in
aid of or in behalf of a public enemy of that Government, will
constitute the crime of treason, would, if done by a neutral
in aid of a belligerent, be an act of aid and comfort to that
belligerent. Fourth. Whenever a neutral is in the employ-
ment of a belligerent under a contract, by which he fur-
mishes supplies to the belligerent, he gives aid and comfort
to said belligerent, and that without regard to the character
of the supplies so furnished, whether they were or were not
contraband of war. Fifth. Whenever any overt acts are
committed which in their natural consequence would aid the
belligerent, then, in contemplation of law, aid and comfort
are given. f
To sustain these points they cited Phillimore on Int. Law,
vol. 3, paragraphs 130, 238, 315, 318, and 604; Dana’s
Wheaton, pars. 435, 438; Lawrence's Wheaton, pp. 567,
569, 576, 577 ; Le More cases, French and American Claims
Commission, 176; Peterhoff, 5 Wall. 28; Hanauer v. Doane,
12 Wall. 342; Carlisle v. United States, 16 Wall. 147; Sprott
v. United States, 20 Wall. 459; Young v. United States, 97
U. S. 39; Statutes of the United States vol. 12, p. 596, p.
200, section 16. -
On behalf of the United States it was claimed, first, that
none of the items mentioned in the account were under the
circumstances contraband; that belligerents have no right
to interfere with trade within the jurisdiction of a
neutral State, there a neutral may sell all sorts of goods,
even including fire-arms, and conduct all kinds of business
transactions with opposing belligerents subject to the con-
137
fiscation of the contraband goods when seized outside the
neutral territory. All of the important items in the docu-
mentary evidence related to transactions that took place with
W. R. Grace & Co. in the United States, and come within the
rule of business transactions in a neutral State. (Young v.
|United States, 97 U. S. 63.) Treaties between the United
States and South American countries, including that between
the United States and Chile (which has been abrogated), were
quoted to show that none of the articles were enumerated as
contraband in said treaties, and that all other articles not
enumerated were held and considered as free and the sub-
jects of free and lawful commerce; that the sale even of
contraband goods to Peru would not have been voluntarily
giving aid and comfort or a violation of the neutrality laws
by the claimant. If the claimants had transported arms or
money to either belligerent it would not have been a breach
of neutrality. Wharton's Int. Digest, vol. 3, sec. 391 et seq.;
Boyd's Wheaton, p. 653, sec. 501 e, Mr. Jefferson, Secretary
of State, Wharton's Digest, vol. 3, p. 510; Alexander Ham-
ilton, ibid.; Mr. Pickering, Secretary of State, ibid.; Mr.
Carpenter, in the Senate of the United States sustaining the
report of the Senate Committee, ibid.; The Report of the
Committee of the Senate, May 11, 1872; Secretary of State
Fish, Wharton's Digest, ibid., 514; Secretary Evarts, ibid.,
p. 515; The Bermuda, 3 Wall, 514; The Florida, 3 Bene-
dict, 452 ; 1 Kent's Commentaries, 142; Wharton's Digest,
section 393, p. 520; Secretary of State Clay, ibid., 520 and
521; Santissima Trinidad, 7 Wheaton, 283 ; Wharton's Int.
Dig, sec. 404, p. 658.
That it is clear there was no breach of neutrality by the
claimants; that the words in the treaty, “not in the service
of the enemies of Chile, or voluntarily giving aid and com-
fort to the same,” must be construed to mean either active
service in the navy or army of the enemies of Chile, or overt
acts, voluntarily performed, which gave aid and comfort to the
same, and nothing short of the violation of the duties of a
138
neutral citizen could have been intended by either contracting
Governments to deprive the claimants of the right to be heard.
Nothing short of a violation of international or municipal
law by the offending claimants in their acts of service or aid
and comfort to the enemies of Chile could prevent such
claimants from being heard by the Commission ; that the
term “voluntarily giving aid and comfort’ is used in Article
III, sec. 3, of the Constitution of the United States in the
definition of the crime of treason, and was ingrafted into the
“captured and abandoned property act” (12 U. S. Statutes,
820) by Congress, and applied to the property of persons in
insurrectionary territory who gave aid and comfort in the re-
bellion. The question has frequently come before the Court
of Claims in the 2d, 3d, and 4th reports of that court, and
was generally decided in the favor of claimants, except in
a few cases where the acts of claimants were overt acts of
disloyalty equivalent to treason.
That under the doctrine of the case of Young v. United
States, in order to bring an alien within the definition of aid
and comfort, he must have done that which would have
made him a traitor, if he had owed allegiance to the United
States; that all of these cases were constructions of the non-
intercourse act of Congress, July 13, 1861, which forbade
commercial intercourse between citizens of the insurrec-
tionary territory and citizens of the loyal States unless with
the permit of the President, and were decisions of munici-
pal and not international law.
In the treaty for the French and United States Claims
Commission the same terms were used, and in the Le More
case (French and American Claims Commission, p. 111)
it was held that the claimants were not guilty of giving aid
and comfort to the enemies of the United States where they
delivered under contract to the Confederate authorities six
hundred and nine bales of gray cloth, of the value of $405,-
483.08, and accepted a receipt therefor from a Confederate
officer. The gray cloth was furnished voluntarily for the use
139
of the Confederate army and was an army supply. The Com-
mission held that this was not giving aid and comfort to the
enemies of the United States, and awarded them damages on
account of imprisonment growing out of the transaction.
(See also Boyd's Wheaton, p. 561, sec. 424; Phillimore, vol.
3, app., p. 928; Kennett v. Chambers, 14 Howard, 38;
Wharton's Int, Dig., sec. 390, p. 508; Hall's Int. Law, sec.
216.)
In view of the testimony and the authorities cited it was
contended as follows:
1st. That the payments made by W. R. Grace & Co. to
Peru were made out of funds in their hands belonging to the
Peruvian Government. The fact that that Government was
at war with Chile did not release the claimants from their
obligation to pay their debts to Peru, either directly or on
the order of the Government of that country.
2d. That the funds in the hands of W. R. Grace & Co.
arose from commercial transactions between it and Peru prior
to the breaking out of the war between Peru and Chile.
Such state of war could not alter the commercial relations
between the parties.
3d. That all of the articles complained of were furnished
by claimants to Peru in compliance with a contract entered
into between them and the Government of Peru prior to the
breaking out of hostilities between Chile and Peru, and their
contractual obligation to perform that contract continued
notwithstanding such war. -
4th. That the articles complained of and mentioned in
the schedules and the document of respondent were not
contraband of war. Nor is there any evidence showing that
they became contraband of war.
5th. That claimants, being neutral citizens of the United
States, a friendly country to both Chile and Peru, had a
right to carry on their commercial business with the Gov-
ernment or citizens of either the belligerents without molesta-
tion.
140
6th. That, even though the articles were contraband, the
only penalty was the peril of seizure if captured in transitu
by the Chilean Government. That the penalty did not go
beyond the contraband goods and attach in any way to the
person of the neutrals or to their goods not contraband.
7th. That the evidence shows that claimants were not
only willing, but actually did sell the same articles, without
restriction, to the Republic of Chile during said war.
8th. That the commanding officer of the victorious Chilean
forces openly charged the house of Grace Bros. & Co. with
having given aid and comfort to the Peruvians, and threatened
to confiscato certain of their property as being enemies of
Chile, but upon investigation of the charge not only revoked
his threat, but returned the property to them, and after-
wards paid them for other property which he had seized and
used in military operations. That by the conduct of the
representative of its armies the Government of Chile is
estopped to set up a breach of neutrality on the part of the
claimants in these actions.
9th. That the important letters and applications on which
the Agent of Chile relies to establish aid and comfort to the
enemies of Chile were written long after Chile had captured
Lima, and when the war had practically ended.
The majority of the Commission, Mr. Claparède and Mr.
Gana, sustained the motion to dismiss; Commissioner Goode
dissenting. Among other things, the majority said:
“According to the terms of Article 1 of the Convention of
Santiago, no parties may appear who have given voluntary aid
and comfort to the enemy of the respondent State. The ques-
tion here is not an imputed crime, harmful to certain claim-
ants, but a conventional stipulation which limits the field of
action of the Commission, founded on the very just principle
that it would not be proper for the State that has suffered
from the acts of persons who have given aid and comfort to
its enemies to be bound to grant to these the advantages it
has accorded to those who have preserved strict neutrality.
Upon establishing this limitation the contracting parties have
141
not had in view any penalty for acts violative of inter-
national practices; they only and simply refuse to accord a
privilege to those whose voluntary acts have tended to favor
their enemies. The difficulty, then, is to formulate a rule
that shall determine when aid and comfort have been given,
and in what measure neutrals, who, as a rule, do have the
right to maintain commercial relations with the belligerents,
are to be excluded from the benefits aimed at by the treaty
from which this Commission derives its authority, because
of the fact of having continued their habitual commercial
transactions with the enemy, and even those growing out of
contracts.” -
They then cite the third section of the law of the United
States of March 3, 1863, and the treaty between France and
the United States on the 15th of January, 1881, and the
Convention of Santiago of August 17, 1892. In defining
the meaning of the words “aid and comfort ’’ they say: .
“First. In all cases where the aid to the enemy has been
furnished in flagrant violation of international laws or the
rules established by the belligerents in interest, it is undemi-
able that there have been aid and comfort.
“Second. In all cases in which the acts committed would
have involved a crime of high treason if they had been com-
mitted by subjects of a nation in behalf of the enemies
thereof, aid and comfort is established. The same rule
should be applied in cases where alleged acts refer to the
furnishing of articles contraband of war and subject to con-
fiscation had they been seized. * * * The neutral who
may have furnished one of the belligerents articles that may
be considered as contraband has given aid and comfort
thereto, since the furnishing and transporting to the enemy
of articles which by their nature may serve directly or indi-
rectly in the war is considered as illegal. The neutral, in
fine, who has committed an act the natural consequences of
which would be to increase the strength of one of the bellig-
erents to the prejudice of the other has given aid and com-
fort, because if, instead of acting in his neutral character,
the acts committed by him had been in behalf of the enemies
of his own country, he would have made himself liable for
the crime of high treason.”
tº 142
They then say that aid and comfort, according to the
terms of Article 1 of the aforesaid Convention, must be
voluntary, and hold that the furnishing the ten launches
by claimants to the Peruvian Government was not a viola-
tion of their neutral character, and cannot be invoked against
them, because they were forced into that loan. They then
held that compliance on the part of claimants with the con-
tracts which existed previous to the commencement of the
war is not admissible as a defence, saying:
“The state of war is a case of superior force which suspends
and modifies all contracts, returning to the contracting parties
the freedom they had compromised in time of peace. If after
the commencement of hostilities the contracting party persists
in giving aid and comfort to one of the belligerents, he cannot
invoke, as regards the consequences of his acts, the restric-
tion of his free action through contracts existing previous to
.Nº. .M.
the commencement of hostilities. * * * We have shown
that voluntary aid and comfort existed in cases where the
articles furnished would constitute and would be seized as
contraband of war if they were captured on the sea, and in
cases where the resources supplied would involve the crime
of high treason had they been furnished to the enemy of a
nation by a citizen thereof. Within these propositions the
fact that what constitutes contraband of war is frequently
vague and variably laid down by the publicists, and often
the subjects of agreements may give rise to controversy.”
They then held, as there is no treaty between the United
States and Chile to determine the principle governing this
point, resort must be had to impartial juristconsults, and
cited sec. 68 of Rivier, Lehrbuch ºther das volkerecht, giving
his definition of contraband. That under this definition,
without considering whether the acts charged would have
also constituted the crime of high treason if they had been
committed by the citizens of a State in behalf of the ene-
mies thereof, it appears undeniable that claimants were pur-
veyors of naval supplies for the Peruvian squadron, and
that the articles that they sold embraced all kinds of articles
necessary to a ship, from a needle to an anchor; all kinds
143 *
of supplies, food, rope, sails, pitch, anchors, chains, and
other articles; that, in accordance with the principles
expressed by Rivier, many of these articles were con-
traband. They therefore held that the provisions and
naval supplies to the squadron, the electric wires and bat-
teries furnished by claimants to Peru were contraband ar-
ticles; quoting Calvo, Droit Int., sections 2721, 27.22; Mar-
ten's Volkerecht, 2, sec. 132, and Renault, Annuaire d’Institute
de Droit International, vol. 1, p. 370. They also held that
guaranteeing the salary of the mechanic for remodelling the
Remington rifles, the payment of the expenses of the suit in
regard to the nitrate, the payment of the bills of the special
commissioner for the purchase of arms, and the letter of
claimants to the Minister of War of Peru, in which they say,
“In this case, Mr. Minister, as in all the others, we came for-
ward in all willingness with our services and money,” were
all instances of voluntary aid and comfort; and that the
claim “that the payments were made out of funds belonging
to the Government of Peru” cuts no figure, because it appears
that claimants advanced funds of their own to Peru to carry
out its obligations, in the hope of reimbursing themselves
later on from the proceeds of the sale of nitrate, and that
the accounts showed a considerable balance in favor of
Grace & Co. Therefore the motion to dismiss was granted,
and cases Nos. 16, 19, 20, 21, 22, and 29 were dismissed for
want of jurisdiction.
In his dissenting opinion Mr. Commissioner Goode takes
up the items of the account offered by Chile and analyzes
the evidence and states:
“I think that the facts may be fairly stated as follows:
That long anterior to the war, and as far back as the
year 1868, the claimants had furnished the Peruvian Gov-
ernment with naval supplies and provisions; that in the
year 1877 they entered into a contract with Peru under
which they continued to furnish the same articles; that
after the direct declaration of war in April, 1879, and
until the capture of Lima in January, 1881, the claimants
144
continued to carry out their contract with Peru; that
after the Chilean fleet had taken possession of the port of
Callao, and the Peruvian navy had ceased to exist, the claim-
ants entered into a similar contract with Chile, by which
they furnished similar stores and provisions to the Chilean
navy; that the claimants, as general merchants and ship-
chandlers, were engaged in legitimate trade and commerce
with Peru and Chile and with no purpose of extending aid
and comfort to either belligerent ; that the claimants had a
mercantile house in Peru and in the city of New York; that
they had a contract with Peru for the sale of its nitrate in
the United States and Canada, and for furnishing naval
stores and supplies ; that in keeping the account current
claimants charged themselves with the proceeds of the sale
of the nitrate and credited themselves with the prices of the
articles furnished at the request and by the order of Peru.
In other words, that the various items of which complaint is
made were paid for, not with the money of claimants, but
with the money of Peru in the hands of claimants and sub-
ject to the order of Peru; that the claimants observed a
strict neutrality between the belligerents is abundantly
shown by the testimony.”
He then quotes the testimony of the witnesses on this
point. Referring to the letters and petitions of the claim-
ants, he says:
“Certain communications from the claimants addressed to
the Peruvian Minister of State are adduced for the purpose
of sustaining the charge of aid and comfort. Those commu-
nications were couched in polite and complimentary terms,
such as are usually employed in diplomatic intercourse, and
were evidently written for the purpose of making a pleasant
impression upon the Peruvian Minister and securing his
favorable action upon the subject under discussion, but they
are not sufficient to establish the fact that the claimants had
given aid and comfort to the enemies of Chile.”
Citing U. S. v. Irumsden, 1st Bond Rep., p. 5, as to the
meaning of the words “aid and comfort ’’ in the treaty, he
said: .
“It is to be presumed that they were used by the treaty-
making power with reference to the well-established princi-
145
ples of law; unless there be a breach of neutrality there can
be no giving of aid and comfort to a belligerent. If the
claimants, citizens of the United States, have done any act
that amounts to a breach of neutrality towards Chile in her
war with Peru, they have given aid and comfort to the
enemies of Chile, and not otherwise. In other words, claim-
ants cannot be charged with giving aid and comfort unless
they have violated the neutrality laws in their dealings with
Peru. Have they done so 2 I think not. If the claimants
in the regular course of trade had sold to Peru the arms
and munitions of war, the transaction would have been en-
tirely legitimate.” Citing 7 Wheaton, 340, wherein Mr.
Justice Story says: -
“There is nothing in our laws or in the laws of nations
that forbids our citizens from sending armed vessels, as well
as munitions of war, to foreign ports for sale. It is a com-
mercial venture which no nation is bound to prohibit and,
which exposes the persons engaged in it to the penalty of
confiscation.” Citing also Wheaton's Int. Law (Boyd's ed.),
p. 595, which says: “A neutral Government is bound
not to assist a belligerent in any way. On the other
hand, the subjects of the neutral are entitled to con-
tinue their ordinary trade, and when that trade consists
in exporting arms there arises a conflict between the
rights of the belligerents and the rights of neutral subjects.
A Government may not in any case sell munitions of war
to a belligerent, but its subjects may, provided they sell
indifferently to both parties in the war, and provided the
transaction is a purely commercial one, and not done with
intent of assisting in the war animo adjuvadi but simply for
the purposes of gain. The right which war gives to the
belligerent is that of seizing such goods as are contraband
when on their way from the neutral State to his adversary.”
Rent's Commentaries, part 1, vol. 1, and 11th Opinions of
Attorney-General, 451.
He further states that in his opinion the evidence is in-
sufficient to show that any of the goods sold by the claim-
ants to Peru were contraband. They were not found in the
list of prohibited articles enumerated in the treaties between
the United States and Chile, Peru, and other South Ameri-
can Republics; that if they had been contraband, the only
146
penalty would have been confiscation in the event of their
seizure by Chile while in transit between the United States
and Peru. He then refers to the decisions of the Court of
Claims and the Supreme Court of the United States, and
states :
“Those opinions have no application whatever to the
question now under consideration. They involve the con-
struction of the non-intercourse act of Congress approved
July 13, 1861. They were based upon a law of Congress,
and not upon the law of nations. They involve the question
of loyalty and not the question of neutrality. There is a
very broad distinction between the two.”
He then cites the treaty between France and the United
States for the settlement of French and American claims, in
which the language was similar to the United States and
Chilean treaty, and showed that the French Commission
decided that the Le Mores, two French citizens, were not
chargeable with giving aid and comfort to the enemies of
the United States, although the evidence proved that they
had delivered 609 bales of gray cloth to the Confederate
authorities under a contract with the Quartermaster's Depart-
ment to supply the cloth for the army of the Confederate
States.
He then says:
“I feel convinced that the dismissal of these cases will
operate as a great hardship upon the claimants. They
have done nothing that good faith would not require in
their contract with Peru, made before the hostilities with
Chile. They have done nothing in violation of the laws of
nations which prescribe the duties of neutrals towards
belligerents. They have made no discriminations in their
intercourse with Chile and Peru, and have treated both alike.
If Chile thought proper to declare war against Peru, she had
a right to do so, but she had no right to interdict legitimate
trade between Peru and the neutral American citizen. She
had no right to stop the wheels of commerce and thereby
inflict losses upon the unoffending neutral. The rights of
neutrals should be respected as well as those of belligerents.
If the views of my honorable colleagues are correct, a
147
neutral can only deal with a belligerent at his peril. A dec-
laration of war by one nation against another involves not
only the destinies of the two belligerents, but the rights and
interests of the rest of mankind. No trade can be carried
on with one belligerent without giving aid and comfort to
enemies of the other. According to my understanding such
is not a fair construction of the phrase ‘aid and comfort'
used in the first article of the treaty, and I feel constrained
to dissent from the decision which has been rendered.”
|FIENRY S. PREVOST et al.
2). No. 30.
THE REPUBLIC OF CHILE. Y
This case was submitted by the United States March 7,
1894, but not by Chile, hence the Commission took no action
upon it.
GRANT WALKER et al.
Q}. > No. 31.
THE REPUBLIC OF CHILE. Ş
This case was submitted by the United States January 20,
1894, but not by Chile, hence was not considered by the
Commission. -
GEO. W. L. MAYERS et al. -
. Q). - {so 32.
| THE REPUBLIC OF CHILE. .
This case was submitted by the United States January 10,
1894, but not by Chile, hence no action was taken by the
Commission. - -
JULIA L. WILLIAMS, Administratrix, R
Q). No. 33.
THE REPUBLIC OF CHILE. Ş
FRANK A. ROBINSON
2).
THE REPUBLIC OF CHILE.
The memorialist, Williams, a citizen of the United States
and the administratrix of William P. Williams, a citizen of the
148
United States, represents that on the 6th day of July, 1856, the
steam vessel Polynesian, of New York, U. S., departed from
the port of Valparaiso, Chile, to the port of Coronel, in
Chile, for the purpose of purchasing a cargo of coal; that
on the 11th day of July, 1856, after having obtained the
license authorizing her departure, the vessel made ready to
depart, but was prevented by the captain of the port of
Coronel, who served a summons requiring the presence of
Williams before said officer of the port, who informed him
that he was a prisoner and would be sent to Concepción, and
that his vessel was either seized or detained. He remon-
strated, without avail. Many of the officers and crew were
wrongfully arrested and imprisoned. That on the 16th of
July, 1856, the vessel was placed under the guns of the war-
ship A moud, where she remained until the 26th of July,
1856, when she was released by order of the Intendencia of
Concepción ; that he regularly protested before the Consul
of the United States against the arrest of himself and crew
and the seizure of the vessel; that the vessel was seized and
detained upon the unfounded suspicion that she and her
master were aiding and abetting hostile and clandestine ex-
peditions against the Republic of Peru ; that said detention
was unwarrantable and unjustifiable; that William P. Wil-
liams sustained losses and damages by reason of said seiz-
ure to the amount of ºths of said claim of $40,000, to wit,
$35,500, with interest from July 26, 1856, and that such
claim now belongs to the assets of the estate of said de-
cedent. -
The memorialist Robinson sues for the remaining ##ths
of the claim.
The Agent for Chile filed a general demurrer to the peti-
tion on the ground that there was no averment anywhere in
the memorial that Williams was the owner of any part of
said vessel, or that he was in any manner pecuniarily inter-
ested in the voyage ; that among the documents filed with
the memorial is one showing that Williams represents the
149
owners of gºths of the steamship Polynesian ; that from the
papers filed it appears that not only was he not the owner
of any part of the steamer, but that he represented the
owners, who were citizens of New York, and the legal con-
clusion is that he had no pecuniary interest in the ship.
The Agent of the United States confessed the demurrer
and asked leave to amend the memorial.
The Assistant Counsel for Chile objected and the Commis-
sion took the same under advisement, and, December 30,
1893, made an order that, the demurrer having been con-
fessed, leave is granted to the memorialists to amend their
memorials as they may be advised. No further action was
taken in this case by the Commission, but Robinson filed an
amended memorial on January 15, 1894.
STEPHEN M. CHESTER
Q}. No. 34.
THE REPUBLIC OF CHILE.
The claimant, a native-born citizen of the United States,
claims that on the 1st of April, 1881, when he was about to
take passage on an English steamer for his home in the
United States, he was wrongfully and violently seized by the
military authorities of the Republic of Chile, placed in irons,
incarcerated in a dark and filthy cell in company with crimi-
mals of the lowest grade ; kept there for fourteen days; was
brought before a board of Chilean officers and learned for
the first time of the pretext for his arrest; was examined by
said board of Chilean officers, and his discharge ordered by
said board, with an apology for his detention ; that by rea-
son of said arrest he suffered great damages in his business,
and asks judgment for $50,000, and interest from October
31, 1881, making in all $86,000.
On the 23d of December a general denial was entered by
the Agent for Chile, and the counsel for claimant was noti-
fied by the Agent for the United States in writing and ver-
150
bally that he must produce his testimony and close
his case on or before March 9, 1894; no testimony was
produced by claimant or his counsel within said limit.
After repeated notices to the said counsel that the case would
be dismissed, and demand on the part of Chile that the case
should be closed under the rules, on the 30th of March,
1894, on motion of the Agent of Chile, it was dismissed by
the Commission, for the reason that no evidence had been
adduced by the claimant within the rules of the Commis-
S1OIl.
AUSTIN D. MOORE \
* Q). No. 35.
THE REPUBLIC OF CHILE. Ş
This case was not submitted on the part of the United
States nor of Chile, and no action was taken thereon by the
Commission. ©
ELIZABETH C. MURPHY et aſ.
Q). No. 36.
THE REPUBLIC OF CHILE.
Claimant states that her husband, John A. Murphy, and
herself were native-born citizens of the United States; that
her husband died on the 21st of September, 1886, leaving
children who are named in the memorial, all citizens of the
United States by birth ; that on the 9th of January, 1881,
her husband was in charge of the Melgarejo plantation, near
Lima ; that with the approval of the United States Minister
at Lima he hoisted the United States flag and placed two
American shields, bearing the signature of the Minister, on
the house in which he and his family resided and which
contained all his furniture, instruments, and movable prop-
erty; that the house was situated about nine miles from Lima,
and far removed from the works built for the defence of the
city; that on the 9th of January, 1881, a strong Chilean
151
reconnoitering force, commanded by Chilean officers, at-
tacked his house and fired at him when he assured them
that he was a neutral and pointed to the American flag ;
that they then entered the house, finding him alone, appro-
priated several of his articles and took him prisoner, charged
him with being a Peruvian spy, and said that he would be shot
on arrival at headquarters. He was placed in a dirty, loath-
some room ; he was searched, and the contents of his
pockets, such as letters, passport, and jewelry, were taken
from him, but afterwards returned to him ; that he was re-
tained at headquarters and subsequently compelled to follow
the General during all the battles until the arrival of the
Chilean forces at Lima ; that upon returning to his planta-
tion he found that his furniture, trunks, and the whole of
the clothing of his family, books, stores, engineering instru-
ments, etc., had disappeared, and the Chilean soldiers had
taken full charge of all he possessed. He presented with
the memorial an inventory, showing his loss to be $9,539,
gold coin of the United States; that such destruction and
appropriation of his property by the Chilean forces were
unjustifiable and unwarrantable acts and not acts of military
necessity nor of legitimate war. Wherefore he asks judgment
for the said sum and interest, amounting to $17,122.50.
Testimony was filed, being the affidavits, documents and
papers which were on file in the Department of State of
the United States, in support of said claim, and the case was
submitted. No testimony was filed by Chile.
Briefs were filed by the private counsel for claimant and
the Agent of Chile, and the case was argued by the respec-
tive Agents and the Assistant Counsel for Chile.
On behalf of the United States it was claimed that the tes-
timony fully sustained all the averments of the memorial,
and that as the testimony was competent under the treaty
and rules of the Commission the claimant was entitled to
TeCOWel’.
152
On behalf of Chile it was contended that the testimony
/ was mainly affidavits made before the Minister of the United
States in Lima or before the Consul of said country, some in
1880 and 1881, and the majority in December, 1890; that
the officials named were not competent to take testimony in-
tended to be used in a case and have effect as against third
parties; citing Calvo, Droit Int., sec. 612, 3d ed., and Heffter,
Droit Int. Pub., sec. 216, No. 2; Bluntschli, Droit Int. Cod.,
art. 221; Field's Int. Cod., art. 172; that the practices of in-
ternational law do not recognize in diplomatic ministers
nor in consuls jure proprio competency to take depositions
to be used in trials, therefore the affidavits filed have no
value before the Commission for want of competency in the
officers before whom they were taken and for want of com-
pliance with the rules of the Commission ; that in Chile, as
well as in the United States, testimony must be taken after
notice to the parties; that under the common law, testimony
must be subject to the examination of both parties; citing
People v. Cole, 43 N. Y. 503; 2d Court of Claims, 345; that
rule 12 provides for the taking of testimony by deposition
before the Commission ; that the Commission in the Shrig-
ley case ruled out testimony because it had not complied
with the requirements of rule 12; that even if the proofs
were legal, the affidavits are not sufficient to establish the
claim. To show this the Chilean Agent analyzed the testi-
mony.
The Agent of the United States, in reply, contended, first,
that the question of the admissibility of the evidence coming
through the State Department in the shape of affidavits was
settled by the treaty and rules, as well as by the practices of
international law, and cited Art. 5 of the treaty, which says
that the Commissioners—
“shall be bound to receive and consider all written docu-
ments or statements which may be presented to them by or
on behalf of the respective Governments, in support of or in
answer to any claim, and to hear, if required, one person on
153
each side whom it shall be competent for each Government
to name as its counsel or agent to present and support
claims on its behalf on each and every separate claim.
Each Government shall furnish, at the request of the Com-
missioners or any two of them, the papers in its possession
which may be important to the just determination of any
claims laid before the Commission.”
Also Art. 8, which provides:
“It shall be competent in each case for the said Commis-
sioners to decide whether any claim has or has not been
duly made, preferred, and laid before them, either wholly
or to any and what extent, according to the true intent and
meaning of this Convention.”
Also Art. 4, wherein the Commissioners were required—
“to make a solemn declaration that they will impartially
and carefully examine and decide to the best of their judg-
ment and according to public law, justice, and equity, with-
out fear, favor, or affection, all claims within the description
and true meaning as of Articles 1 and 2, which shall be laid
before them on the part of the Governments of the United
States and of Chile, respectively.”
Second. That the Commission recognized the force of
these provisions of the treaty in adopting the rules, for in
rule 2 they require the claimant to file with the memorial
“all documents in his possession and at his command ;” and
by rule 11 they provide that “no evidence or information in
the nature thereof will be received except such as shall be
furnished by or through the respective Governments,” im-
mediately following this by rule 12, which says, “additiona/
testimony may be taken in the form of deposition,” prescrib-
ing the manner of notice and the taking thereof.
Also in rule 15, they provide :
“The rules of evidence as to the competency and effect of
the same shall be determined by the Commission with refer-
ence to the Convention under which it is created, the laws of
the two nations, the public law, and these rules.”
154
And in rule 20, they provide—
“The order and mode of procedure which obtain in courts
of justice in both countries will be observed in proceeding
before the Commission so fºr as practicable and consistent
with the Convention and these rules.”
That it was evidently the intention of the Commission to
receive all papers and documents presented to them from the
State Departments of the respective Governments, and to
provide for additional testimony after the Commission was
organized, to be taken regularly by deposition if necessary.
It is not to be supposed that by making these positive pro-
visions in the rules, and inviting claimants to follow them,
that the Commission intended to set a trap by which claim-
ants might be caught by declaring such testimony incompetent
at the hearing.
That the affidavits were nearly all taken before the Secre-
tary of Legation of the United States or a Consul of the
United States; that sec. 1750, R. S. U. S. provides :
“Every Secretary of Legation and Consular officer is
hereby authorized whenever he is required or deems it neces-
sary or proper so to do, at the post, port, or place or within
the limits of his Legation, Consulate or Commercial Agency,
to administer to or take from any person an oath, affirma-
tion, affidavit, or deposition, and to perform any notarial act
which any notary public is required or authorized by law to
do within the United States.”
That in the very nature of things the State Department
must depend, in the presentation of diplomatic cases, on affi-
davits of the parties and witnessses and other documents
showing the nature, character, and amount of the claim,
citing Wharton's Dig., vol. 2, sec. 218, p. 547, wherein
Mr. Seward says:
“The Executive Government is not furnished with the
means of instituting and pursuing methods of investigation
which can coerce the production of evidence or compel the
examination of parties and witnesses. The authority for
such an investigation must proceed from Congress. It can,
155
however, determine as to the presentation of a case to a
foreign sovereign on affidavits and other proof, and when
negotiating with a foreign Government as to the compromise
of a claim may examine the whole case presented, whether
on affidavits, documents, or oral admissions.”
The rules of the Department in regard to the preparation of
claims and the precedents laid down in sec. 213, p. 539, 2d
vol. Wharton's Dig. provide for affidavits. That under
these rules hundreds of cases have been prepared, pre-
sented and settled between the United States and other
Governments. The appointment of a pribunal of arbitration
does not change the character of the claim as a diplomatic
claim ; it is but a method agreed upon between the two
Governments by which diplomatic claims can be settled,
and in the very nature of the case the papers on file in the
State Departments of the respective Governments constitut-
ing the basis of the claims should be considered by the Com-
mission, hence the provisions of this treaty and of the rules
thereunder.
Quite a number of citations were also made from the Ven-
ezuelan Claims Commission to show that that Commission
acted on affidavits and documents presented by the respective
Governments. -
The majority of the Commission, Messrs. Claparède and
Gana, in quite a lengthy opinion, reviewed the provisions of
the treaty, the rules, the requirements of the Chilean law,
and of the laws of the United States in regard to evidence,
and say:
“We believe that the character and nature of this kind
of international tribunals is not irreconcilable with a
broader construction of the means of investigation that
might present themselves. Cases may arise in which, be-
cause of the date of the occurrence, the impossibility of the
party to summon the other party when taking the testimony,
and because of the death in the course of time of the
witnesses, it may be impossible to present them for cross-
156
examination by the respondent party. When such circum-
stances arise, it seems equitable not to reject this kind of
evidence as entirely null and invalid without losing sight of
the little weight or lack thereof attached by the most ad-
vanced legislations to this kind of evidence. We must on our
part take them into consideration, not as evidence, but only
as elements which, in certain cases, may contribute to a
limited extent collaterally or secondarily to confirm or
strengthen a conviction appearing to be based on proofs of
a more conclusive character.”
Citing art. 8 of the Convention, they further say:
“This provision, taken with rule 15, leaves the Commis-
sion at liberty to take affidavits into consideration, and to
attribute to them a limited value or no value whatever,
according to circumstances. Thus it may give them a
certain relative importance, or deny them any value, es-
pecially when the parties may have had opportunity to furnish
better evidence and have neglected to do so, or when they
have had opportunity to conform to the rules established by
this Commission for the validity of the proofs, and they have
failed to observe them.”
The Commission then went into a thorough examination of
the affidavits and papers, analyzed them, and held—
“that all of them are ea parte proofs furnished ten years after
the alleged offence occurred, and that without having given
due notice to the respondent Government, thus depriving the
latter of the opportunity to witness the swearing and exami-
nation of the witnesses and of the legitimate privileges of
cross-examining them, and that the claimant, in view of the
formal denial of all the facts filed by the respondent Govern-
ment, could have taken advantage of the time given by the
rules of the Commission to give legal force to the evidence
presented and complete her proofs, and it does not appear
that she has made any efforts in that direction. We are of
the opinion that the documents produced are entirely insuffi-
cient to prove the liability of the military authorities of
Chile.” And the claim was disallowed.
Commissioner Goode dissented, holding that the 5th arti-
cle of the Convention, which provides that the Commission
157
shall be bound to receive and consider all written docu-
ments or statements which may be presented by or on be-
half of the respective Governments in support of or in an-
swer to any claim, is a mandatory provision, and as the
Commission was required to receive and consider these state-
ments, it is evidently the purpose of the Convention that
they should have evidential value. He then analyzes the
testimony, and says:
“It would have been more satisfactory if claimant's
testimony had been taken in the form of deposition,
after due notice and opportunity to defendant to cross-
examine the witnesses, but, as already stated, I do not
feel at liberty to discard it altogether. As it is competent
testimony under the rules, and is entirely uncontradicted, I
think its legal effect must be to establish the claim, however
just may be the criticism upon some of the affidavits as
being too vague and indefinite in their character, and I think
there can be no reasonable doubt, in view of all the testi-
mony, that on the 9th of January, 1881, John A. Murphy
was wrongfully taken prisoter by the Chilean forces; that
he was carried away from his home by coercion and under
duress, and that as a dil et consequence of this illegal
and wrongful capture his property was taken or destroyed.
Under these circumstances I submit that his widow and
children are entitled to receive compensation for their losses
from the respondent Government.”
NoTE.—While it is difficult to understand just what effect the majority of
the Commission intended to give to ea parte affidavits coming through the
State Department, it may fairly be assumed that they held that such proof
was competent, and must be considered for what it was worth, giving it
such value as they might deem proper; otherwise they would not have ana-
lyzed the affidavits in this case, and declared that they did not sustain the
claim. In the similar case of Thorndike, No. 6, they also analyzed the affi-
davits and documents, and say—
“the majority of the Commission, after having examined the papers and
documents presented by the claimant, consider that they lack sufficient legal
weight to warrant a decision against the respondent.”
158
Q}
JAMES M. HALLOWEs
wº No. 37.
THE REPUBLIC OF CHILE.
Claimant, a native-born citizen of the United States, avers
that during the revolution against the Government of Bal-
maceda the port of Iquique was blockaded from the 20th of
January, 1891, until the 18th of February, 1891, by the
Congressionalist navy under the command of Rear-Admiral
George Montt ; that the revolutionists were successful and
obtained control of the country August 28, 1891; that he
was the owner of certain silver mines near Iquique, Chile,
and had entered into a contract with one Boivin, owner of
an adjoining mine, to sink certain shafts and construct
certain galleries prior to the 11th of December, 1891, with
a stipulation that unless the work was completed within the
time specified, all that was done should be forfeited and be-
long to said Boivin, but if the work was completed within
the time claimant was to receive a large interest in said
mine ; that he began work and it became necessary to obtain
machinery for the prosecution thereof, which was obtained
in New York and shipped on the steamer Mt. Zºbor, which
sailed for Valparaiso October 25, 1890; that memorialist
returned to Chile and proceeded to make ready for the re-
ception of the boiler and machinery at the mines; that
the vessel arrived in Valparaiso in January, 1891. The
machinery was reshipped on the Talisman and arrived
at Iquique after the port was taken by the revolutionists,
and received by claimant. The boiler was shipped from
Valparaiso on the steamer Ecuador. Calling at Antofagosta,
the captain learned of the blockade of Iquique and re-
turned to Valparaiso and discharged the boiler on a hulk
in the bay without the knowledge or consent of claimant;
that by order of President Balmaceda, without cause, the
officials of Chile seized said boiler February 1, 1891, and
detained the same until June 14, 1891, for the reason
159
alleged, that the boiler might be useful to the revolutionists;
that memorialist was not able, though making every effort,
to obtain permission to ship the same to Iquique before
June 14, 1891; that the boiler did not arrive at the mines
until June 29, 1891, and claimant was not able to commence
work with the machinery, as part of the boiler fixtures had
been lost, until August 1, 1891; that when the contract time
expired claimant had completed nearly all of the work, and
but for said blockade and the seizure and detention of said
boiler the contract could easily have been completed ; that
by reason of the non-completion of his contract with Boivin
he was compelled to surrender a large interest in his own
mines and a large part of the interest that he was to have in
Boivin's mine ; that by reason thereof he was damaged in
the loss of said property, in the enforced idleness of himself
and skilled workmen for a long time, and for the expenses
necessarily paid on account of the loss of time and for addi-
tional freight on said boiler and for the fall in exchange dur-
ing the period of detention, and for being compelled to em-
ploy more men in the attempt to carry out his contract, mak-
ing in all 117,266.24 Chilean pesos, and $10,400 United
States gold coin, with interest.
The Agent for Chile demurred generally to the memorial
on the ground that it admitted the complete blockade of the
port of Iquique and that the right of a nation at war to
establish a blockade both of the enemy's port and of its own
ports is an admitted rule of international law, hence the de-
tention of the steamer Mt. Tabor was a lawful detention,
and if any injury resulted to the memorialist it was an in-
jury he must sustain without remedy over against the Gov-
ernment establishing the blockade.
A brief was filed by the private counsel for memorialist
and the case was argued by the Agents of the respective
Governments and the Assistant Counsel for Chile.
It was contended on the part of the United States that
160 °
the investment of the port of Iquique was by an insurgent
force which had not been recognized by the Government of
the United States or any other foreign Government nor by
the constituted forces of Chile as a belligerent, which fact,
being a matter of public history, will be taken judicial notice
of by the Commission ; citing Wharton's Dig., vol. 2, pp.
576, 579, 581, 668–669; that the claimant does not rest
alone upon the closing of the port of Iquique, but on the
illegal seizure of the boiler by the constituted authorities of
Chile at Valparaiso, February 1, 1891, which seizure was
the immediate cause of claimant's loss and injury. There
was some discussion of the question of the damages claimed
as being consequential, but the point was not pressed.
The Commission decided that “The damage complained of
by the memorialist did not result from the blockade of the port
of Iquique, which did not last longer than up to the 18th of
February, 1891, but from the alleged detention of the boiler
from the 1st of February to June 14, 1891,” therefore they
overruled the demurrer.
The testimony of claimant which had to be taken in Chile
not arriving in time, the case was not closed on the part of
the United States, and there was no consideration thereof
on the merits by the Commission.
JoHN C. LANDREAU -
Q). No. 38.
THE REPUBLIC OF CHILE.
The claimant, a naturalized citizen of the United States,
claims that he was the lawful owner of one undivided tenth
part of certain guano deposits in Peru, described in an ex-
hibit attached to the memorial, and was the owner at the
time Chile took possession thereof; that his brother J. T.
Landreau, a subject of France, between 1844 and 1865, made
certain discoveries of guano deposits theretofore unknown ;
that by reason of such discoveries he became entitled to one-
161
third of the property so discovered as provided in the laws
of Peru, par. 6 of the Decree of February 13, 1833, con-
tained in vol. 4 of the compilation of laws by Quiróz ; that
about the year 1859 claimant purchased from his brother
one undivided half of his interest in said property, and be-
came a joint owner and partner with him therein ; that on
the 29th day of October, 1875, the partnership and common
interest was terminated and the title so adjusted that claim-
ant was to have an interest of 30 per cent. of the right
acquired by his brother J. T. Landreau, and the latter was
to hold the remaining 70 per cent., by means of which claim-
ant became absolute owner of one-tenth of said guano de-
posits discovered by J. T. Landreau; that on the 28th of
October, 1865, J. T. Landreau, representing his interest and
that of claimant, entered into a contract with Peru by which
they were to receive, in lieu of their right to one-third of
said guano deposits, a certain proportion of 5,000,000 tons
of guano to be removed from said deposit. Peru refused to
carrry out said contract, and on the 12th day of December,
1868, by decree of that date, formally repudiated said con-
tract ; that claimant and his brother J. T. Landreau were
thereby restored to their original rights. Copies of the con-
tracts between the brothers and between J. T. Landreau and
Peru are filed as exhibits; that about the year 1881, Chile,
well knowing the premises and the right and title so held
and owned by memorialist and his brother aforesaid, took
possession of all the said guano deposits, and has from that
time held exclusive possession thereof, has worked or caused
the same to be worked, and has removed therefrom large
quantities of guano, exceeding 3,000,000 of tons, and the
memorialist is entitled to one-tenth of the proceeds of guano
removed and sold by Chile; that the value thereof belong-
ing to him, taken by Chile and converted to its use, exceeds
the sum of $5,000,000. g
The memorial then sets out certain assignments that were
made between the claimant and certain parties, and claims
162
that they were either released or cancelled by reason of non-
compliance with their applications on the part of the as-
signees, and states that all matters of difference between him
and his assignees, if any, are cognizable in the courts, and
not before the Commission, and asks judgment for $5,000,-
000 of American gold, and interest from the 1st of January,
1882, at 6 per cent. .
The case was considered in connection with the Hodgskin
case, No. 39, which see. -
T. E. HODGSKIN |
- Q). No. 39.
THE REPUBLIC OF CHILE. §
This claimant, an American citizen, claims to be the legal
and equitable owner of all right, title, and interest in and to
the claim of one J. T. Landreau v. The Governments of Peru
and Chile ; that the justice and validity of said claim have
repeatedly been admitted by the Government of Peru;
that the public decree of Peru is the basis of this contro-
versy, and he files as an exhibit a pamphlet containing the
history of the case and the grounds on which the claim rests.
The memorial avers that J. T. Landreau, confiding in the
said decree and proclamation of Peru, devoted years of labor
prospecting for deposits of guano, and expended large sums
in the search therefor; that by the then existing laws of
Peru and the said decree he was entitled to receive either
one-third of all the mineral or other natural resources dis-
covered by him or one-third of their value; that he dis-,
covered large deposits, resulting to great advantage to the
Government of Peru; that Peru obtained the benefit of said
discoveries and received therefrom many millions of dollars;
that Landreau never received any benefit therefrom what-
ever; that the claim has never been satisfied; that upon the
report of the officials of Peru the Government entered into
negotiations with Landreau for the reduction of his claim to
an amount within the power of the Government to pay :
163
that a basis of settlement was agreed upon between Lan-
dreau and the Government, which was disregarded and re-
pudiated by the Government of Peru; that Peru, as a war
indemnity, conveyed said deposits of guano to Chile, which
took possession thereof, and ever since retained possession;
that claimant, individually and as trusteee, has a just and
legal claim upon such deposits of guano against the Re-
public of Chile which existed at the time Chile seized the
same, and that a lien has existed ever since in favor of
claimant either against the deposits or the proceeds thereof;
that Chile was duly notified of his claim, and that it would
be held liable for Landreau's share in said guano deposits;
that in disregard thereof Chile took and sold more than
$10,000,000 of such guano and converted the same to its
use ; that he is entitled to one-third of the value of all the
guano taken, &c., &c.; that on the 11th day of March, 1865,
J. T. Landreau entered into partnership with one Huard and
delivered him a complete power of attorney and authorized
him to dispose of his (Landreau's) interest in said claim ;
that Huard, for a good and valuable consideration, made an
absolute assignment to J. D. Hodgskin; that Hodgskin ex-
. pended in his lifetime more than $25,000, and years of toil,
in endeavoring to collect said claim ; that Hodgskin died in
March, 1879, devising his estate to his wife, Helen C.
Hodgskin; that she transferred said claim to the claimant :
that John C. Landreau claiming an interest in said claim
and others claiming an interest therein made a contract
assigning all their interest to George Cowie and claimant as
trustees for the benefit of all parties in interest ; that Cowie
died 13th of February, 1891, leaving claimant sole surviving
trustee, wherefore he asks judgment for one-third of the
proceeds of said guano taken by Chile.
Attached to the memorial as exhibits was a full history of
the claim, making citations from the laws of Peru, the de-
cisions of the Attorney-General of Peru, and the action of
the Governments of Peru and the United States in reference
164
to the said claim, and also a copy of the agreement between
all the parties making Cowie and claimant trustees, which
it is not necessary to note, as they are fully set forth in the
briefs and opinions and will be referred to later.
It will be observed that this claimant and the claimant in
the preceding case, J. C. Landreau, are claimants for the
same property; Hodgskin claiming as assignee of all the
parties, being entitled to one-third of the guano taken by
Chile from said deposits, and J. C. Landreau claiming in his
own right one-tenth of such guano.
General demurrers were filed by Chile in both cases, but
they were considered together by the Commission.
Briefs were filed by the private counsel for the parties and
the Agent of Chile, and the cases were exhaustively argued
by the respective Agents and the Assistant Counsel for
Chile.
On the part of Chile it was claimed that no lien or prop-
erty vested in the claimants upon the deposits of guano in
the territory ceded by Peru, and that there was no obliga-
tion on the part of Chile to recognize the claim of the rep-
resentatives of Landreau against Chile; that by the contract
with Peru in 1865 the only right which J. T. Landreau had
was a claim upon Peru for a per cent. of the proceeds of the
sale of guano, and that the working of the deposits and sale
were reserved exclusively to Peru; that there was neither
contract nor privity of contract between the Government of
Peru and the claimants.
On the part of the United States it was claimed:
First. That under the laws and decrees of Peru and the
action of the Peruvian Government in regard to the claim
the claimants had a property right in the guano beds dis-
covered by J. T. Landreau to the extent of one-third thereof;
Second. That when the Government of Peru repudiated its
contract of compromise the original rights of Landreau were
revived; that the agreement between Peru and Landreau
165
Operated in fact and in law as an equitable assignment pro
tanto of one-third of the guano discovered by Landreau or
the proceeds thereof, citing Williams v. Ingersoll (89 N. Y.
508); Thurber v. Chambers (66 N. Y. 49); Wylie v. Cox (15
How. 415), and many other authorities. That when Chile
took the guano in question from Peru it took the title that
Peru had and subject to all existing liens and encumbrances
thereon ; at that time Peru only owned two-thirds of the
guano in question, and Landreau was entitled to receive his
one-third of the guano itself, or, if sold, one-third of the
proceeds thereof; that if the agreement of 1865 was consid-
ered in force by the Commission it did not extinguish the
joint partnership of inseverable lien ; that it merely reduced
the amount thereof, and the claim was still a valid and sub-
sisting lien upon the rem when it was transferred to Chile,
and that there was direct privity of contract between Peru
and claimants by virtue of its laws and its action in regard
to the claim which bound the property either in the hands
of Peru or Chile; that the failure of Peru to keep its con-
tract of compromise with the Landreaus relieved the other
party from performance and left the status as before the
agreement to compromise was made. (Vesy v. Leavy, 13
How. 345; Memphis v. Brown, 20 Wall. 289.) That J. C.
Landreau was competent to purchase and J. T. Landreau
competent to sell his interest in said guano deposit ; citing
Grace v. Devalle (1 Wall. 1); White v. Burnley (20 Wall.
235); Cook v. Burnley (11 Wall. 659); Gouveneur v. Rob-
ertson (11 Wheaton, 332); Fairfax e. Hunter (7 Cranch, 619).
On the question of the effect of the rescission of the con-
tract of 1865 by Peru were cited 2d Parsons on Contracts,
p. 678, p. 681, p. 683; Bank of Columbia v. Hagner (1 Pet.
455); Andrews v. Hensler (6 Wall. 254); Richardson v.
Hardwick (106 U. S. 252); Wattel, § 224.
The majority of the Commission, Messrs. Claparède and
Gana, Commissioner Goode dissenting, sustained the demurrer
in the Hodgskin case. After reciting the averments of the
166
memorial, they referred to the exhibits, showing that on the
30th of December, 1859, J. T. Landreau petitioned Peru,
stating that he had discovered certain guano deposits, and
asking the Government to inform him what his recompense
will be. Peru answered this, stating the necessity of prov-
ing that the deposits of guano mentioned in the petition were
bona fide discoveries " " * but that the Minister of
Finance was the only person who could designate the said
share, there being no law bearing on the case. The petition
was referred to the Attorney-General of Peru, M. Villarrán,
January, 1860, who reported the necessity of ascertaining
that Landreau's discoveries were new, “as in that case he
considered the Minister of Finance could accept Landreau's
declaration and assign him one-third of the value of the
guano that he had discovered in accordance with the 6th
par. of the vote of the Council of State, dated the 13th
day February, 1833.” Two years elapsed without Peru
acting on Landreau's petition, and he renewed it on
the 2d of December, 1862. This was referred to Attorney-
General Ureta, who, on the 31st day of October, 1863, gave
an opinion contradicting his predecessor, Willarrán. In this
opinion Attorney-General Ureta refers to that of Dr. Villar-
rán, but holds that the decree of February 13, 1833, does not
apply to deposits of guano, and that if one-third premium
cannot be applied in such an absolute manner, it cannot be
denied that a just recompense is due to the person who dis-
covers property the intrinsic value of which swells the wealth
of the nation. After showing that there is no law covering
the case, he says: “The only manner of bringing the point
at issue to a conclusion is to come to a private understanding
with Landreau, who, convinced by the above reasons, will no
doubt enter into a prudent arrangement,” &c.
They then referred to the agreement between Landreau's
representative and Peru, whereby it was proposed if he will
make known his discoveries to pay him 10 per cent, on one
million of tons or less of guano discovered, 8 per cent. on tons
167
exceeding one million, not reaching two millions, 6 per cent. On
tons exceeding two millions, 4 per cent. on tons not
exceeding three millions, &c., up to five millions of
tons, beyond which the excess will belong exclusively
to the nation ; the discoverer was forbidden to interfere
with the contracts of sale of the guano, the same being
reserved to the Government. They then referred to the ac-
tion of Peru in rescinding this contract by a decree on the
ground of several defects that rendered it null, and that the
premium is of such great amount that it can never be given
by the Government, and “whilst the discovering and infor-
mation of the same made by him are accepted, it is hereby
decreed that as a basis for the new contract such new guano
deposits shall be examined by a special commissioner ap-
pointed for that purpose,” &c. They then referred to the
Spanish laws then in force in Peru as quoted by claimant, to
the decree of 1847, wherein the Minister of the Interior of
Peru declares “that the revenue officers should seek and dis-
cover municipal and Government property which produces
nothing:” * * * * “If those discoveries being considered
as declarations, the said functionaries or any one else will be
allowed one-third of the capital discovered and interest not
discharged according to the 6th law, title 22, book 10 of the
new compilation and decree of February 13, 1833.” The
Commission then cites the whole text of the decree of the
13th of February, 1833, and article 7 of the new Spanish
compilation, which are very lengthy, and cannot be here
quoted in full. The 6th provision, however, of the decree of
February 13, 1833, reads as follows:
“6. That whoever after a year from the publication of the
list shall discover property of suppressed convents or other
properties belonging to the State by any title, shall receive
a third part thereof, and those who after the year are con-
victed of concealing them shall be punished in double the
value thereof should they have property.”
They also quote art. 7 of the 6th law, book 10, title 22 of
168
the new Spanish Compilation, which refers to the application
of property of persons dying without making a will, without
known relatives within the fourth degree, being applied to
the construction and maintenance of roads, and as to what
steps shall be taken by the courts in regard thereto, which
says :
“ and once closed they shall decree said property to be
set apart for the construction and maintenance of roads, and
it shall be so applied in this way: two-thirds thereof to go
to the said object for which it is intended, and a third part
to the declared cost of suit and subdelegate ministers and
judges for their labor and work, and a like application shall
be made in cases of property of unknown owners, and if the
suit shall be of 6,000 maraved is down, the cost shall be
subtracted from the whole amount and the remainder shall
be divided into three parts as provided, and the application
made ; the property will be sold at public sale in due form,
adjudging it to the highest bidder.” -
They then announced the following conclusions: that
the decree of the 13th of February, 1833, is not applicable
to the case, “for the sections of the said decree and the
dominating spirit thereof clearly show that it refers solely
to the property of convents, which a Peruvian law had
just provided should be transferred to the State;” that
this is shown by the preamble to the law and by the rea-
sons adduced by the Council for the passage thereof; that
no mention is made of or allusion to discoveries of guano,
and that if it had reference to deposits of guano they would
have been alienated by public sale in accordance with the
provisions of said decree ; that J. T. Landreau never invoked
the decree referred to, but in his first petition asked what his
recompense would be ; that the Director-General of the
Treasury of Peru expressed the opinion that there was no
law applicable ; that although Attorney-General Villarrán
gave it as his view that the Government might assign to
Landreau one-third of the guano in accordance with the said
decree, Attorney-General Ureta later contradicted said
169
opinion, and held that said decree was not applicable ; that
neither the opinion of Villarrán or Ureta had any binding
effect unless the Government of Peru acted thereon ; that
the Government disregarded the opinion of Villarrán and
followed that of Ureta; that Landreau upon accepting the
contract of 1865 with Peru accepted also the opinion
of Attorney-General Ureta, which was the basis of said
decree ; that the provision of the new /Pecopilación is inap-
plicable to the claim for the reason that the law refers solely
to property left by persons dying intestate and without heirs
within the fourth degree, and of certain property having no
known owner ; that the decree of 1847 was only a regulation
for the registration of property referred to in the decree of
1833 and in the new Recopjlación; that by the decree of
December, 1868, Peru declared invalid the contract of
October, 1865, promising to give Landreau a moderate com-
pensation for his services as discoverer; that Landreau
simply had a personal claim against Peru ; that Chile took
possession of the guano deposit as a result of war ; that J.
Theophile Landreau lacking all jus in re recognized by the
Government of Peru in the guano deposits, Chile could
legitimately take possession thereof in accordance with the
laws of war, and that when Peru ceded the same to Chile it
was without onus so far as Landreau was concerned ; that
Chile having agreed with Peru to deposit in the Bank of
England 50 per cent. of the product of guano to be applied
to the payments of duties due by Peru subject to an award
by the federal court of Switzerland, Landreau, if he con-
sidered that he had a jus in re, could have taken advantage
of the medium thus offered to secure the full recognition of
his alleged rights; that Chile subsequently ceded to Peru
the 50 per cent, retained by her for the benefit of creditors
of Peru, therefore Chile has returned in favor of Peru and
her creditors all proceeds that had resulted from the sale of
guano. (See Report of Foreign Relations Chile, 1892, pp.
121 and 156.)
170
For these reasons the demurrer was sustained and the
claim of Hodgskin disallowed.
In the case of John C. Landreau the majority of the Com-
mission recite the averments of the memorial, and say:
“For the reasons in the Hodgskin case, No. 39, we sustain
the demurrer and dismiss the claim.”
In his dissenting opinion Commissioner Goode recites the
facts which appear from the memorial in the J. C. Landreau
case, the decree of February 13, 1833, setting out the 6th
article thereof, the Supreme Decree of 1847 of Peru, the
opinion of Attorney-General Villarrán, and says:
“It thus appears that by the express terms of the decree
of 1833, based on the laws of Peru as interpreted by her
Attorney-General, Ländreau was entitled to one-third of the
guano deposits discovered by him. No contract can be of
higher dignity or more binding in form than that which
exists under the Supreme Decree of a Government based
upon the laws of that Government. The effect of the con-
tract was to vest in J. Theophile Landreau an equitable title
to one-third of the guano deposits discovered by him, which
became a legal title when those discoveries were reported to
and accepted by the Government of Peru. He was to all
intents and purposes the legal owner of one-third of the guano
deposits in question. He was joint owner with Peru of this
valuable property. His title to the one-third of the guano de-
posits discovered by him was as clear and indisputable as
that of Peru to the remaining two-thirds, as soon as those
discoveries were reported and accepted. Under these cir-
cumstances Peru, being pressed by financial difficulties and
severely in need of money to sustain her waning credit, made
Landreau a proposition of compromise, thereby recognizing
the justice and validity of his claim. The offer of com-
promise was accepted by Landreau, and the result was the
formal contract of October 28, 1865, under which he was to re-
ceive a certain percentage of the net proceeds of the guano
deposits discovered by him.”
He then cites that contract and refers to the decree of
Peru of December 12, 1868, annulling that contract, whilst
the discovering of the deposits and the information of the
same made by him were accepted, and says: -
171
“While accepting its benefits on her part, she delib-
erately repudiated it so far as Landreau is concerned.
What are the legal consequences of such a breach of
faith and such a violation of the new contract I am of
opinion that the legal effect is to remit the parties to their
original status and restore to Landreau his right to claim
one-third of the guano deposits discovered by him, or one-
third of their value if they have been converted and sold. It
is a well-settled principle that when one party fails to per-
form his part of the contract the other party may treat the
contract as rescinded. * * * Peru had no right to con-
vey, and Chile no right to receive, property that belonged to
Landreau. When Peru conveyed the territory on which the
guano deposits were located Chile took it cum omere. She
took it subject to all existing liens and encumbrances. She
took such title to the guano as Peru had, and Peru had title
only to two-thirds thereof. It is the very nature and essence
of a lien that no matter into whose hands the property goes
it passes cum onere. The lien of Landreau still exists, and
remains inseparably attached to the deposits of guano or to
the proceeds of their sale.”
As to the second ground of demurrer, that there was
neither contract nor privity of contract between Peru and
the claimants, he says:
“They do not base their claim upon any contract with
Peru. They claim one-third of the guano deposits in ques-
tion as assignees for valuable consideration from J. Theo-
phile Landreau, who derived his title from Peru. * * *
Any estate or interest in land is assignable. If J. Theo-
phile Landreau was the legal owner he had the absolute
right to dispose of the property in whole or in part.”
He then refers to the fact that Chile had notice of the
claim before taking the property, according to the averments
of the memorial, and holds that Peru was responsible to the
claimants for one-third of the guano deposits, and that Chile
became responsible by the acquisition of said territory and
appropriation to her own use of the said property. That
therefore the demurrer should be overruled.
The Agent for the United States moved in this case and
172
in No. 38 that the judgments be modified by adding the
words “without prejudice” to the order of dismissal. This
the Commission declined to do, but made the orders read as
follows: “No. 38. That the demurrer interposed by the Agent
of Chile is sustained, and that the claim of John C. Landreau
against the Republic of Chile is dismissed.” The same entry
was made in case No. 39, except the word “disallowed " was
used instead of “dismissed.”
WILLIAM W. C. DODGE
Q}. No. 40.
THE REPUBLIC OF CHILE.
Claimant, a native-born citizen of the United States, avers
that on the 21st of April, 1881, a body of Chilean soldiers
broke into the house where claimant was temporarily stay-
ing, at Miraflores, Peru, overbore claimant, violently assaulted
him, and brutally beat and cut with knives many parts of
his head and body. By reason of said injuries he was pre-
vented from following his occupation, obliged to expend
large sums of money, and to pay large sums to his physician
and for board and lodgings and services of a nurse ; that
said soldiers, immediately after said attack, took away from
his house certain personal property and Peruvian money of
the value of about $200 ; that the persons who made the
attack on claimant were soldiers in the employment of the
Chilean Government ; that he does not know the name nor
rank of said persons; that Gen'l Lynch of the Chilean army
offered to pay claimant the sum of $300 in full satisfaction
of all claims against the Republic of Chile. He asked judg-
ment for the sum of $5,342.04. r
The Agent for Chile demurred generally, claiming that
Chile ought not to be required to answer unless the claim-
ant shall first amend his memorial so as to specify the rank
of the persons committing the alleged outrages, the author-
ity under which they acted, and the names of the civil or
military persons under whose orders the soldiers were serv-
1ng.
173
The case was argued by the respective Agents of the two
Governments, and the Commission overruled the demurrer,
stating,
“As the provisions of art. 3c. of the rules do not make the
naming of the persons who committed the acts com//itio sine
qua non for the basis of the claim, we are of the opinion that
the memorial is sufficiently specific under the rules referred
to, and that the demurrer should be overruled.”
Testimony was taken in the case by the claimant, but the
case was not in condition to try within the time-limit of
the treaty and was not considered by the Commission on
the merits. -
MAURICIO LEVEK t
Q). ( No. 41.
THE REPUBLIC OF CHILE. Y
This case was submitted by the United States January
20, 1894, but not by Chile, and was not considered by the
Commission.
PETER BACIGALUPI !
17. No. 42.
THE REPUBLIC OF CHILE. W
Claimant, a native-born citizen of the United States, avers
that on the 13th day of January, 1881, he was the owner in
his own right and in the possession of a stock of jewelry in
a store in Chorrillos, Peru ; that on that day a body of
Chilean soldiers in uniform, in command of their officers,
whose names and rank are to memorialist unknown, forcibly
entered said store and took away all his jewelry and prop-
erty and appropriated the same to their own use; that at
the time of the seizure and appropriation the town of
Chorrillos was in the undisputed possession of the Chilean
army, no battle was pending, nor was there any reason for
the seizure, which, if not committed by the command of the
174
Chilean military authorities, might have been prevented by
them ; that at the time the goods were taken and the store
destroyed by fire the American flag and a large placard with
the signature of the Minister of the United States to Peru
was nailed over the door, giving notice to all persons that
the property was the property of an American citizen and a
neutral. He claims $17,500 for loss of his goods, and
$10,000 for loss of his business, with interest from the
13th of January, 1881, at the rate of 6 per cent. per annum.
Testimony was taken on behalf of the claimant, and the
case was submitted by both Governments on the 26th of
March, 1894. Briefs were filed by the private counsel of
claimant and by the Agent of the Republic of Chile, and the
case was fully argued by the Agents of the respective Gov-
ernments and the Assistant Counsel for Chile. -
On behalf of the United States it was claimed that th
destruction was unnecessary, wanton, and contrary to mili-
tary law, as the battle of Chorrillos was over at 2 o'clock on
the 13th of January, 1881; also that the towns of Chorrillos,
Barranco, and Miraflores were destroyed after their capture,
in pursuance of the expressed determination on the part of
the Chilean Secretary of War to carry on the war with such
severity as to make Peru sue for peace ; that while Chile
might adopt such course if deemed proper, she did it at her
peril in so far as the destruction and appropriation of the
property of neutrals was concerned, and was liable for all
wanton destruction of neutral property. The letters of Min-
ister Christiancy to Mr. Evarts, February 15, 1881; the re-
port of Gen. Baquedano, the Chilean General, Foreign Re-
lations United States, 1882; Wharton's Dig., sec. 225, pp.
598, 599; Halleck's Int. Law cited in Wharton's Dig., sec.
225; Jenneaud v. U. S., French Claims Commission, p. 132;
Chourreau v. U. S., ibid., 134, 136; Bertrand v. U. S., ibid.,
147. - .
On the part of Chile it was contended that the proof did
not show claimant to be a citizen of the United States, and
175
that the testimony did not show the ownership or loss of the
property. Long citations were made from the reports of the
Chilean and Peruvian officers, and from the representative
of the French army, to show that the houses were destroyed
and the property taken, if at all, during the battle in and
around the city of Chorrillos, and was a result of war and not
a wanton destruction.
The Commission, for lack of time, were unable to consider
the case on its merits, but remitted it with the other cases to
the respective Governments.
FREDERICK H. LOVETT et al. !
'U). No. 43.
THE REPUBLIC OF CHILE. Ş
Claimants, as the heirs of Benjamin J. Shaw, a native-
born citizen of the United States, and themselves native-
born citizens of the United States, claim that in October,
1851, Shaw was the sole owner of the bark Florida ; that on
that day she was at the port of Valparaiso under the com-
mand of Captain Charles H. Brown, said Shaw being with
the vessel; that it was chartered by Chile to convey about
70 political prisoners, together with the officers who had
charge of them, to the Chilean penal colony at Sandy Point,
in the Straits of Magellan, for which Chile agreed to pay the
sum of $1,600; that on arriving at Sandy Point the convicts
there had revolted, and they took possession of the bark,
made prisoners of the captain, the owner and crew, and
thrust them in prison ; that on December 2d Shaw, with
others, was taken from the prison by the revolted prisoners
and shot ; that the leader of the convicts took possession of
the bark Florida and sailed westwardly; that on the 15th of
January Captain Brown, together with thirteen others, went
on board the bark, overpowered the ringleaders and the
convicts, seized $80,000 which the latter had taken from
the British brig Elisha Cornish, and delivered the prisoners
to the authorities of Chile, abandoning his vessel to the
176
Chilean Government and demanding compensation. Chile
at first promised to make redress, but, failing, the captain
was compelled to sell the vessel to pay the expenses which
had been incurred during the said occurrences; that the
treasure on board the Florida was seized by a British
steamer and no salvage allowed. Wherefore claimants de-
mand damages for the compensation and the detention of
the vessel, for loss of salvage on the treasure, and for the
murder of Benjamin G. Shaw, amounting in all to $225,800.
The Agent for Chile demurred generally to the memorial
on the ground that the Chilean Government cannot be made
accountable for the conduct of the convicts, as they were
neither of the civil nor military authorities of the Republic
of Chile ; that Chile was no more liable for their conduct
than if the Florida had been seized by pirates on the
OC628.I] .
Briefs were filed by the Agent of Chile and by the private
counsel for claimant, and the case was fully argued by the
respective Agents and the Assistant Counsel for Chile.
On the part of Chile it was contended that the owner of
the vessel knew the extra-hazardous character of his em-
ployment, and that the Chilean Government cannot be made
accountable for the conduct of the convicts ; that the revolt
was a sudden uprising which Chile could not prevent, and
from which her citizens suffered as much as the claimants.
On the part of the United States it was contended that it
was the duty of the Chilean Government to have provided
for the emergency which confronted Shaw and his vessel,
and have provided an ample and sufficient escort or guard
so as to quell or overcome any outbreak or disturbance;
that Sandy Point was within the dominion and control of
Chile, and Shaw had the legal and moral right to rely on the
assurance and guaranty that his life was safe in disembarking
his prisoners at the penal colony ; that the Government of
a State has to bear the responsibility, so far as concerns
177
foreign powers, of depredation committed by its subjects :
citing Wharton's Commentaries on Law, sec. 144; that the
Government of Chile had deprived the convicts of their
liberty, they were under its charge and keeping and it was
bound to see that they were safely kept ; that they were
known to be a dangerous element, and that it was the duty
of the Chilean authorities to provide suitable and sufficient
forces to prevent any insurrection or outbreak on the part
of prisoners; that there was a distinction between such an
outbreak and an ordinary popular commotion or mob.
The Commission, quoting Wattel, section 73; Calvo, Dic-
tionnaire Responsabilité, II, 172, Marten's Volkerecht, I,
428; Calvo, Droit International, 363, as their authority, say:
“In the case of the Florida the memorialist admits that a
rebellion against the Chilean Government had taken place and
had been successful; that the Chilean Government and also
the Chilean citizens suffered great damage in consequence
of said rebellion, as the governor and garrison at Sandy Point
had been killed by the convicts. At the time these events
had occurred the Chilean Government had no power to pre-
vent in the interest of the bark Florida the consequences of
a rebellion entirely unknown to it, and did therefore in no
way fail to perform its international duties for the protection
of foreign citizens residing in Chile or landing at Sandy
Point; therefore the Chilean Government cannot be held
responsible for the acts committed by revolted convicts, and
the demurrer of the respondent Government should be, and
is, sustained.”
CONCLUSION.
In addition to the cases that were disposed of by the
Commission and which have been heretofore mentioned, the
following cases: i -
No. 18. The South American Steamship Co. v. United
States, claim for $226,242, U. S. gold coin ;
No. 27. Ricardo L. Trumbull v. United States, claim for
$6,000, U. S. gold coin ;
178
No. 33. Julia L. Williams and Frank A. Robinson et al. v.
Republic of Chile, claim for $130,600, U. S. gold coin; .
No. 35. Austin D. Moore v. Republic of Chile claim for
$15,930, U. S. gold coin ;
No. 37. James M. Hallowes v. Republic of Chile, claim for
$117,266, Chilean currency, and $10,400, U. S. gold coin ;
No. 40. William W. C. Dodge v. Republic of Chile, claim
for $5,387, gold coin U. S., - -
could not be made ready for submission to the Commission,
under the rules thereof, within the time-limit of the treaty,
and if they had been ready, as the sequel shows, could not
have been disposed of by the Commission. -
The following cases:
No. 3. Henry Chauncey v. Republic of Chile, claim for
$1,435,815, gold coin U. S.; -
No. 25. Andrew Moss v. Republic of Chile, claim for $74,-
092, U. S. gold coin ; - -
No. 42. Peter Bacigalupi v. Republic of Chile, claim for
$49,362, U. S. gold coin,
were submitted by both parties, but the Commission, for
lack of time, failed to consider the same, and so announced
at their last meeting.
The following cases: ,- -
No. 7. The North & South American Construction Co. v.
Republic of Chile, claim for $6,334,000, U. S. gold coin ;
No. 8. Kate E. Leach et al. v. Republic of Chile, claim
for $517,500, U. S. gold coin ;
No. 12. Michael O’Brien et al. v. Republic of Chile, claim
for $40,811, U. S. gold coin ; -
No. 14. Clifford D. Blodgett v. Republic of Chile, claim
for $3,972, U. S. gold coin ; * →
No. 26. Henry Chauncey et al. v. Republic of Chile, claim
for $60,427, U. S. gold coin ;
No. 30. Henry S. Prevost et al. v. Republic of Chile, claim
for $7,829, U. S. gold coin ; - .
No. 31. Grant Walker et al. v. Republic of Chile, claim for
$76,409, U. S. gold coin; -
179
No. 32. George W. L. Mayers v. Republic of Chile, claim
for $88,286, U. S. gold coin ;
No. 41. Mauricio Level: ". The Republic of Chile, claim
for $279,800, U. S. gold coin, -
were submitted on the part of the United States, but were
not submitted on the part of Chile, the time-limit prevent-
ing the necessary testimony from being taken ; consequently
the cases were not passed upon by the Commission.
These undisposed-of cases against the United States, ac-
cording to the claim of the memorials, including interest,
amount to $232,240, U. S. gold; and the cases against Chile,
according to the claim of the memorials, including interest,
amount to $9,130,620, the greater proportion being for in-
terest.
In view of the inability to dispose of these cases, on
motion of the Agent of the United States, there being no
objection on the part of Chile, the Commission unanimously
made the following order on the 9th of April, 1894:
“Whereas under the provisions of the treaty between the
United States and Chile, signed at Santiago, August 7, 1892,
under which this Commission has been acting, the Commis-
sioners are ‘bound to examine and decide upon every claim
within six months from the day of their first meeting for
business,' which said first meeting was held October 9,
1893; and
“Whereas said six months expire April 9, 1894; and
“Whereas there are still pending claims of the citizens of
either country against the other country in which the evi-
dence has not been completed under the rules of the Com-
mission, and other cases are pending in which the United
States has completed the testimony and closed the cases,
but in which Chile has not yet completed her testimony, and
other cases in which both countries have closed but not sub-
mitted, and other cases which have been closed and sub-
mitted, which said cases time will not permit this Commis-
sion to hear and consider; and
“Whereas it is evident that every endeavor of the parties
has been made to submit these cases to the Commission,
but the shortness of the time-limit of the treaty and the
180
length of time required to take testimony in Chile and Peru
have prevented any result of the proceedings of the Commis-
sion therein without fault on the part of claimants : -
“Therefore, it is ordered that all cases presented to but
not finally determined by the Commission be remitted to
the respective Governments of the United States and Chile
for such disposition as they may hereafter agree upon.”
The Commission instructed the Secretaries to transmit a
duly certified copy thereof to the two Governments.
The Agent of the United States then presented a draft of
a final award and a schedule of the cases considered and
determined by the Commission, and, there being no objec-
tion on the part of Chile, it was unanimously adopted, and
may be found on pp. 152 to 157, inclusive, of the minutes.
The Commission then made orders in regard to the com-
pletion of their records and the indexing and printing and
binding of the minutes and decisions and the reports of the
Agents and counsel, and for the delivery of all papers, doc-
uments, and evidence before the Commission and the origi-
mal records to the State Department of the United States,
and one copy of the original records to the Government of
Chile, and to wind up in the shortest possible time the bus-
iness of the Commission, and to sell at public sale the Office
furniture purchased by the Commission and pay the pro-
ceeds to the State Department of the United States for
proper disposition. -
The Honorable President, in his closing remarks, ex-
pressed regret that they were unable to dispose of all the
business, and expressed a hope that the two contracting
Governments would “by future understanding afford the
claimants whose claims have not been settled an opportunity
to obtain judgment thereon in harmony with the generous
and peaceful intentions which animated the framing of the
Convention at Santiago, and also the hope that the work of
the Commission had contributed to the cementing of the
good relations between the contracting Governments,” and
181
on the said 9th of April, 1894, at 8 P. M., the Commission
adjourned sine die. *
I feel it my duty to call attention to the fact that on the
8th day of December, 1893, which under the rules was the
last day for filing claims before the Commission, inasmuch
as Art. I of the treaty provides that all claims against either
Government shall be referred to three Commissioners, &c.,
and as Art. TV required the Commissioners to declare
that they would examine and decide all claims within the
description and true meaning of Articles I and II which
shall be laid before them on the part of the United States
and of Chile, respectively, and in view of Article XI, which
bars all claims whether presented to the Commission or not
under certain circumstances, I deemed it to be my duty to
present to the Commission all documents and papers on
file in the State Department of the United States in claims
against the Republic of Chile for such disposition as the
Commission might determine. In these claims there was no
compliance on the part of the claimants with the rules re-
quiring memorials to be filed in English and Spanish, but
being of the opinion that it was the duty of the Commission
to consider the same, and as the Venezuelan Claims Com-
mission had decided that it was its duty to dispose of all
pending claims, these were presented for the purpose of pre-
serving whatever rights the claimants might have.
Objection was made to the presentation of the same by
the Associate Counsel for Chile on the ground that the Com-
mission could not take any notice of them in the absence of
a memorial. No action was taken by the Commission in the
premises. The list of such cases will be found on page 68
of the minutes.
On the 16th day of December, 1893, the case of the bark
Florida was presented to the Commission under the name
of Frederick H. Lovett et al., No. 43, and cause was shown
why the memorial had not been filed, and leave was granted
to file the same, and the case disposed of on demurrer, as
hereinbefore stated.
182
Subsequently, on February 13, 1894, a memorial and affi-
davits showing why the same had not been presented in time
were filed in the case of Josephine P. de Ruden, and per-
mission asked to file the same in the name of Carolina
Valencia, which, on February 16, the Commission refused, on
the ground that the reasons given for the delay in presenting
this claim were not satisfactory. -
On the 7th day of December, 1893, the next to the last
day under the rules for filing memorials, I received by mail
a paper purporting to be a claim of James Montgomery
against Chile on account of the “Cochet” claim for one-third
of the guano in Peru ; said claim being based on the alleged
discoveries of guano by one “Cochet,” and claiming, with
interest, $1,475,000,000. As this memorial in no way com-
plied with the rules, no printed copies in English and Spanish
being filed, and there being no documents or papers of any
kind showing on what the claim was based, and not being
sworn to before an officer attaching his seal, or showing his
official character, and it being too late to remedy these de-
fects, I did not present the claim, and notified the counsel
for the claimant thereof by letter on December 8, 1893, after
which nothing whatever was heard of the said claim.
I trust that it is not improper, in conclusion, for me
to record my sense of obligation to yourself and other
officers of the Department of State and to our Ministers in
Chile and Peru for the prompt assistance rendered me as
the representative of the Government when requested; and
also that my thanks are due to the Secretary of the Com-
mission on the part of the United States for his intelligent
aid in the work before the Commission. It is also a pleasure
to mention the uniform personal courtesy shown me by the
members of the Commission and the representatives of the
Government of Chile. -
I have the honor to be,
Most respectfully,
Your obedient servant,
GEO. H. SHIELDS,
Agent and Counsel for the United States.
I N D E X.
Page
Adoption of rules...... * * * a s a s , º, e s a s a e e s s a c e s s a e s a s & d e º s e º s e a t e s a s e º 'º e s a e s = * * * * * * * * * * * 6
Affidavits from State Department................................................. 54
Affidavits, ea parte, on file in State Department, admissible............. 157
Agent for the United States refused to file claim, in no way comply-
ing with the rules ................................................................... 182
Aggregate amount of claims filed against Chile, including interest.... 9
Aggregate amount of claims filed against the United States, including
interest..................................... ........... ..... ...... ...... ......... . . . . ... 10
“Aid and comfort,” meaning of, in treaty..................................... 141
Aid and comfort to enemies of Chile, a question of jurisdiction under
treaty............................... ........... .................. .......... ...... ..... 129
Amendment of rules..................................................... ............. 9
Amendments to memorials allowed.................... ........................ 83, 149
Application for leave to file memorial by Carolina Valencia............. 182
Assignment of claim a matter of defence ..... * * * * * * * > * * tº e º us tº a s tº e a º e a tº a º ºs º a s º is e 67
Assignment of claim........................ ................. • * * * * * * * * *, * * * * * * * * * * * * * * * 74
Awards................................................................ 19, 32, 41, 74, 75, 79
Award, final, by Commission....................................................... 180
Awards in favor of United States claimants ................................... 10
Bacigalupi, Peter, 9. Chile, No. 4................................................. 173
Blodgett, Clifford D., v. Chile, No. 42 .......................................... 80
Borden, Gilbert B., v. Chile, No. 9...... * * * * * * * * * * * > * * * * * * * * * * * * * * * * * * * * * g e º a g º e º 'º 67
Cases filed ................. .................................. ........................... 9
Cases undisposed of, list of.......................................................... 177
Central and South American Telegraph Co. v. Chile, No. 1............... 11
Chauncey, Henry, v. Chile, No. 3.................................... * * * * * e e s tº e º is e 35
Chauncey, Henry, et al. v. Chile, No. 26......................... .............. 118
Chester, Stephen M., v. Chile, No. 34.............................. ..... tº º e e s tº º 149
Chile, de jure, Spanish colony as to the United States until 1822...... 45–51
Chile responsible for President Balmaceda's orders ........................ 19
Chile responsible for wanton destruction of neutral property........... 32
Citizenship, agreement to be considered a Chilean citizen............... 65
Citizenship, declaration of intention not sufficient under treaty with
Sweden........... & a º 'º & e º 'º a tº e º º a tº e is is ºt * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * e < * * * * * 78
Citizenship, claimant must be a citizen of the United States at time
of injury. Declaration of intention not sufficient........ ....... 77, 89, 116
Citizenship, international rules as to............................................. 77
184
Page.
Citizenship, renouncing the protection of native country ................ 65
Claim disallowed for want of sufficient evidence........................... 53, 156
Claim for damages for arrest and detention of a vessel allowed......... 73
Claim for personal arrest denied................................................... 73
Claimant not bound to resort to the courts of Chile in certain con-
tingencies. .................... ........................................................ 65
Claims coming before Commission................................................ 5
Claims, ea contractu, Commission has jurisdiction of...................... . 121
Claims in which there were no memorials presented........................ 181
Claims prior to recognition of Independence, unless expressly indicated
in the treaty, not within Commission’s jurisdiction...................... 45–51
Claims undisposed of against Chile, amount claimed...................... 179
Claims undisposed of against the United States, amount claimed...... 179
Claims undisposed of remitted to respective Governments............ ... 179
Closing remarks of President Claparède ...................... ... ............. 180
Commission recommends extension of treaty........... ..................... 8
Contraband of war defined............................ . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
Contract made by United States Minister binding on the Govern-
ment ................................... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • * - - - - 4 & 9 º' tº º . 120
Convict uprising, Chile not responsible for....................... ............. 177
Damages, measure of............ • * * * * * * * * * * c e e s e a w s a e º is w e s s a s a s e º e º e s a a º e a º e e s e e e e s a & 73
Didier, Eugene L., et al. v. Chile, No. 5........................................ º 41
De facto government, its powers ........... * * * * * * * * * * * * * * * * * * * * e s is a e º 'º e s tº a º ºs e º 'º º 19
Demurrer cannot be sustained if any item of damages is valid......... 106
Demurrer overruled if memorial shows any good cause of action...... 160
Dismissal of case for want of testimony ............. ........ • * * * * * * * * @ e º a g . 150
Disposition of claims by Commission.................................... ........ 10
Dodge, William W. C., v. Chile, No. 40.................. * * * * * * * * * * * * * * * * * * * g e º 'º a 172
Du Bois, Edward C., v. Chile, No. 2.............................................. 20
Due process of law, an alien prosecuted in the ordinary way for of.
fences against municipal law has no claim for damages if acquitted
in the absence of want of probable cause and malice................... 126
Evidence, affidavits and documents on State Department files admis-
sible... . … ............ .... ...... ................................... ............. 155
Executors may sue without regard to their citizenship..................... 82
Executors must show names, residence, and citizenship of their bene-
ficiaries...... ........................................................................ tº 83
Ea; parte affidavits on file in State Department admissible................ 157
Extension of treaty................. ............ • * * * * * * * * * * * * * * * * * * * * * * * • * > 0 & 6 s a s gº e ºs e 7
Extension of treaty recommended by Commission..... ................. & 8
Extradition, a United States Minister may bind his Government for
counsel fees in obtaining..... ............ ....................................... 120
Filing claims after treaty limit, on good cause shown..................... 181–182
Final award by Commission................. tº a tº e º e º º a t < * * * * * * * * * * * * * * * * * * * * * * * * * * * * * 180
}
Page
First case argued on merits....................... ...... .......................... 11
First day for business fixed......................................................... 7
Florida, the ship......................................... ........ ..................... 175
Gana, Commissioner, dissenting opinions...................... . 19, 33, 64, 66, 73
Goode, Commissioner, dissenting opinions...46, 50, 53, 73, 83, 140, 143, 156,
165, 170
Government, de facto, its powers....... .......................................... 19
Grace Bros. & Co. v. Chile, No. 16......................................... ...... 84
Grace Bros. & Co. v. Chile, No. 19................................................ 107
Grace Bros. & Co. v. Chile, No. 20 ................ • s e º sº a g g g tº a tº e º E tº ſº tº gº gº ºn tº & © tº º 'º gº º is 108
Grace Bros. & Co. v. Chile, No. 21................................................ 109
Grace Bros. & Co. v. Chile, No. 29. ......... ................................... 126
Grace, William R., & Company v. Chile, No. 22................... .... ..... 111
Hallowes, James M., v. Chile, No. 37.................. ..... .................... 158
Hodgskin, T. E., v. Chile, No. 39 (Landreau claim)......... ............... 162
Hope On, the bark............ .................................... .................... 67
Insurgents, Chile not responsible for convict rebellion ........ ........... 177
International relations began between Chile and the United States
when the latter recognized the independence of the former. ......... 45
Itata case, facts shown in record.............................. ................... 90
Judgment by stipulation (Wells, Fargo claim) ..... ................... .... 75
Jurisdiction, claims on contracts with Government may be presented... 121
Jurisdiction, Commission has, although courts of country may afford
a remedy ............................ . ......................................... ...... 121
Jurisdiction, Commission has no, of claim arising before final naturali-
zation papers....................... ................. *, * * * * * * * * * * * * * * * * * * * * * a s is tº e º sº e º sº as 77
Jurisdiction, Commission has no, of claims arising before recognition
of Chile by the United States............................... * * * * * * * * * * * * * * * * * ſº tº e & 46–51
Jurisdiction, Commission has no, unless claimant is a citizen of the
United States............................ • * * * * * * * * * * * * * * * * * * * * * * * * * * - - - - - - - - - - - - - - - - - - 116
Jurisdiction of Commission.................................... ................. ... 65
Landreau claim, Commission declines to dismiss “without prejudice”
but amends entries confining dismissal to the case against Chile.... 172
Landreau claim, decree February 13, 1833, of Peru, not applicable to
case, refers solely to property of convents....... ......................... 618
Landreau claim, facts as stated by Commission ........... .................. 165
Landreau claim, Landreau lacked all interest in the guano deposits
and Chile could legitimately take possession thereof . . . ............... 169
Landreau, John C., v. Chile, No. 38......................... .................... 160
Leach, Kate E., v. Chile, No. 8......................... .......................... 67
Levek, Mauricio, v. Chile, No. 41.................. ............................... 173
186
Page.
Limitation of time for decision of claims .............................. s & tº tº $ tº tº sº. 5
List of undisposed of cases.............. .......................................... . 177
Lovett, Frederick H., et al. v. Chile, No. 43................................. 175–181
Management of “ases .................................................................. 11
Mayers, G. W. L., et al. v. Chile, No. 32 .......... ............................ 147
McKinstry, Andrew, v. Chile, No. 24..................... ..... ................, 116
Measure of damages, loss of use of a vessel .................................... 73
Mob violence, Chile not responsible for damages by revolted convicts 177
Montgomery, James, v. Chile........................................... ........... 182
Moore, Austin D., v. Chile, No. 35................................................ 150
Moss, Andrew, v. Chile, No. 25..................................................... 117
Murphy, Elizabeth C., et al. v. Chile, No. 36...... .... ............... ...... 150
Naturalization, declaration of intention not sufficient...................... 77
Naturalization, until a change of nationality is complete the old rela-
tion subsists............ ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Neutral property destroyed in presence of officers, Chile responsible .
for ...... ................................................... ... & 8 º' tº $ 2 g º ºs tº gº tº º t < * g º e tº gº tº º ſº e g º º . 40
Neutral property taken for the use of armies, Chile responsible for... 40
Neutral property, wanton destruction of....................................... 32
Neutrals within the territorial limits of a country subject to its laws 125
Neutrality laws, prosecution for violation not ground for damages
solely by reason of acquittal.......................................... ........... 126
North and South American Construction Co. v. Chile, No. 7............ g 54
Notice to claimants of first day for business................................ 8–9
O’Brien, Michael, v. Chile, No. 12................................................. 78
Order of Commission remitting undisposed-of cases to the respective
Governments........................... ...................................... • e º 'º º s º e is 179
Order of Commission respecting completion of record, etc............... 180
Organization of Commission......................................................... 6
Owner of a vessel entitled to recover for injuries to it although in
temporary possession of another..... .......................................... 105
Pillage by soldiers absent from regiments.............................. 8 g c e s e e e 40
Polynésian, the ship.................................................................. . 148
Position of Agent of the United States as to rules........................... 7
Practice, case dismissed for not filing amended memorial............ ... 84
Practice, memorials by executors must show names, residence, and
citizenship of their beneficiaries ............................................... 83
Practice, motion to dismiss case on account of transfer of claim
stricken from files............................................................ ..... e 67
Practice, presentation of claims on file in State Department in which
181
no memorials were filed......................................... .......... .......
187
Practice, motion to dismiss on the ground of giving “aid and com-
fort”, etc., presents a question of jurisdiction, claimarit must be
allowed time to produce evidence...... * c e º e º º is tº $ tº ſº e º ſº is a s in sº e º e º e º º ſº tº e s e º tº dº e = p. tº
Practice, naming the persons committing the acts complained of Ilot
required under the rules......................................................... *
Presentation of documents and papers on file in State Department of
the United States in which there were no memorials as required by
Prevost, Henry S., et al. v. Chile, No. 30.......................................
Private counsel of claimants.......................................... ..............
Probable cause, indictment by grand jury prima facie......................
Prosecution for alleged crime no ground for claim, unless justice is
denied................. ....................................................... ..........
Protest of Agent of the United States as to rules.................. ........ &
Read, Jennie R., v. Chile, No. 13.................................................
Relation, recognition of a new state does not relate to a period prior
to such recognition.................................... ........... - * * * * * * * * * * * * * * * is
Robinson, Frank A., v. Chile, No. 33......................................... gº
Secretaries ordered to complete record, etc............ ......... .............
Seizure of vessel in Chilean waters ground for a claim for damages...
Selway, Frederick, v. Chile, No. 17........... ........... ................. ......
Shields, Patrick, v. Chile, No. 23........................................... ......
Shrigley, W. S., v. Chile, No. 4... ....... , a gº tº tº e º tº e º º E 6 is g º & tº º 'º º & © tº e • * * * * * * * * * * * * * * * *
South American Steamship Co. v. United States, No. 18........... .......
State Department files, evidential value.........................................
Subrogation of interest in property unlawfully seized.....................
Surrender of vessel under duress, ground for claim.........................
Thorndike, John L., v. Chile, No. 6..............................................
Time of filing cases.......................... ..... . ". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Treaty substituted Commission for Chilean courts in actions of tort..
Trumbull, Ricardo L., v. The United States, No. 27........................
Trumbull, Ricardo L., v. The United States, No. 28 .......................
Undisposed-of cases, list of ........................ .......... ......... ...........
Undisposed-of claims against Chile, amount claimed.......................
Undisposed-of claims against the United States, amount claimed......
Valencia, Carolina, application for leave to file claim... ....................
“Voluntary aid and comfort,” motion to dismiss on this ground en-
tertained................................................................................
Walker, Grant, et al. v. Chile, No. 31 ............................................
Wanton destruction of neutral property................................. ......
Page.
129
173
181
147
11
126
78
51
147
180
106
86
112
38
90
54
74
106
65
118
121
177
179
179
182
.188
Page.
War, fulfilment of pre-existing contracts no excuse for giving aid and
comfort................... .... ......................................................... 142
War suspends all contracts ....... ......................................... ........ 142
Watson, Charles, ex’r, v. Chile, No. 15 .......................................... 80
Wells, Fargo & Co. v. Chile, No. 10...... .... .................................. 74
Whaling vessel detained, damage loss of use................................. . . 73
Williams, Julia L., adm’x, v. Chile, No. 33..................................... 14.7
Wilson, Charles G., v. Chile, No. 11.............................. ............... 75
tº s. Tº...a..., ºt..., 1834–1443 cº-fºr- //a44. se )
C O N V E N TI O N
* BETWEEN
THE UNITED STATES OF AMERICA AND THE REPUBLIC
*. OF CHILE,
FOR THE
SETTLEMENT OF CERTAIN CLAIMS OF THE CITIZENS OF EITHER
COUNTRY AGAINST THE OTHER.
*
Signed at Santiago, August 7, 1892.
Ratification advised by the Senate, December 8, 1892.
Ratified by the President of the United States, December 16, 1892.
Ratifications eachanged, January 26, 1893.
Proclaimed, January 28, 1893.
BY THE PRESIDENT OF THE UNITED STATES OF AMERICA,
A PROCLAMATION.
Whereas, a Convention between the United States of America and
the Republic of Chile, for the settlement of certain claims of the citi-
zens of either country against the other, was concluded and signed by
their respective plenipotentiaries, at the city of Santiago, on the seventh
day of August, in the year one thousand eight hundred and ninety-
, two, which Convention is word for word as follows:
; The United States of America
§ and the Republic of Chile, ani-
3 mated by the desire to settle and
º adjust amicably the claims made
$ by the citizens of either country
§ against the government of the
other, growing out of acts com-
mitted by the civil or military au-
thorities of either country, have
agreed to make arrangements for
that purpose, by means of a Con-
vention, and have named as their
Plenipotentiaries to coufer and
agree thereupon as follows:
The President of the United
States of America, Patrick Egan,
Envoy Extraordinary and Minis-
ter Plenipotentiary of the United
States at Santiago, and the Presi.
Los Estados Unidos de América
i la República de Chile, animados
del deseo de arreglar i concluir
amigablementelos reclamos hechos
por ciudadanos de cualduiera de
los dos países contra el Gobierno
del otro, provenientes de actos
cometidos por las autoridades ci-
viles o militares de cualquiera de
los dos países, han convenido en
hacer un arreglo con ese fin, por
medio de una Convencion, i han
nombrado SuS Plenipotenciarios
para tratar i convenir sobre lo es-
puesto, a Saber:
El Presidente de los Estados
Unidosal Señor don Patricio Egan,
Enviado Estraordinario i Ministro
Plenipotenciario de los Estados
Unidos en Santiago; i el Presi-
1
2
dent of the Republic of Chile, Isi-
doro Errázuriz, Minister of For-
eign Relations of Chile;
Who, after having communi-
cated to each other their respec-
tive full powers, found in good and
true form, have agreed upon the
following articles:—
ARTICLE I.
All claims on the part of cor-
porations, companies or private
individuals, citizens of the United
States, upon the Government of
Chile, arising out of acts com-
mitted against the persons or prop-
erty of citizens of the United
States not in the Service of the
enemies of Chile, or voluntarily
giving aid and comfort to the same,
by the civil or military authorities
of Chile; and on the other hand,
all claims on the part of corpora-
tions, companies or private indi-
viduals, citizens of Chile, upon the
Government of the United States,
arising out of acts committed
against the persons or property of
citizens of Chile, not in the service
of the enemies of the United States,
or voluntarily giving aid and com-
fort to the same, by the civil or
military authorities of the Govern-
ment of the United States, shall
be referred to three Commission-
ers, one of whom shall be named
by the President of the United
States, and one by the President
of the Republic of Chile, and the
third to be selected by mutual ac-
cord between the President of the
United States and the President
of Chile. In case the President of
the United States and the Pres-
dent of Chile shall not agree within
three months from the exchange of
the ratifications of this Conven-
tion to nominate such third Com-
missioner then said nomination of
said third Commissioner shall be
made by the President of the Swiss
Confederation.
dente de la República de Chile al
Señor don Isidoro Errázuriz, Mi-
Distro de Relaciones Esteriores de
Chile.
Quienes, despues de haberse
comunicado recíprocamente sus re-
spectivos Plenos Poderes, i encon-
trádolos en buena i debida forma,
han convenido en los articulos
siguientes:, * --,
ArtícULo I.
Todos los reclamos entablados
por corporaciones, compañías o in-
dividuos privados, ciudadanos de
los Estados Unidos, contra el Go-
bierno de Chile, derivados de actos
cometidos por las autoridades ci-
viles o militares de Chile contra
las personas o propiedad de ciu-
dadanos de los Estados Unidos
que no estén al servicio de los ene-
migos de Chile, ni hayan prestado
a estos voluntariamente ayuda i
auxilio, i por la otra parte, todos
los reclamos de corporaciones, com-
pañías o individuos privados, ciu-
dadanos de Chile, contra el Gobie-
rno de los Estados Unidos, deri-
vados de actos cometidos por las
autoridades civiles o militares de
los Estados Unidos contra las per-
sonas o propiedad de ciudadanos
de Chile, que no estén al servicio
de los enemigos de los Estados
Unidos ni hayan prestado a estos
voluntariamente ayuda i auxilio,
serán sometidos a tres Comisio-
nados, de los cuales uno será nom-
brado por el Presidente de los
Estados Unidos de América, otro
por el Presidente de la República
de Chile i el tercero será elejido
por mútuo acuerdo entre el Presi-
dente de los Estados Unidos i el
Presidente de Chile. . En caso de
que el Presidente de los Estados
Unidos i el Presidente de Chile no
se pusieren de acuerdo, dentro de
los tres meses subsiguientes al
canje de las ratificaciones de esta
Convención, acerca del nombra-
miento del tercer Comisionado, el
nombramiento de este tercer Co-
misionado será hecho por el Presi-
dente de la Confederacion Suiza. -
¿
ARTICLE II.
y «-
The said Commission, thus con-
stituted, shall be competent and
obliged to examine and decide
upon all claims of the aforesaid
character presented to them by
thecitizens ofeither country.
ARTICLE III.
In case of the death, prolonged
absence or incapacity to serve of
one of the said Commissioners, or
in the event of one Commissioner
omitting, or declining, or ceasing
to act as such, then the President
of the United States, or the Presi-
dent of the Republic of Chile, or
the President of the Swiss Confed-
eration, as the case may be, shall
forthwith proceed to fill the va-
cancy so Occasioned by naming
another Commissioner within three
months from the occurrence of the
VacanCy.
ARTICLE IV.
The Commissioners named as
hereinbefore provided shall meet
in the City of Washington at the
earliest convenient time within
six months after the exchange of
ratifications of this Convention,
and shall, as their first act in so
meeting, make and subscribe a
solemn declaration that they will
impartially and carefully examine
and decide, to the best of their
judgment and according to public
law, justice and equity, without
fear, favor or affection, all claims
within the description and true
meaning of Articles Iand II., which
shall be laid before them On the
part of the Governments of the
United States and of Chile respec-
tively; and such declaration shall
be entered On the record of their
proceedings; Provided, however,
that the concurring judgment of
any two Commissioners shall be
adequate for every intermediate
decision arising in the execution
of their duty and for every final
award.
ARTÍCULO II.
La espresada Comision formada
así, tendrá facultad i obligacion de
examinar i decidir todos los recla-
mos de la naturaleza antes indicada
que le fueren presentados por los
ciudadanos de uno i otro país.
ARTÍCULO III.
En caso de muerte, ausencia pro-
longada ó incapacidad para servir
de uno de los referidos Comisio-
nados, ó en el evento de que un
Comisionado rehuse ó cese de obrar
como tal, el Presidente de los Esta-
dos Unidos o el Presidente de Chile,
o el Presidente de la Confederacion
Suiza, segun fuere el caso, proce-
derá sin demora a llenar la vacante
así ocasionada, nombrando otro
Comisionado dentro de los tres
meses contados desde que ocurrió
la Vacante.
ARTÍCULO IV.
Los Comisionados nombrados en
la forma antes establecida, se re-
unirán en la ciudad de Washington
a la mayor brevedad posible i den-
tro de los seis meses posteriores al
canje de las ratificaciones de esta,
Convencion, i como primer acto en
esa reunion formularán i suscribi-
rán una solemne declaracion de
que ellos examinarán imparcial i
cuidadosamente, segun su mejor
entender, i de acuerdo con el de-
recho público, la justicia i la equi-
dad, sin temor, favor, ni afeccion,
todos los reclamos comprendidos
en la enumeracion i verdadero
significado de los artículos I i II,
que les fueren presentados de parte
de los Gobiernos de los Estados
Unidos i de Chile, respectivamente;
ital declaracion será anotada en el
acta; entendiéndose sin embargo
que el juicio uniforme de dos Comi-
sionados bastará para tomar cual-
quiera resolucion interlocutoria que
se produzca, en el ejercicio de sus
funciones i para cualquiera senten-
cia definitiva.
ARTICLE V.
The Commissioners shall, with-
out delay, after the organization
of the Commission, proceed to ex-
amine and determine the claims
specified in the preceding articles,
and notice shall be given to the
respective Governments of the day
of their organization and readiness
to proceed to the transaction of
the business of the Commission.
They shall investigate and decide
said claims in such order and in
Such manner as they may think
proper, but upon such evidence or
information only as shall be fur-
nished by or on behalf of the re-
spective Governments. They shall
be bound to receive and consider
all written documents or state-
ments which may be presented to
them by or on behalf of the respec-
tive Governments in support of,
or in answer to, any claim, and to
hear, if required, one person on
each side whom it shall be compe-
tent for each Government to name
as its Counsel or Agent to present
and support claims on its behalf,
On each and every separate claim.
Each Government shall furnish at
the request of the Commissioners,
or of any two of them, the papers
in its possession which may be
important to the just determina-
tion of any of the claims laid be-
fore the Commission.
ARTICLE VI.
The concurring decisions of the
Commissioners, or of any two of
them, shall be conclusive and
final. Said decisions shallin every
case be given upon each individual
claim, in writing, stating in the
event of a pecuniary award being
made, the amount or equivalent
value of the same in gold coin of
the United States; and in the event
of interest being allowed on such
award, the rate thereof and the
period for which it is to be com-
puted shall be fixed, which period
shall not extend beyond the close
ARTfoulo V.
Los Comisionados procederān
sin tardanza, una vez organizada
la Comision, a examinar i ordenar
los reclamos especificados en los
articulos precedentes, idarán aviso
a sus Gobiernos respectivos del
día de Su organizacionide hallarse
prontos para iniciar los trabajos
de la Comision. Ellos investigarán
i decidirán los indicados reclamos
en el Órden i forma que juzguen
propios, pero Solo en Vista de las
pruebas o informaciones que les
Serán Suministradas por o de la
parte de los Gobiernos respectivos.
Estarán obligados a recibiri tomar
en cuenta todo documento o es-
posicion escritos que se les presen-
tare poro de parte de los respec-
tivos Gobiernos en apoyo o en
contestacion a algun reclamo, i a
oir, si se creyese necesario en todos
O en cadauno de los reclamos sepa-
radamente, a una persona de cada
lado que cada Gobierno está facul-
tado para nombrar Como Su abo-
gado o ajente para presentar i
Sostener reclamos de Su parte.
Cada uno de los Gobiernos Sumi-
nistrará, a peticion de los Comisio-
nados, o de cualesquiera dos de
ellos, los papeles que posea i que
Sean de importancia para la justa
apreciacion de algunos de los
reclamos presentados a la Comi-
SIOIl.
ARTICULO VI.
LaS resoluciones unanimes de los
Comisionados o de cualquiera dos
de ellos serán concluyentesi defini-
tivas. Tales decisiones serán pro-
nuncianada's en cada Caso Sobre
cada reclamo en particular, por
escrito, estable.ciendo, en el caso
de que se dé una sentencia que
importe un pago, el monto O Valor
equivalente de la Suma en moneda
de oro de los Estados Unidos, i en
el caso de que ental sentencia se
concedan intereses, deberá fijarse
eltipo de estos i el periodo durante
el cual deban Sercomputados, perí,
5
of the Commission; and said de
cision shall be signed by the Com-
- missioners concurring therein.
d
}
ARTICLE VII.
The High Contracting Parties
hereby engage to consider the de-
cision of the Commissioners, or of
any two of them, as absolutely
final and conclusive upon each
claim decided upon by them, and
to give full effect to such decisions
without any objections, evasions,
or delay whatever.
ARTICLE VIII.
Every claim shall be presented
to the Commissioners within a pe-
riod of two months reckoned from
the day of their first meeting for
business, after notice to the re-
spéctive Governments as pre-
scribed in Article V of this Con-
vention. Nevertheless, where rea-
sons for delay shall be established
to the satisfaction of the Commis-
sioners, or of any two of them, the
period forpresenting the claim may
be extended by them to any time
not exceeding two months longer.
The Commissioners shall be
bound to examine and decide upon
every claim within six months from
the day of their first meeting for
business as aforesaid; which period
shall notbe extended except onlyin
case of the proceedings of the Com-
mission shall be interrupted by
the death, incapacity, retirement
or cessation of the functions of any
one of the Commissioners, in which
event the period of Six months
herein prescribed shall not be held
to include the time during which
such interruption may actually
exist.
Pt shall be competeñt in each
case for the said Commissioners
to decide whether any claim has,
or has not, been duly made, pre-
ferred, and laid beforethem, either
- asesº
odo que no deberá estenderse mas
allá de la clausura de la Comision,
i el referido fallo será suscrito por
los Comisionados que hubieren
tomado parte en él.
ARTÍCULO VII.
Las Altas Partes Contratantes
Se comprometen a considerar la,
decision de los Comisionados o de
cualesquiera dos de ellos, como
absolutamente final i concluyente
sobre cada reclamo resuelto por
ellos i a dar cumplido efecto a cada,
sentencia sin objeciones, evasivas
o dilatorias de cualquiera clase.
ARTÍCULO VIII.
Cada reclamo será presentado a
los Comisionados dentro del perí-
odo de dos meses contados desde
el día de su primera sesion de tra-
bajo, despues de haber comunicado
el hecho a los respectivos Gobier-
nos, como lo prescribe el artículo
V de esta convencion. Sin em-
bargo, si se alegaren, en favor del
retardo, razones satisfactorias para
los Comisionados o para cuales-
quiera dos de ellos, el plazo para
presentar el reclamo puede ser
estendido por ellos dentro de un
período que no exceda de dos meses.
Los Comisionados estarán obli-
gados a examinar i resolver cada,
reclamo dentro de los seis meses
contados desde el día de suprimera
reunion de trabajo, como antes se
ha dicho, cuyo período no será
ampliado escepto solamente en el
caso de que los trabajos de la
Comision fueran interrumpidos por
la muerte, incapacidad, retiro o
cesacion de funciones de algunos
de los Comisionados, i, en este caso,
el período de seis meses aquí pres-
crito no se entenderá que abraza,
el tiempo duranteel cual tal inte-
rrupcion pueda durar.
Los referidos Comisionados están
facultados para decidir en cada,
caso si un reclamo ha sido ó no de-
bidamente hecho, espuesto, pre-
sentado i sostenido ante ellos, ya
wholly, orto any and what extent,
according to the true intent and
meaning of this Convention.
ARTICLE IX.
All sums of money which may
be awarded by the Commissioners
as aforesaid, shall be paid by the
One Government to the other, as
the case may be, at the capital of
the Government to receive such
payment, within six months after
the date of the final award, with-
out interest, and without any de-
duction save as specified in Ar-
ticle X.
ARTICLE X.
The Commissioners shall keep an
accurate record and correct min-
utes or notes of all their proceed-
ings, with the dates thereof; and
the Governments of the United
States and of Chile may each ap-
point and employ a Secretary
Sversed in the languages of both
countries, and the Commissioners
may appoint any Other necessary
Officer Or officers to assist them in
the transaction of the business
which may come before them.
Each Government shall pay its
own Commissioner, Secretary and
Agent Or Counsel, and at the same
or equivalent rates of compensa-
tion, as near as may be, for like
officers on the One Side as on the
other. All other expenses, includ-
ing the compensation of the third
Commissioner, which latter shall
be equal or equivalent to that of
the other Commissioners shall be
defrayed by the two Governments
in equal moieties.
The whole expenses of the Com-
mission, including contingent ex-
penses, shall be defrayed by a rata-
ble deduction On the amount of the
Sums awarded by the Commission-
ers, provided always that such de-
duction shall not exceed the rate
of five per centum on the sum so
awarded. If the whole expenses
fuese en el todo ó en alguna parte,
de acuerdo con el verdadero pro-
pósito e intelijencia de esta Con--
VGIOC1OOl.
ARTÍCULO IX.
Todas las sumas en dinero que
los Comisionados ordenaren pagar,
en la forma anterior, serán cubier-
tas por un Gobierno al otro, segun
fuere el caso, de manera que el
Gobierno pueda recibir en su capi-
tal dicho pago, dentro de los seis
meses posteriores a la fecha, de la
sentencia definitiva, sin intereses
i sin otra deduccion que la especi-
ficada en el artículo X.
ARTÍCULO X.
Los Comisionados llevarán un
prolijo rejistro i correctas actas o
notas de todos los procedimientos
con sus respectivas fechas, i los
Gobiernos de los Estados Unidos,
i de Chile pueden cada cual nom-
brar i ocupar un Secretario ver-
sado en el idioma de ambos países,
i los Comisionados pueden nom-
brar algun otro empleado o emple-
ados necesarios que les ayuden en
el despacho de los asuntos que
pendieren ante ellos.
Cada Gobierno pagará su propio
Comisionado, Secretario y Ajente
o abogado, i la remuneracion será
tan equivalente cuanto fuere posi-
ble para los empleados de una u
Otra parte.
Todos los demas gastos, inclu-
yendo la remuneracion del tercer
Comision&do, la cual será igual ó
equivalente a la de los otros Co-
misionados, será pagado por los
dos Gobiernos por mitad.
Todos los gastos de la Comision,
incluyendo desembolsos imprevis-
tos, serán pagados con una deduc-
cion a prorrata del monto de las
sumas falladas por la Comision,
con tal que dicha deduccion no
exceda, la cuota del cinco por ciento
de las sumas falladas. Si el valor
total de los gastos excediere esta
shall exceed this rate, then the ex-
cess of expense shalf be defrayed
jointly by the two Governments in
equal moieties.
ARTICLE XI.
The High "Contracting Parties
agree to consider the result of the
proceedings of the Commission
provided for by this Convention as
a full, perfect and final settlement
of any and every claim upon either
Government within the description
and true meaning of Articles I and
II; and that every such claim,
whether or not the same may have
been presented to the notice of,
made, preferred or laid before the
said Commission, shall, from and
after the conclusion of the proceed-
ings of the said Commission, be
theated and considered as finally
settled, concluded and barred.
ARTICLE XII.
The present Convention shall be
ratified by the President of the
United States, by and with the
advice and consent of the Senate
thereof and by the President of
the Republic of Chile, with the
consent and approbation of the
Congress of the same, and the rati-
fications shall be exchanged at
Washington, at as early a day as
may be possible within six months
from the date hereof.
Intestimony whereof the respec-
tive Plenipotentiaries have signed
the present Convention, in the
English and Spanish languages,
in duplicate, and hereunto affixed
their respective seals.
Done at the city of Santiago the
Seventh day of August, in the year
of our Lord one thousand eight
hundred and ninety-two.
SEAL.] PATRICK EGAN.
;: ISIDORO ERRAZURIZ.
cantidad, el exceso de gastos será
pagado juntamente i por mitad por
los dos Gobiernos.
ARTſculo XI.
Las Altas Partes Contratantes
convienen en considerar el resul-
tado de los trabajos de la Comision
establecida por esta Convencion
como un arreglo completo, perfecto
i final de todos i de cada uno de
los reclamos contra uno i otro Go-
bierno, dentro de la prescripcion i
verdadera intelijencia de los arti-
culos I i II; i, que cada reclamo, ya
Sea que se haya o no elevado a
conocimiento, formulado, sometido
i Sostenido ante la referida Comi-
Sion, será, desde la conclusion de
los trabajos de la Comision, con-
siderado i tenido Como finalmente
resuelto, concluido i finiquitado.
ARTICULO XII.
La presente Convencion será.
ratificada por el Presidente de los
Estados Unidos, con el consejo i
acuerdo del Senado, i por el Presi-
dente de la República de Chile, con
el consentimiento i aprobacion del
Congreso de la misma, i las ratifi-
caciones serán canjeadas en Wash-
ington en el mas breve plazo posi-
ble dentro de los seis meses conta-
dos desde esta fecha.
En testimonio de lo cual los
respectivos Plenipotenciarios han
firmado la presente Convencion en
los idiomas inglés i español, por
duplicado, i le han puesto aqui sus
sellos respectivos.
Hecha en la ciudad de Santiago
el dia siete de Agosto de 1892.
PATRICK EGAN. SEAL
ISIDORO ERRAZURIZ. ſ.SEAL
And whereas the said Convention has been duly ratified on both
parts, and the ratifications of the two governments were exchanged in
the city of Washington on the twenty-sixth day of January, one thou-
Sand eight hundred and ninety-three.
8
Now, therefore, be it known that I, Benjamin Harrison, President
of the United States of America, have caused the said convention to
be made public, to the end that the same and every article and clause
thereof may be observed and fulfilled with good faith by the United
States and the citizens thereof.
In witness whereof I have hereunto set my hand, and caused the
Seal of the United States to be affixed. &
Done at the city of Washington this twenty-eighth day of January,
in the year of our Lord, one thousand eight hundred and ninety-three,
and of the Independence of the United States the one hundred and
Seventeenth.
[SEAL.] BENJ. HARRISON.
By the President:
JoBN W. FostER,
Secretary of State.
C
¿L S a---e. cé-4 ---- e—ée crecº- C'e-r. -ºr a Areº º e-4. º" o,
ºye
RULEs OF THE CoMMISSION FOR THE
SETTLEMENT o F CLAIMS UNDER TERE
CoNVENTION OF AUGUST 7, 1892,
BETwEEN THE UNITED STATEs oE
AMERICA AND THE REPUBLIC oF
CHILE.
I.
The claims shall be entered in the
docket provided for the purpose in
their order of presentation, and shall
be numbered consecutively, begin-
ning with the claim first presented
as number one. The style of each
case shall be:
, Claimant,
No. —, against
The Republic of Chile:
OI”
, Claimant,
No. —, against
The United States.
II.
The claimant shall file in the office
of the Commission, at any time be-
fore the ninth day of December,
1893, a memorial setting forth in
plain and concise terms, and without
repetition, the facts constituting the
grounds of the claim and relied on
as entitling the claimant to relief
under the convention, filing also
therewith all documents in his pos-
session and at his command; but
the Commission, for good cause
shown, may extend the time for
filing such memorial.
III.
a. This memorial shall state the
name and present residence of the
claimant, and the place ofº his resi-
dence at the time when the acts
complained of occurred;
REGLAMENTO DE LA CoMISIóN CREADA
PoR LA CoNVENCIÓN DE AGosTo 7
DE 1892, PARA EL ARREGLO DE LAs
RECLAMACIONES ENTRE LA REPÚB-
LICA DE CHILE Y Los EsTADos
UNIDos DE AMÉRICA.
I.
Las reclamaciones se asentarán en
un rejistro destinado al efecto, en el
órden de presentación y se les dará
el número que les corresponda, em-
pezando por la primeramente presen-
tada, que llevará el número uno.
El título de cada caso será:
, reclamante,
No. —, contra
la República de Chile :
Ó
, reclamante,
No. —, contra
los Estados Unidos.
II.
El reclamante presentará á la
oficina de la Comisión antes del 9
de Diciembre de 1893, un memorial
donde se establezcan en términos
claros y concisos, sin repeticiones,
los hechos constitutivos de los funda-
mentos de la reclamación, y que se
consideren como buen título del
reclamante para ser amparado por
la Convención, presentando al mismo
tiempo, todos los documentos que
estén en su poder y á su alcance;
pero la Comisión, por causa justi-
ficada, puede prorogar el plazo para
la presentación de dicho memorial.
III.
a. Este memorial deberá espresar
el nombre y actual residencia del
reclamante, y el lugar de su resi-
dencia al tiempo en que ocurrieron
los hechos que dieron lugar á la
reclamación.
b. Also whether the claimant is at
the time he files his memorial a
citizen of Chile or of the United
States, by birth or naturalization,
and whether he was such when the
claim Originated;
c. Also a clear and detailed state-
ment of the cause of action—that is
to Say, the amount claimed, the place
and date of the acts from which it
Originated, the kind, quantity, and
value of the property destroyed or
injured, the kind of money in which
the damage is estimated, and all the
facts and circumstances in regard to
the loss Or damage for which indem-
nity is asked; and also, if known to
the claimant, the name, rank, or em-
ployment of the persons committing
the acts complained of.
d. All claims for interest shall be
separately stated, including the rate
demanded and the time covered.
e. If the claim or any part thereof
is alleged to have arisen from acts
upon the high seas, the names of
the vessels concerned, the part taken
by each, with the names of the com-
manding Officers, if known, and in
the service of what governments
respectively engaged, with proper
dates and localities, must be stated.
.f. If any transfer of the claim or
any part thereof has occurred, the
memorial must state how, when, by
what means, for what consideration,
and to and by whom the same has
been made.
g. If the claim is for property
taken, lost, or injured, for which
any voucher, receipt, memorandum,
Or any writing was given, a copy
thereof must be attached to the
memorial, or reason assigned for
not so doing. If not attached, the
names of the parties to it and its
substance must be given.
b. Así mismo, si el reclamante es
actualmente ciudadano de Chile ó de
los Estados Unidos por nacimiento
ó naturalización, y si lo era cuando
la reclamación tuvo Orijen.
c. Deberá contener también una
exposición clara y detallada de la
reclamación, es decir: su monto, el
lugar y la fecha de los actos que le
han dado orijen; la especie, la canti-
dad y valor de la propiedad destruida
ó damnificada, la calidad de la moneda
en que se estima el daño, y todos los
hechos y circumstancias que tengan
relación con la pérdida ó perjuicio
cuya indemnización se reclama, como
tambien, si lo conociere el recla-
mante, el nombre, grado ó empleo
de las personas que ejecutaron los
actos de que ha nacido la reclama-
ción.
d. Las reclamaciones por intereses,
deberán especificarse separadamente,
espresando la tasa que se pide y el
tiempo á que los intereses se estien-
den.
e. Si se alegare que la reclamación,
ó alguna parte de ella, ha provenido
de actos en alta mar, deberán indi-
carse los nombres de los buques que
intervinieron, la parte tomada por
cada uno, con los nombres de los
oficiales que los mandaban, si fueren
conocidos, y de los respectivos Go-
biernos á cuyo servicio se hallaban,
con las debidas fechas y localidades.
f. Si hubiere ocurrido algún tras-
paso de una reclamación, ó parte de
ella, el memorial deberá espresar
cómo, cuándo, por qué medio, en
virtud de qué consideración, y á
quién ó quiénes, y por quién Ó quiénes
fué hecho el traspaso. º
g. Cuando la reclamación pro-
venga de propiedad tomada, perdida
ó dañada, por la cual se haya dado
algún recibo, memorandum ú otra
escritura ó resguardo, se acompañará
copia del documento al memorial, ó
de no hacerlo así, la razón que se
haya tenido para ello. Si no se
acompaña º la copia del mencionado
documento, se darán los nombres de
las partes que figuran en él, y la
sustancia del mismo.
h. If the claim is made in behalf of
a corporation or joint stock company
or partnership, the nationality of the
same and its domicile must be
stated; and if the claimant is not a
corporation or joint stock company,
the name of each person interested
both at the date the claim accrued
and at the date of verifying the me-
morial, with the proportion of each
person's interest, must be stated.
¿. The claimant must also state in
the memorial whether he has received
any sum of money or any other
equivalent or indemnity for the
whole or part of his losses or
damages suffered, and if so, when
and from whom the same was re-
ceived, and also Whether the claim
was ever presented to any tribunal
of the United States or Chile, and if
so, what disposition was thereof
made by such tribunal.
j. The memorial must conclude
with the distinct statement of the
amount due to claimant for each
cause of action, and the interest
claimed thereon, the aggregate
amount and kind of money claimed,
the sum paid thereon, if any, and the
balance for which judgment is asked.
IV.
The memorial shall be verified by
an oath or afirmation of the claim-
ant, or by one of the several claim-
ants, or if a corporation or joint
stock association by a principal of-
ficer thereof, before some officer au-
thorized by the laws of the place
where verified to administer oaths,
or before a diplomatic Or consular
agent of either government. In case
of impossibility, absence, or any
other reasonable and legitimate
cause the verification cannot be
made by the claimant, the same may
be verified by duly authorized agent,
attorney, or legal representative.
3
h. Si la reclamación se hace á
nombre de una sociedad anónima, se
debe indicar la nacionalidad y el
domicilio de el a, y si á nombre de
una sociedad que no fuere anónima,
los nombres de todas las personas
interesadas á la época en que se
Orijinó la reclamación y en la fecha
en que se presente el memorial, con
la parte proporcional ó interés que
corresponda á cada socio.
¿. En el memorial debe espresar el
reclamante si ha recibido alguna
suma de dinero ú otro equivalente ó
indemnización por todo ó parte de
las pérdidas ó menoscabos sufridos,
y en caso afirmativo, cuándo y de
quién se recibió, como asi mismo, si
la reclamación ha sido antes pre-
sentada á algún tribunal de los
Estados Unidos ó de Chile, y que
resolución ha recaído en ella, caso de
haber sido presentada.
j. El memorial concluirá estable-
ciendo claramente la suma debida al
reclamante por cada item de pérdida
ó daño, y los intereses que por ellos
se reclamen, el total y calidad de la
moneda reclamada, la suma pagada
á cuenta, si alguna se hubiere
pagado, y el saldo por el cual se
entabla el reclamo.
IV.
El memorial deberá ser ratificado
con el juramento ó afirmación
solemne del reclamante ó de alguno
de los interesados en la reclamación,
ó, si se trata de una sociedad
anónima, de uno de los directores de
ella, ante la autoridad competente
según las leyes del lugar donde se
haga la ratificación, Ó ante un ajente
diplomático ó consular de cualquiera
de los dos Gobiernos. En el caso
de imposibilidad, por ausencia ú otro
impedimento justificado y lejítimo,
podrá suplirse esta formalidad por
la ratificación del ajente, mandatario
ó representante legal debidamente
autorizado.
V.
V.
Memorials may be amended at any
time before final submission upon
leave granted by the Commission,
but such amendment shall not in-
clude a new or different cause of ac-
tion.
VI.
If the claim should be preferred
through an agent Or legal repre-
sentative, his authority to act must
be shown to the satisfaction of the
Commission in accordance with the
laws of the country under which he
is appointed.
VII.
It shall not be necessary for the
defendant Government in any case
to deny the allegations of the peti-
tion or the validity of any claim.
But a general denial thereof shall be
entered of record by the Secretaries,
as of course, and thereby all the
material allegations of the petition
shall be considered as put in issue,
and the claimant shall be required to
establish them by legal and suficient
evidence.
VIII.
The filing of the memorial shall
be entered in the notice book men-
tioned in Rule XXI. Within six
days from the filing thereof the
Counsel or Agent of the respondent
country may file any demurrer or
motion thereto, together with his
argument in support of the same;
within six days thereafter the
Counsel or Agent for the opposing
Government shall file his reply
thereto, and the same shall be dis-
posed of by the Commission as soon
as practicable.
Los memoriales podrán enmendarse
en cualquier tiempo antes de ser
sometidos al fallo definitivo de la
Comisión, en virtud de permiso con-
cedido por ésta, con tal que la
enmienda no modifique sustancial-
mente ninguno de los puntos de la
demanda.
VI.
Si la reclamación se hiciere por
medio de un mandatario ó repre-
sentante legal, deberá éste justificar
su personería ante la Comisión con
arreglo á las leyes del país en que
ha sido nombrado.
VII.
En ningún caso tendrá el Gobierno
demandado necesidad de negar las
alegaciones del memorial ni la validez
de la reclamación. Los Secretarios
las darán por negadas en términos
jenerales y como de regla, en el
rejistro respectivo, y por este hecho
todas las alegaciones sustanciales
del memorial se considerarán
objetadas, y el reclamante quedará
obligado á establecerlas con pruebas
legales suficientes.
VIII.
La entrega del memorial deberá
asentarse en el libro de notificaciónes
mencionado en el Art.° XXI. Dentro
del plazo de seis días, contados desde
el ingreso del memorial, el ajente
del país demandado puede oponer
cualquiera excepción ó petición
previa, el propio tiempo que los
argumentos en su apoyo; el ajente
del otro Gobierno tendrá seis días
para entregar su respuesta, y la
Comisión resolverá tan pronto como
sea practicable.
IX.
TX.
If the Agent for the respondent
Government desires to file a special
answer to any memorial, he shall do
so within five days after the decision
of the Commission on the demurrer
or motion, together with all docu-
mentary evidence justifying his an-
swer. In case no demurrer or motion
is filed the respondent Government
may have fifteen days from the filing
of the memorial to file a special an-
swer, and if no special answer is filed
within said fifteen days the secre-
taries shall enter of record a general
denial, as provided in Rule VII.
X.
Within seventy-five days after the
answer, special or general, the claim-
ant shall complete his proofs, and
within seventy-five days after the
claimant announces his proofs are
complete the respondent Govern-
ment must complete its testimony in
defence. The Commission may allow
testimony in rebuttal if necessary.
The Commission may make orders as
to the limit of time within which ar-
guments and briefs shall be made
after the proofs are complete.
XI.
No evidence or information in the
nature thereof will be received, ex-
cept such as shall be furnished by
or through the respective Govern-
ments.
XII.
Additional testimony may be taken
in the form of deposition. The party
Si el ajente del Gobierno de-
mandado desea oponer una contesta-
ción especial sobre el fondo de la
materia de la reclamación debe ha-
cerlo dentro del plazo de cinco días
despues de la decisión que la Comisión
haya pronunciado sobre la excepción ó
petición previa, junto con todos los
papeles y documentos que justifiquen
su respuesta. En caso de que no se
oponga ninguna excepción ó petición
previa, el Gobierno demandado ten-
drá el plazo de quince dias, contado
desde la presentación del Memorial,
para presentar una contestación espe-
cial, y si no se presentare ninguna
contestación especial dentro de los
dichos quince días, los Secretarios
darán por negadas las alegaciones
del memorial en el rejistro respectivo,
según lo prescribe el Artículo VII.
X.
Dentro del plazo de sententa y
cinco dias, despues de la contestación
jeneral ó especial, el reclamante com-
pletará sus pruebas y en los setenta
y cinco días siguientes, despues que
el reclamante ha expresado que sus
pruebas están completas, el Gobierno
demandado deberá completar las
suyas. La Comisión puede permitir
la presentación de prueba testimo-
nial en contrario si lo creyere de ne-
cesidad. La Comisión podrá fijar el
espacio de tiempo dentro del cual
deberán presentarse los argumentos
y alegatos, despues que estén com-
pletas las pruebas.
XI.
No se recibirá prueba ni informa-
ción probatoria que no sea suminis-
trada por ó de parte de los Gobiernos
respectivos.
XII.
Las pruebas testimoniales se ren-
dirán en la forma siguiente: La parte
desiring to takeit shall give ten days'
notice thereof if taken in the United
States, and thirty-five days if taken
Outside of the United States, stating
particularly the place and time of
taking the same, the names and resi-
dences of the witnesses intended to
be examined, and the subject of the
examination. The adverse party ma
appear and cross-examine. After the
deposition has been completed pur-
Suant to such notice the adverse
party may take the testimony of
other witnesses in that vicinity, giv-
ing twenty-four hours' notice thereof
to the Opposing party, his attorney
Or agent, with a list Of the witnesses
proposed to be examined. And the
same Officer shall take the testimony
ofsuch witnesses as in continuation
of Such deposition. Each witness
shall state whether he is concerned
in the claim in controversy, and if so
how, and whether he is related in
business Or otherwise to the claim-
ant.
Such deposition shall be taken by
any officer competent under the laws
of the place where taken. He shall
first swear (or affirm) the witness to
tell the truth, the whole truth, and
nothing but the truth relative to the
cause in which he is about to testify.
He shall then write the questions
desired, following each with the an-
swer of the witness thereto, giving
in every instance the exact words of
the latter. If the attorney or agent
ofeither party make any suggestion
to the witness under examination as
to his answer, the officer shall note
the suggestion in the deposition.
As soon as completed the witness
shall subscribe his deposition and
write his name On the margin of each
sheet containing any part of it.
The officer shall give the style of
the case in the caption of the depo-
sition, and note the time and place
of taking the same, together with
the names of the attorneys or agents
appearing for the several parties.
que desee producirlas, lo anunciará
con diez días de anticipación, si la
prueba debiere rendirse en los Esta-
dos Unidos y con treinta y cinco
días, si la prueba debiere rendirse
fuera de dicho país, indicando con
particularidad el lugar y el tiempo
en que las va á producir, los nombres
y residencias de los testigos que
piensa examinar y la materia del
exámen. La parte contraria podrá
comparecer tambien y contra-interro-
gar á los testigos. Despues que la
deposición ha sido recibida en con-
formidad á estas indicaciones, la
parte contraria puede tomar el testi-
monio de otros testigos de la vecin-
dad, dando de ello aviso con veinti-
cuatro horas de anticipación á la
otra parte, á su apoderado ó ajente,
con una lista de los testigos que se
propone examinar. I el mismo
funcionario tomará el testimonio de
estos testigos á continuación de la
deposición. Cada testigo declarará
si tiene interés en la reclamación
controvertida, cuál es ese interés, y
si tiene relaciones de negocios ú otras
con el reclamante.
La deposición será tomado por el
funcionario competente según la ley
del país en que se rinda la prueba.
Este funcionario hará primero que el
testigo jure (ó prometa solemnemente)
decir la verdad, toda la verdad y nada
más que la verdad respecto del caso
en el cual va á atestiguar. Despues
escribirá las interrogaciones indica-
das, cada una seguida de la corre-
spondiente respuesta del testigo,
exactamente con sus propias palabras.
Si el apoderado ó ajente de alguna
de las partes hiciere al testigo que se
examina alguna sujestión tocante á su
respuesta, el funcionario tomará nota
de la sujestión en la deposición. Tan
luego como haya concluido, el testigo
firmará su deposición y escribirá su
nombre al marjen de cada hoja de
las que la contengan.
El funcionario pondrá el título del
caso á la cabeza de la deposición y
anotará el tiempo en que ha tenido
efecto, junto con los nombres de los
apoderados ó ajentes que hayan com-
parecido por las partes.
At the conclusion of the deposition
he shall certify over his official sig-
nature and seal (if he have One), fur-
nishing evidence of his official char-
acter with his certificate, that the
witnesses were duly sworn (or af-
firmed) as required in this rule be-
fore being examined; that he wrote
the questions and the answers which
they severally gave thereto; saw
them sign the deposition, and that it
was taken at the time and place speci-
fied in the caption. When the depo-
sition shall have been completed and
authenticated as aforesaid, he shall
forthwith inclose the same in an en-
velope or packet, on which, after be-
ing duly sealed, he shall indorse the
title of the case and the names of the
witnesses examined, and, having ad-
dressed the same to the Commission
at Washington, D. C., deposit it in
the proper post office duly stamped.
When received by the Commission it
maybe opened by the secretaries at
the request of either party.
XIII.
The Commission may at any time
specially authorize testimony to be
taken upon written interrogatories
or otherwise, and may also, on mo-
tion or of its own accord, authorize
any claimant or witness to appear
personally before it for examination
or cross-examination. Leading ques-
tions must not be put to a witness
by the party calling him, and the ofi-
cer who takes a deposition, while
noting any, objection of counsel to
any question or answer, shall not
pass upon the same, but shall record
the question or answer as if unob-
jected to. 4
XIV.
On motion, any testimony or mat-
ter that is improper, irrelevant, im-
material, or scandalous shall be
stricken from the record.
Al fin de la deposición certificará,
bajo su firma oficial y su sello (si lo
tiene), que á los testigos se les ha
tomado el juramento ó promesa de-
bidos antes de ser examinados con-
forme á esta regla; cue escribió las
preguntas y las respectivas respuestas
dadas por aquellos; que los vió firmar .
la deposición; y que esta fué fir-
mada en el tiempo y lugar arriba
mencionados. Una vez completada
y autenticada la deposición, como
queda dicho, la incluirá en un sobre
ó paquete en el cual, despues de sel-
larlo bien, pondrá el título del caso y
los nombres de los testigos exami-
nados, y dirijiéndolo á la Comisión en
Washington, D. C., lo depositará en
la oficina de correos correspondiente
con las estampillas requeridas. Re-
cibido en la Comisión, el pliego podrá
ser abierto por los Secretarios á so-
licitud de cualquiera de las partes.
XIII.
La Comisón podrá, en cualquier
tiempo, autorizar especialmente para
que se tomen testimonios por inter-
rogatorios escritos ó por otro medio,
y podrá tambien, á solicitud de parte
ó de propio acuerdo, autorizar la
comparecencia ante ella de cualquier
reclamante ó testigo para examinarlo
ó repreguntarlo. No deben propo-
nerse al testigo por la parte que lo
presenta preguntas que le indiquen
la respuesta que ha de dar, y el fun-
cionario que recibe una deposición, a
la vez que anote las sujestiones que
se hicieren relativas á cualquiera pre-
gunta ó respuesta, no las tomará en
cuenta si no que consignará la pre-
gunta ó la respuesta como si no hu-
biese habido sujestión alguna.
XIV.
A petición de parte, cualquier tes-
timonio ó materia impropia, incon-
ducente, innecesaria ó escandalosa
será borrada del expediente.
XV.
The rules of evidence as to the
competency, relevancy, and effect of
the same shall be determined by the
Commission, with reference to the
convention under which it is created,
the laws of the two nations, the pub-
lic law, and these rules.
XVI.
When an original paper On file in
the archives of either government
cannot conveniently be withdrawn,
a duly certified copy maybe received
in evidence in lieu thereof. Public
official documents, laws and decrees,
published by authority ofeither Gov-
ernment, may be received in evi-
dence, subject to objection as to rele-
vancy, without further authentica-
tion.
XVII.
Motions, demurrers, and written
arguments shall be in the English
language. Memorials shall be in
English and Spanish. All deposi-
tions which maybe taken outside of
the United States under these rules
shall be taken in the language which
the witness ordinarily uses, and if in
any language other than the English,
the testimony shall be accompanied
by a faithful translation into English.
All documentary evidence shall be
submitted in the original language
in which it is written, and if in Span-
ish, shall be accompanied by a faith-
ful translation into English.
XVIII.
The claimant shall file with his
original memorial at least twenty
copies thereof printed in English and
twenty in Spanish. All pleadings
and arguments and briefs of the
Agents and Counsel of the respective
Governments shall be printed by the
XV. *
La suficiencia, pertinencia y efecto
de las pruebas, serán apreciados por
la Comisión de conformidad con la
Convención que la ha creado, con las
leyes de ambas naciones, el derecho
público y este Reglamento.
XVI.
Cuando algún papel orijinal exis-
tente en los archivos de cualquiera
de los dos Gobiernos, no pueda ser
convenientemente desglosado, podrá
recibirse en su lugar, como compro-
bante, una copia de aquél debida-
mente certificada. Los documentos
oficiales, leyes y decretos, publicados
por alguno de los dos Gobiernos,
pueden recibirse como comprobante,
sujetos á objeción respecto á su per-
tinencia, sin más autenticación.
XVII.
Las peticiones, excepciones y ar-
gumentos escritos deberán estar en
idioma inglés; los memoriales en
inglés y castellano. Toda deposi-
ción que según este Reglamento se
tome fuéra de los Estados Unidos
deberá ser recibida en el idioma que
el testigo emplea ordinariamente, y
si se hubiere recibido en cualquier
otro idioma que no sea el inglés, la
deposición será acompañada de una
tradución fiel al inglés. Todos los
papeles y documentos probatorios
serán presentados en el idioma en
que han sido orijinariamente escritos,
y si este idioma fuere el español, de-
berán ser acompañados de una tra-
ducción fiel al inglés.
XVIII.
Al memorial orijinal el reclamante
deberá acompañar, por lo menos,
veinte ejemplares impresos de aquél
en inglés y veinte en castellano. La
Comisión ordenará, cuando lo juzgare
necesario, la impresión de las de-
fensas, argumentos ó alegatos de los
Commission, together
other documents asin their judgment
maybe necessary.
XIX.
The Commission may, upon rea-
sonable cause being shown, extend
the time for pleading, argument, or
taking evidence in any case.
XX.
The order and mode of procedure
which obtain in courts of justice of
both countries will be observed in
proceedings before the Commission
so far as practicable and consistent
with the Convention and these rules.
XXI.
The Secretaries shall keep a record
of the proceedings of the Commis-
sion in a book provided for the pur-
ose for each day of its session,
which shall be read at its mext meet-
ing, and, if no objection be made, or
when corrected, if correction be
needed, it shall be approved and sub-
scribed by the President of the Com-
mission and countersubscribed by
the Secretaries.
They shall keep a notice book, in
which entries maybe made by the
Counsel for either government, and
when made shall be notice to the
opposing Counsel and all concerned.
They shall provide a book of print-
ed forms, under the direction of the
Commission, in which shall be re-
corded its several awards or decis-
ions signed by the Commissioners
concurring therein.
They shall be the custodians of the
papers, documents, and the books of
the Commission, under its direction,
and shall keep the same safe and in
methodical order.
9
with such Agentes de los respectivos Gobiernos,
ó de cualquier otro documento.
XIX.
En caso de petición por causa justi-
ficada, la Comision puede prolongar el
plazo para la presentacion de los argu-
mentos y alegatos, ó para rendir las
pruebas.
XX.
El órden y la manera de proceder
acostumbrados en los tribunales de
justicia de ambos paises se observarán
en los procedimientos ante la Comis-
ión, en cuanto ello sea practicable y
compatible con la Convención y este
Reglamento.
XXI.
Los Secretarios rejistrarán en un
libro destinado al efecto, el acta de
cada sesión de la Comisión, la cual se
leerá en la sesión siguiente, y si no
fuere objetada, ó despues de correjida
en caso de necesitar corrección, será
aprobada y firmada por el Presidente
de la Comisión, y refrendada por los
mismos Secretarios.
Llevarán también un libro de noti-
ficaciónes, donde se anotará la entrega
de los escritos de cualquiera de los
Agentes de los dos Gobiernos, y asen-
tada esta dilijencia se entenderá que
es notificacion suficiente para el
Ajente del otro Gobierno y todos los
interesados.
Tendrán otro libro con encabeza-
mientos impresos, en el cual serán
rejistrados todos los fallos ó decisio-
nes de la Comisión, firmados por los
Comisionados que hayan estado de
acuerdo.
Los Secretarios guardarán con
toda seguridad y órden metódico los
papeles, documentos y libros de la
Comisión, bajo la dirección de ésta.
Upon each paper received by the
Commission they shall indorse the
date ofreceipt and enter a minute
thereof in the docket in the proper
case, and they shall make brief mem-
oranda in such docket under the
proper case of all orders of the Com-
mission, with appropriate dates re-
specting such case. While affording
every reasonable opportunity and
facility to parties and their counsel
to inspect and make extracts from
papers and records, they shall per-
mit none to be withdrawn from the
files of the Commission or taken from
its office, except by its direction duly
entered of record.
XXII.
The docket, minutes of proceed-
ings, and record of awards or decis-
ions shall be kept in duplicate, both
in English and Spanish, One of which
shall be delivered to each govern-
ment at the close of the Commission.
ARTHUR. W. FERGUSSON,
Secretary on the part of the United States.
MARCIAL A. MARTINEZ DE F.,
Secretary on the part of Chile.
WASHINGToN, D. C., January 5, 1894.
10
Recibido un papel por la Comisión
harán constar la fecha de su recibo y
estenderán en el libro de Rejistro un
estracto de su contenido como de
todas las providencias de la Comisión
que recayeren en el mismo caso, con
sus respectivas fechas.
Sin perjuicio de proporcionar á los
Ajentes ó á los interesados todas las
oportunidades y facilidades razona-
bles para examinar y extractar los
papeles y rejistros, prohibirán que
ninguno sea extraido de los archivos
de la Comisión, ni sacado fuera de la
oficina, excepto con autorización de
aquella debidamente anotada en el
libro de Rejistro.
XXII.
El rejistro, el libro de actas y el de
fallos ó decisiones serán llevados por
duplicado, en español é inglés, uno
de los cuales se entregará á cada
Gobierno al terminar la Comisión sus
tareas.
El Secretario por parte de Chile,
MARCIAL. A. MARTINEZ DE F.
El Secretario por parte de los Estados Unidos,
ARTEUR, W. FERGUSSON.
WAsHINGToN, D. C., Enero 5 de 1894.
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IN MEMory of His FATHER
WILLIAM L. PENFIELD
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Hīmūm IIHF

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